author: Mr. Justice Rehnquist Mr. Justice Stevens,

text:
    MOORE et al. v. SIMS et ux.
    No. 78-6.
    Argued February 26, 1979 —
    Decided June 11, 1979

      RehNQtjist, J., delivered the opinion of the Court, in which BurgeR, C. J., and White, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which BreNNAN, Stewart, and Marshall, JJ., joined, post, p. 435.

      David H. Young, Assistant Attorney General of Texas, argued the cause for appellants. With him on the brief were John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Steve Bickerstaff, Kathryn A. Reed, and Ann Clarke Snell, Assistant Attorneys General.

      Windell E. Cooper Porter argued the cause for appellees. With her on the brief were Robert L. Byrd and Martin J. Grimm.

      Briefs of amici curiae urging affirmance were filed by Catherine P. Mitchell and Martin A. Schwartz for Community Action for Legal Services, Inc., et al.; by Gary B. Thomas, Robert B. O’Keefe, and Steven D. Ross for East Texas Legal Services, Inc.; and by Stefan Rosenzweig and Jeanette Ganousis for Wanda Dixie et al.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Title 2 of the Texas Family Code was enacted in 1973 and first went into effect on January 1, 1974. It was amended substantially in the following year. The Title defines the contours of the parent-child relationship and the permissible areas and modes of state intervention. This suit presents the first broad constitutional challenge to interrelated parts of that statutory scheme. It raises novel constitutional questions of the correlative rights and duties of parents, children, and the State in suits affecting the parent-child relationship.

This litigation, involving suspected instances of child abuse, was initiated by state authorities in the Texas state courts in 1976. The state proceedings, however, were enjoined by the three-judge District Court below, which went on to find various parts of Title 2 unconstitutional on their face or as applied. We noted probable jurisdiction. 439 U. S. 925 (1978). This appeal first raises the question whether in light of the pending state proceedings, the Federal District Court should have exercised its jurisdiction. We conclude that it should not have done so and accordingly reverse and remand with instructions that the complaint be dismissed.

I

The appellees in this case, husband and wife and their three minor children, seek a declaration that parts of Title 2 of the Texas Family Code unconstitutionally infringe family integrity. The state-court litigation was precipitated by school authorities who reported to the Texas Department of Human Resources (formerly the State Department of Public Welfare) on March 25, 1976, that a child, Paul Sims, suffered from physical injuries apparently inflicted or aggravated by his father on a visit to the Osborne Elementary School in Houston, Tex. To protect the Sims children and to investigate the extent of any injuries, the Texas Department of Human Resources (hereinafter Department) on the same day took temporary custody of all three Sims children, who were in the school, and had them examined by a physician. The doctor found that the children were battered, and Paul was hospitalized for 11 days.

On the day that it took custody of the children, the Department decided to institute a suit for emergency protection of the children under § 17.02 of the Texas Family Code. The suit was filed in the Harris County Juvenile Court on March 26, 1976, the day after the children were removed from the school. Pursuant to § 17.04 of the Texas Code, the Juvenile Court Judge entered an emergency ex parte order which gave temporary custody of the children to the Department.

Five days later, the appellees appeared in court and moved to modify the ex parte order, the proper procedure for terminating the Department’s temporary custody. A hearing on such a motion is required under Texas law, but the Juvenile Court Judge was temporarily unavailable and the court clerk returned the motion to appellees’ attorney. Rather than renew the motion or appeal the emergency order, appellees filed a petition for a writ of habeas corpus in the same Harris County court. A hearing on that petition was held on April 5, 1976, and on that date the Juvenile Court Judge concluded that venue was properly in neighboring Montgomery County, where the children were residents, and he transferred the proceedings to that county. See Tex. Fam. Code Ann., Tit. 2, § 11.04 (a) (1975). At the judge’s direction, see § 17.05 (b) (2) (Supp. 1978-1979), the Department filed a “Suit Affecting the Parent-Child Relationship” as authorized by § 11.02, which was also transferred to Montgomery County. In addition, the judge issued a temporary restraining order continuing the Department’s temporary custody of the children.

The appellees then had actual knowledge that the action had been moved to Montgomery County. There is no indication that any effort was made to expedite the hearing in that county; the appellees did not request an early hearing from state trial or appellate courts. Nor did they appeal the temporary order. See In re Stuart, 544 S. W. 2d 821 (Tex. Civ. App. 1976). Instead, on April 19, 1976, they filed this action in the United States District Court for the Southern District of Texas, and thereby initiated two months of procedural maneuvers in both the state and federal courts.

On April 20, a temporary restraining order was denied appel-lees by the District Court. A hearing on the application for a preliminary injunction was ultimately set for May 5. When the Department received notice of the federal proceeding on April 22, the pending state proceedings were suspended.

On May 4, however, one day before the scheduled federal hearing, the Simses returned to the state-court system, moving to file an original petition for a writ of habeas corpus in the Texas Court of Civil Appeals. The motion was denied for want of jurisdiction.

The next day, the Federal District Court held that the temporary orders issued by the state court had expired and that the children had to be returned to their parents, although the Department was not enjoined from pursuing a new action in state court. The court noted that it was requesting a three-judge court to consider appellees’ constitutional challenge to Title 2. On May 14, the Department did file a new § 11.02 suit in Montgomery County, and the state court issued a show-cause order and writ of attachment ordering that Paul Sims be delivered to the temporary custody of his grandparents. The court set the show-cause hearing for May 21, but the Simses could not be found for purposes of service and the hearing was reset for June 21. The Simses countered by filing in the United States District Court a second application for a temporary restraining order addressed to the Montgomery County Juvenile Court, which was granted on May 21. The three-judge court on June 7 entered a preliminary injunction enjoining the Department and other defendants from filing or prosecuting any state suit under the challenged state statutes until a final determination by the three-judge court. That determination was made on October 12, 1977, and is the subject of this appeal.

After concluding that abstention under the doctrine of Younger v. Harris, 401 U. S. 37 (1971), was unwarranted because the litigation was “multifaceted,” involved custody of children, and was the product of procedural confusion in the state courts, the District Court addressed the merits of the due process challenges. It surveyed virtually every aspect of child-abuse proceedings in Texas. Sims v. State Dept. of Public Welfare, 438 F. Supp. 1179, 1189-1195. Since we conclude that it should never have embarked on this survey we do not recount it here.

II

Appellants argue that the Federal District Court should have abstained in this case under the principles of Younger v. Harris, supra. The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samuels v. Mackell, 401 U. S. 66, 69 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), the basic concern — that threat to our federal system posed by displacement of state courts by those of the National Government — is also fully applicable to civil proceedings in which important state interests are involved. As was the case in Huffman, the State here was a party to the state proceedings, and the temporary removal of a child in a child-abuse context is, like the public nuisance statute involved in Huffman, “in aid of and closely related to criminal statutes.” Id., at 604. The existence of these conditions, or the presence of such other vital concerns as enforcement of contempt proceedings, Juidice v. Vail, 430 U. S. 327 (1977), or the vindication of “important state policies such as safeguarding the fiscal integrity of [public assistance] programs,” Trainor v. Hernandez, 431 U. S. 434, 444 (1977), determines the applicability of Younger-Huffman principles as a bar to the institution of a later federal action.

In Huffman, we noted those well-established circumstances where the federal court need not stay its hand in the face of pending state proceedings.

“Younger, and its civil counterpart which we apply today, do of course allow intervention in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is ‘ “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” ’ ” 420 U. S., at 611.

The District Court, however, did not rely expressly on these established exceptions to the Younger doctrine in finding that abstention was inappropriate in this case. Rather, it concluded that Younger abstention was not warranted because the action taken by the State of Texas in this case is “multifaceted”; “there is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds.” 438 F. Supp., at 1187.

“Many of the challenged actions taken by the state do not and will not involve any judicial proceeding. Certainly as to these, there is no pending state civil litigation about which even to consider abstention.” Ibid, (footnote omitted).

The court specifically alluded to the allegations regarding the Child Abuse and Neglect Report and Inquiry System (CANRIS), id., at 1187 n. 5, that is, the appellees’ challenge on constitutional grounds to the State’s computerized collection and dissemination of child-abuse information where that information is not the product of a judicial determination of abuse or neglect.

The meaning of the District Court’s reference to this litigation as “multifaceted” is unclear, but two possible interpretations suggest themselves. Under established principles of equity, the exercise of equitable powers is inappropriate if there is an adequate remedy at law. See Douglas v. City of Jeannette, 319 U. S. 157, 164 (1943). Restated in the abstention context, the federal court should not exert jurisdiction if the plaintiffs “had an opportunity to present their federal claims in the state proceedings.” Juidice v. Vail, supra, at 337 (emphasis in original); see Gibson v. Berryhill, 411 U. S. 564, 577 (1973). The pertinent issue is whether appellees’ constitutional claims could have been raised in the pending state proceedings. The District Court’s reference to the child-abuse reporting system reflects a misunderstanding of the nature of the inquiry. That the Department’s suit does not necessarily implicate CANRIS is not determinative. The question is whether that challenge can be raised in the pending state proceedings subject to conventional limits on justici-ability. On this point, Texas law is apparently as accommodating as the federal forum. Certainly, abstention is appropriate unless state law clearly bars the interposition of the constitutional claims.

There are also intimations in the District Court’s opinion that its decision to exert jurisdiction was influenced by a broader and novel consideration — the breadth of appellees’ challenge to Title 2. Thus, the District Court suggests that the more sweeping the challenge the more inappropriate is abstention, and thereby inverts traditional abstention reasoning. The breadth of a challenge to a complex state statutory scheme has traditionally militated in favor of abstention, not against it. This is evident in a number of distinct but related lines of abstention cases which, although articulated in different ways, reflect the same sensitivity to the primacy of the State in the interpretation of its own laws and the-.cost to our federal system of government inherent in federal-court interpretation and subsequent invalidation of parts of an integrated statutory framework.

“The entire statutory scheme by which Texas attempts to deal with the problem of child abuse has been challenged and should be viewed as an integrated whole. This court will not consider part of the scheme and abstain from another part. To do so would seriously jeopardize any hope for an effective statutory scheme and, in the name of comity and federalism, do violence to the state functions those principles seek to protect.” 438 F. Supp., at 1187.

The earliest abstention cases were rooted in notions of equity. In Railroad Comm’n v. Pullman Co., 312 U. S. 496, 498 (1941), the Court observed that the dispute before it implicated “a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” The Court found the “resources of equity” sufficient to accommodate an adjustment which would avoid “the friction of a premature constitutional adjudication” and obviate the need for a federal court to interpret state law without the benefit of an authoritative interpretation by a state court. Id., at 500. Thus evolved the doctrine of Pullman abstention: that a federal action should be stayed pending determination in state court of state-law issues central to the constitutional dispute. Mr. Justice Frankfurter in his opinion for the Court observed:

“The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. There have been as many and as variegated applications of this supple principle, as the situations that have brought it into play. ... New public interests have a higher claim on the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, Fenner v. Boykin, 271 U. S. 240; Spielman Motor Co. v. Dodge, 295 U. S. 89; or the administration of a specialized scheme for liquidating embarrassed business enterprises, Pennsylvania v. Williams, 294 U. S. 176; or the final authority of a state court to interpret doubtful regulatory laws of the state, Gilchrist v. Interborough Co., 279 U. S. 159 . . . .” Ibid.

There are three distinct considerations that counsel abstention when broad-based challenges are made to state statutes, and it is common to see each figure in an abstention decision; for the broader the challenge, the more evident each consideration becomes. There is first the Pullman concern: that a federal court will be forced to interpret state law without the benefit of state-court consideration and therefore under circumstances where a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time — thus essentially rendering the federal-court decision advisory and the litigation underlying it meaningless. Watson v. Buck, 313 U. S. 387, 401-402 (1941); and Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 459-461 (1945). These dangers increase with the breadth of the challenge.

The second consideration is the need for a concrete case or controversy — a concern also obviously enhanced by the scope of the challenge. That is demonstrated by the instant case. For example, appellees challenge § 11.15 of the Texas Family-Code which provides that the standard of proof in any suit affecting the parent-child relationship shall be the “preponderance of the evidence.” The District Court held that in any proceeding involving parental rights, the State must bear as a matter of federal constitutional law a burden of “clear and convincing” evidence. Yet no proceeding was pursued in this case to the point where the standard could be applied, and consequently appellees can point to no injury in fact. A second illustration is the challenge to statutorily authorized pre-seizure investigative procedures: there was apparently no preseizure investigation in this case. Alabama State Federation of Labor v. McAdory, supra, at 461; Public Service Comm’n v. Wycoff Co., 344 U. S. 237, 245-246 (1952).

The final concern prompted by broad facial attacks on state statutes is the threat to our federal system of government posed by “the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes.” Alabama State Federation of Labor v. McAdory, supra, at 471.

“The seriousness of federal judicial interference with state civil functions has long been recognized by this Court. We have consistently required that when federal courts are confronted with requests for such relief, they should abide by standards of restraint that go well beyond those of private equity jurisprudence.” Huffman v. Pursue, Ltd., 420 U. S., at 603.

State courts are the principal expositors of state law. Almost every constitutional challenge — and particularly one as far ranging as that involved in this case — offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests. When federal courts disrupt that process of mediation while interjecting themselves in such disputes, they prevent the informed evolution of state policy by state tribunals. Trainor v. Hernandez, 431 U. S., at 445. The price exacted in terms of comity would only be outweighed if state courts were not competent to adjudicate federal constitutional claims — a postulate we have repeatedly and emphatically rejected. Huffman, supra, at 610-611.

In sum, the only pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims, and Texas law appears to raise no procedural barriers. Nor do appellees seriously argue to the contrary. Rather, they contend that because they were not granted a hearing at the time that they thought they were entitled to one, there was no practical opportunity to present their federal claims. Thus, the issue as posed by appellees is whether the conduct of the state judiciary was such that it in fact denied appellees an opportunity to be heard that was theirs in theory. That claim is related to the District Court’s second theory why Younger abstention was not warranted in this case.

The District Court framed this “second independent basis for the inapplicability of Younger principles” as follows:

“[W]e note that the plaintiffs’ constitutional challenge is directed primarily at the legality of the children’s seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate. See Gerstein v. Pugh, 420 U. S. 103, 108 n. 9 . . . (1975). The denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger.” 438 F. Supp., at 1187.

The reliance on Gerstein is misplaced. That case involved a challenge to pretrial restraint on the basis of a prosecutor’s information alone, without the benefit of a determination of probable cause by a judicial officer. This Court held that the District Court properly found that the action was not barred by Younger because the injunction was not addressed to a state proceeding and therefore would not interfere with the criminal prosecutions themselves. “The order to hold prelim - inary hearings could not prejudice the conduct of the trial on the merits.” Gerstein v. Pugh, 420 U. S. 103, 108 n. 9 (1975). Here the injunction did address the state proceeding and it was not necessary to obtain the release of the children, for they had already been placed in the custody of their parents pursuant to a federal-court order. This Court has addressed the Younger doctrine on a number of occasions since Gerstein. In Juidice v. Vail, 430 U. S., at 336-337, we noted that the teaching of Gerstein was that the federal plaintiff must have an opportunity to press his claim in the state courts and, as noted above, the appellees have not shown that state procedural law barred presentation of their claims — in fact Texas' law seems clearly to the contrary.

As for the argument that the delay in affording the parents a hearing in state court made Younger abstention inappropriate, we cannot distinguish this argument from conventional claims of bad faith and other sources of great, immediate, and irreparable harm if the federal court does not intervene — traditional circumstances where a federal court need not stay its hand. We simply cannot agree that the conduct of the state authorities in this case evinces bad faith; and we do not read the District Court as expressly so finding. That there was confusion is undeniable. It is evident in the uncertainty regarding the effective period of a temporary order under § 11.11 and regarding the propriety of entering that order when venue was in Montgomery County. But confusion is not bad faith, and in this case confusion was the predictable byproduct of a new statutory scheme. The question would be a much closer one had appellees diligently sought a hearing in Montgomery County after the Harris County action was transferred or had they pursued their appellate remedies.

Once it is determined that there is no bad faith, there remain only limited grounds for not applying Younger. The District Court did not find, nor could it have found, “harassment.” Nor could it credibly be claimed that Title 2 is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” Watson v. Buck, 313 U. S., at 402, quoted in Younger v. Harris, 401 U. S., at 53-54.

The District Court placed some reliance on the observation in Younger that there may be other “extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.” Id., at 53. See Perez v. Ledesma, 401 U. S. 82, 85 (1971); Mitchum v. Foster, 407 U. S. 225, 230-231 (1972). The most extensive explanation of those “extraordinary circumstances” that might constitute great, immediate, and irreparable harm is that in Kugler v. Helfant, 421 U. S. 117 (1975). Although its discussion is with reference to state criminal proceedings, it is fully applicable in this context as well.

“Only if ‘extraordinary circumstances’ render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of ‘extraordinary circumstances,’ of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be ‘extraordinary’ in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.” Id., at 124-125.

See Trainor v. Hernandez, 431 U. S., at 442 n. 7.

To gauge whether such extraordinary circumstances exist in this case, we must view the situation at the time the state proceedings were enjoined. On May 21, when the District Court granted a temporary restraining order, and on June 7, when the three-judge court entered a preliminary injunction enjoining appellants from filing or prosecuting any state suit under the challenged state statutes until the District Court had finally determined the questions at issue, the two adult appellees had already successfully obtained possession of their minor children by means of the federal-court order of May 5. The District Court’s order of that date did not enjoin the Department from instituting a new suit in state court, and such a suit was instituted in Montgomery County on May 14., The Montgomery County action was entitled a “Suit Affecting the Parent-Child Relationship,” and the Department’s petition related the documented child abuse and prayed that a writ of attachment issue to protect the minor child, Paul Sims. The state court issued a writ pursuant to § 11.11 directing that Paul Sims be placed in the temporary custody of his grandparents, appointing a guardian ad litem, and setting a hearing to show cause for May 21. The record indicates that appellees absented themselves from home, work, and school, thereby impeding the attachment and service of the show-cause order, and does not indicate that the actual physical custody of Paul Sims was ever surrendered by appellees pursuant to the Montgomery County court writ.

It is in this posture that one must consider the propriety of the District Court’s injunction barring further state proceedings. Paul Sims was within the custody of his parents, and a specific date had been set for the show-cause hearing regarding the writ of attachment, at which time the parents could press their objections. Unless we were to hold that every attachment issued to protect a child creates great, immediate, and irreparable harm warranting federal-court intervention, we are hard pressed to conclude that with the state proceedings in this posture federal intervention was warranted.

Perhaps anticipating this logic, the District Court in this case concluded that “[t]he denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger,” 438 F. Supp., at 1187. Presumably, this conclusion was prompted by the District Court’s observation that “the constitutional issues raised by the plaintiffs reach the application of due process in an area of the greatest importance to our society, the family.” Ibid. But the District Court again inverts traditional abstention logic when it states that because the interests involved are important, abstention is inappropriate. Family relations are a traditional area of state concern. This was recognized by the District Court when it noted the “compelling state interest in quickly and effectively removing the victims of child abuse from their parents.” Id., at 1189. We are unwilling to conclude that state processes are unequal to the task of accommodating the various interests and deciding the constitutional questions that may arise in child-welfare litigation.

We reverse the judgment of the District Court and remand with instructions that the complaint be dismissed.

It is so ordered.

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join,

dissenting.

Before asking whether any of the recognized exceptions to the doctrine of Younger v. Harris, 401 U. S. 37, make it appropriate for a federal court to exercise its jurisdiction to pass on the constitutionality of a state statute, the Court should first decide whether there is a legitimate basis for invoking the Younger doctrine at all. It has never been suggested that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies; for example, a pending charge that the federal plaintiff is guilty of a traffic violation will not justify dismissal of a federal attack on the constitutionality of the State’s child-abuse legislation.

The policy of equitable restraint expressed in Younger “is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Kugler v. Helfant, 421 U. S. 117, 124. Since “no citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts,” Younger v. Harris, supra, at 46, there is no justification for intervention by a court of equity to rule on claims which may be raised as a defense to the criminal prosecution and which, if meritorious, will result in adequate relief in that forum. Moreover, in our federal system, intervention by a federal court with respect to the questions at issue in state proceedings carries with it additional costs in terms of comity and federalism, for it “can readily be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.” Huffman v. Pursue, Ltd., 420 U. S. 592, 604.

The District Court’s conclusion that abstention was inappropriate in this case was based squarely on its finding “that there is for these plaintiffs no 'opportunity to fairly pursue their constitutional claims in an ongoing state proceeding.’ ” In the absence of such an opportunity, Younger is simply inapplicable. Its underlying concerns with comity, equity, and federalism, we have recognized, have little force or vitality where there is no single pending state proceeding in which the constitutional claims may be raised “as a defense” and effective relief secured. “When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.” Steffel v. Thompson, 415 U. S. 452, 462. To be sure, it can be argued that whenever a federal court rules on .the constitutionality of a state statute, it is making a decision that interferes with the operation of important state mechanisms, and performing a task that could equally be performed by a state court. See ante, at 427. But this sort of lesser affront to principles of comity and federalism is not one that justifies a federal court in refusing to exercise the jurisdiction over federal claims that Congress has entrusted to it. As this Court has repeatedly held, if a constitutional violation is alleged, even with respect to the most important state statute, a plaintiff is free to bring his suit in federal court without any requirement that he first exhaust state judicial remedies.

In requiring abstention in this case, the Court, in my judgment, is departing from these well-established principles and extending Younger beyond its logical bounds. The Sims parents sought relief in federal court after 42 days of “diligent efforts” to secure a hearing in state court in order to regain custody of their children. Despite their efforts, they not only failed to regain custody, but also did not even have an opportunity to be heard in a state court. Their constitutional challenge in federal court was “directed primarily at the legality of the children’s seizure and detention for a 42-day period without a hearing” and the statutory scheme which allowed this serious deprivation of liberty to occur.

The only proceeding pending in state court at the time they brought this suit was a “Suit Affecting the Parent-Child Relationship” initiated by the Harris County Welfare Unit on April 5 pursuant to ch. 11 of the Texas Family Code. As of the first hearing in federal court on May 5, the plaintiff-parents had yet to receive notice of this suit, let alone any actual hearing before the judge. Had the federal court not intervened, however, notice would eventually have been provided, assuming compliance with the statute, and an adversary hearing would eventually have taken place. But this does not mean that federal-court abstention was required or appropriate.

In the hearing to be afforded under ch. 11, the state court would be required to decide whether the children should be returned to the custody of their parents or whether their interests would be better served by alternative arrangements for their care. With limited exceptions, the Simses’ suit in federal court had nothing to do with that question. The issues raised by their federal complaint did not go to their fitness as parents or to their rights to permanent custody of their children. Rather, the thrust of their federal complaint was that the procedures employed by the State to gather information and to seize and retain the children pending the formal adversary hearing under ch. 11 violated the Constitution.

As to these constitutional claims, the hearing to be afforded in state court on parental fitness and permanent custody was virtually as irrelevant as a hearing on a traffic violation. It is clearly the case, and the majority does not suggest otherwise, that the Simses could not avoid losing custody of their children at that point by successfully arguing that the State had acted unconstitutionally in its initial seizure of the children, or that a hearing should have been afforded earlier. These claims could not be raised “as a defense to the ongoing proceedings,” Juidice v. Vail, 430 U. S. 327, 330; nothing in the ch. 11 determinations required the court to consider or pass upon the different issues that the Simses sought to raise in federal court.

It may well be, as the majority suggests, that the Simses could have raised their constitutional claims against the State, not in defense, but in the nature of permissive counterclaims. The findings of the District Court, however, suggest the contrary. But even if Texas does allow a party to raise any and all claims against the other party — -no matter how unrelated— in a single proceeding, it certainly does not mandate that he do so. Broadening the scope of the state litigation to encompass new and difficult issues could only complicate and delay the Simses’ efforts to obtain a hearing on the merits of the State’s complaint as promptly as possible. In the meantime, of course, custody of the children would remain with the State and the deprivation of the parents’ interests in the integrity of the family unit would continue.

The Younger doctrine does not require a litigant to pursue such an unwise and impractical course of litigation. Younger does not bar federal-court consideration of “an issue that could not be raised in defense of the criminal prosecution.” Gerstein v. Pugh, 420 U. S. 103, 108 n. 9. The considerations of comity, equity, and federalism underlying that doctrine are no more implicated by the Sims decision that claims unrelated to a pending state proceeding should be brought in federal rather than state court than they are by a similar decision in the absence of an unrelated state proceeding. If there is no requirement that federal plaintiffs initiate constitutional litigation in state rather than federal court in the first instance— and this Court has repeatedly held that there is not — then the coincidence of an unrelated state proceeding provides no justification for imposing such a requirement.

While this factor alone is sufficient to render the Younger doctrine inapplicable, there is an even more basic objection to its application here. Younger abstention in these circumstances does not merely deprive the plaintiffs of their right to initiate new claims in the forum of their choice. Far more seriously, it deprives them of any relief at all. For this state forum could not and did not afford plaintiffs the sufficient opportunity to vindicate their constitutional rights that is not only a predicate to a Younger dismissal, but also their entitlement under the Constitution.

The three Sims children were taken into custody by the Harris County Child Welfare Unit on March 25, 1976, based on a telephone report that one of the children was possibly the victim of child abuse. After “diligent” but unsuccessful efforts by the parents to be heard in state court, they finally went to federal court where, 42 days after they lost custody of their children, the Simses were heard for the first time in a court of law and their children were returned to them. In due course, the federal court held that the state statutory procedures were defective because they did not provide for adequate notice to the parents, and did not provide for an adequate hearing whenever the State sought to retain custody for more than 10 days. Although other portions of the District Court decision as to the State’s procedures are challenged by the appeal in this Court, the appellants have not questioned these aspects of the District Court’s judgment. It is therefore undisputed that the Texas procedures did not afford the parents a fair opportunity to vindicate their rights.

“[T]he opportunity to raise and have timely decided by a competent state tribunal the federal issues involved,” is, of course, required to support a Younger dismissal. And in the circumstances of this case, it is also — concededly—required by the Due Process Clause. Here, such an opportunity was simply not available in the state-court system; the opportunity to be heard at a later ch. 11 hearing is, as the State accepts, too late to meet the requirements of due process and to afford relief as to the interim deprivation. By ordering abstention nonetheless, the majority is not only extending the Younger doctrine beyond its underlying premise, but is also implicitly sanctioning a deprivation of parental rights without procedural protections which, as the State itself agrees, are constitutionally required.

In my judgment, there could be no serious criticism of a holding that the Younger doctrine could properly be invoked in this case to bar consideration of the limited and easily divisible aspects of the Simses’ challenge which were directed at the procedures to be followed in the ch. 11 adversary hearing. That hearing would afford the parents “a fair and sufficient opportunity” to raise those claims, and there is no reason why the State should not have been able, if it wished, to go forward with an adversary hearing in the April 5 suit. Were the Court’s decision today so limited, it would be supported by its prior cases. But in going further and holding that the federal court should have abstained as to the legality of the State’s prehearing procedures and practices, the Court is applying the Younger doctrine where it simply does not belong. The District Court’s finding that plaintiffs did not have a fair opportunity to pursue these constitutional claims in an ongoing state proceeding is amply supported by the record and the concessions of the State. This finding should foreclose any claim that the Younger doctrine makes abstention appropriate. I respectfully dissent.

       Although it is not clear that the children were nominal parties in all of the proceedings in the state courts, for ease of reference all of those actions will be referred to as actions by the appellees.

       Chapter 17 of Title 2 of the Texas Family Code provides for suits for protection of children in emergencies. Section 17.01 states:
      “An authorized representative of the State Department of Public Welfare, a law-enforcement officer, or a juvenile probation officer may take possession of a child to protect him from an immediate danger to his health or physical safety and deliver him to any court having jurisdiction of suits under this subtitle, whether or not the court has continuing jurisdiction under Section 11.05 of this code. The child shall be delivered immediately to the court.” Tex. Fam. Code Ann., Tit. 2, § 17.01 (Supp. 1978-1979).
      These emergency seizures are to be followed by hearings provided for in § 17.02 (1975):
      “Unless the child is taken into possession pursuant to a temporary order entered by a court under Section 11.11 of this code, the officer or representative shall file a petition in the court immediately on delivery of the child to the court, and a hearing shall be held to provide for the temporary care or protection of the child.”

       Tex. Fam. Code Ann., Tit. 2, § 1704 (1975):
      “On a showing that the child is apparently without support and is dependent on society for protection, or that the child is in immediate danger of physical or emotional injury, the court may make any appropriate order for the care and protection of the child and may appoint a temporary managing conservator for the child.”
      § 17.05 (Supp. 1978-1979):
      “(a) An order issued under Section 17.04 of this code expires at the end of the 10-day period following the date of the order, on the restoration of the child to the possession of its parent, guardian, or conservator, or on the issuance of ex parte temporary orders in a suit affecting the parent-child relationship under this subtitle, whichever occurs first.
      “(b) If the child is not restored to the possession of its parent, guardian, or conservator, the court shall:
      “(1) order such restoration or possession; or
      “(2) direct the filing of a suit affecting the parent-child relationship in the appropriate court with regard to continuing jurisdiction.”

       § 17.06 (1975):
      “On the motion of a parent, managing conservator, or guardian of the person of the child, and notice to those persons involved in the original emergency hearing, the court shall conduct a hearing and may modify any emergency order made under this chapter if found to be in the best interest of the child.”

       Emergency orders are apparently appealable under Texas law. See § 17.07 (1975); In re R. E. W., 545 S. W. 2d 573 (Tex. Civ. App. 1976).

       In issuing this temporary order, the Harris County Juvenile Court relied on Tex. Fam. Code Ann., Tit. 2, § 11.11 (1975 and Supp. 1978-1979), which authorizes a court in a suit affecting the parent-child relationship to make “any temporary order for the safety and welfare of the child.” The parties in this litigation disagree whether the Juvenile Court Judge had jurisdiction to enter that order. This is one of a number of ambiguous state-law questions in this case. Another is the period for which such a temporary order may remain in effect.
      Suits affecting the parent-child relationship are authorized by § 11.02 (1975). These suits are the vehicles by which the State brings about any change in the parent-child relationship.

       There is testimony in the record that a hearing had been set in Montgomery County for May 8, 1976. Defendant’s Exhibit # 1A, Sworn Statement of Rex Downing 65-66.

       Therefore, contrary to the suggestion of the dissent, we do not remotely-suggest “that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies.” Post, at 435-436.

       Section 11.02 (b) of Title 2 provides:
      “(b) One or more matters covered by this subtitle may be determined in the suit. The court, on its own motion, may require the parties to replead in order that any issue affecting the parent-child relationship may be determined in the suit.” Tex. Fam. Code Ann., Tit. 2, § 11.02 (b) (1975).
      As one Texas commentator has noted, § 11.02 (b) vests “a broad range of powers and duties on district courts in cases in which minors appear before the court.” Smith, Draftmen’s Commentary to Title 2 of the Texas Family Code, 5 Tex. Tech. L. Rev. 389, 393 (1974). He notes that this section adopts the liberal approach to joinder of claims and remedies found in Tex. Rule Civ. Proc. 51. Section 11.14, which describes the hearing in suits affecting the parent-child relationship, fortifies that view. It states: “(a) Except as otherwise provided in this subtitle, proceedings shall be as in civil cases generally.”
      Texas Rule Civ. Proc. 51 is modeled on Fed. Rule Civ. Proc. 18 and provides in relevant part that “[t]he plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party.” Thus, Texas procedural law has long encouraged joinder of claims in civil actions. See, e. g., Texas Gauze Mills v. Goatley, 119 S. W. 2d 887, 888 (Tex. Civ. App. 1938); Blair v. Gay, 33 Tex. 157, 165 (1870).
      In a very recent case, In re R. E. W., 545 S. W. 2d 573 (1976), the Texas Court of Civil Appeals has indicated that under Title 2 the full range of constitutional challenges is cognizable in the emergency-removal proceedings and in suits affecting the parent-child relationship. Id., at 575. Therefore, this is not a case like Hernandez v. Finley, 471 F. Supp. 516 (ND Ill. 1978), summarily aff’d sub nom. Quern v. Hernandez, 440 U. S. 951 (1979), where the three-judge court found, after our remand in Trainor v. Hernandez, 431 U. S. 434 (1977), that the applicable state procedures did not permit the defendant to raise a constitutional challenge.

       Thus, we cannot agree with the dissenters’ characterization of the claims raised below as being as unrelated as child abuse and traffic violations. As the District Court properly perceived it, this action is a comprehensive attack on an integrated statutory structure best suited to resolution in one forum. Our disagreement with the District Court is with its choice of forum. Likewise, there is little in our case law or sound judicial administration to commend the suggestion that Younger should have been invoked with respect to some of the claims in this case and others should have been left to the federal forum. Post, at 443. Given the interrelated nature of the claims, such a bifurcation would result in the duplicative litigation and lack of state-court interpretation of an integrated statutory framework that this Court, in Trainor v. Hernandez, supra, at 445, identified as central concerns underlying the Younger doctrine.
      The dissenters’ additional argument that a constitutional attack on state procedures automatically vitiates the adequacy of those procedures for purposes of the Younger-Huffman line of cases is reiteration of a theme sounded and rejected in prior cases. See Trainor v. Hernandez, supra, at 469-470 (Stevens, J., dissenting); Juidice v. Vail, 430 U. S. 327, 339-340 (1977) (Stevens, J., concurring in judgment).

       The District Court focused on psychiatric examinations, although there is no evidence that there was any examination of this nature administered to the Sims children before or after the temporary removal. Sims v. State Dept. of Public Welfare, 438 F. Supp. 1179, 1191.

       The proposition that claims must be cognizable “as a defense” in the ongoing state proceeding, as put forward by our dissenting Brethren, post, at 436-437, converts a doctrine with substantive content into a mere semantical joust. There is no magic in the term “defense” when used in connection with the Younger doctrine if the word “defense” is intended to be used as a term of art. We do not here deal with the long-past niceties which distinguished among “defense,” “counterclaims,” “setoffs,” “recoup-ments,” and the like. As we stated in Juidice v. Vail, 430 U. S., at 337:
      “Here it is abundantly clear that appellees had an opportunity to present their federal claims in the state proceedings. No more is required to invoke Younger abstention. . . . Appellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings . . . and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.” (Footnotes omitted; emphasis in original.)

       In their brief, appellees argue that there was no adequate remedy at state law because their “every effort, to obtain judicial relief in State court was either frustrated or denied.” Brief for Appellees 25. During oral argument, counsel for appellees responded to a request for justification of federal-court involvement in this case by stating that appellees did not believe that there was a state action pending below. Tr. of Oral Arg. 34. Counsel did not argue that the perceived deficiency in the state proceedings was the product of a procedural bar to appellees’ constitutional claims.

       The dissenters’ concern that requiring appellees to raise their challenges to the Texas Family Code in the pending proceeding will complicate and delay resolution of the merits of the State’s claims would clearly be misplaced if the dissent were correct in its characterization of the bulk of appellees’ claims as analogous to “a traffic violation” as far as their relation to the pending state proceeding is concerned. Appellees could simply obtain a resolution of the pending proceeding and then file their separate action. They are certainly not required to pursue “an unwise and impractical course of litigation.” Post, at 440. Nor is there reason to believe that consolidating all of these claims in federal court or litigating simultaneously in two different courts would prove more expeditious, wise, or practical.

         Sims v. State Dept. of Public Welfare, 438 F. Supp. 1179, 1189, quoting Juidice v. Vail, 430 U. S. 327, 338. A comparable finding by the District Court following this Court’s remand in Trainor v. Hernandez, 431 U. S. 434, led to our unanimous summary affirmance of a holding that Younger v. Harris did not justify abstention. See Quern v. Hernandez, 440 U. S. 951.

       See Steffel v. Thompson, 415 U. S. 452, 462-463; Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509. See also Younger v. Harris, 401 U. S., at 46 (“the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution”).

       See Monroe v. Pape, 365 U. S. 167, 183; Steffel v. Thompson, supra. See also Mitchum v. Foster, 407 U. S. 225; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278.

       “The plaintiffs’ having sought through diligent efforts an opportunity to be heard in a state proceeding, this court must conclude that whatever opportunities exist for them are not such as to allow them to ‘fairly pursue’ their constitutional objections.” 438 F. Supp., at 1188-1189.

        Id., at 1187.

        Id., at 1185. These proceedings were suspended, apparently voluntarily, by the State on April 22, when the Department of Human Resources received notice of the federal suit. A second ch. 11 suit was later filed by the Department, with respect to Paul Sims alone, on May 14, after suit in federal court had been filed and the first hearing held. Whether that action could in any circumstances serve as a predicate for a Younger dismissal is a substantial question which the Court does not purport to address. See Hicks v. Miranda, 422 U. S. 332.

       In addition to their challenges to the practices and procedures afforded by the State prior to a final adversary hearing, the Simses also claimed that an attorney ad litem should be appointed for a child in any suit affecting the parent-child relationship and that, where the State sought conserva-torship of a child or termination of the parent-child relationship, it should be required to prove its case by clear and convincing evidence. The second claim relates only to the rules governing the formal eh. 11 hearing; the first to that hearing as well as prior hearings which they claimed were required.

       See 438 F. Supp., at 1187.

       “[T]he plaintiffs’ constitutional challenge is directed primarily at the legality of the children’s seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate.” Ibid.

       “[T]here is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds.” Ibid.

       See also Fuentes v. Shevin, 407 U. S. 67. See generally Developments in the Law — Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1318— 1319 (1977).

       See n. 3, supra.

       The majority does not address separately the question of the federal court’s authority to order the children returned to custody of their parents pending the final state hearing. Since that order did not resolve the merits of any issue to be decided in the state proceeding under ch. 11,1 see no basis for distinguishing that decision from the District Court’s underlying holdings that the statutory scheme pursuant to which the children were seized and detained by the State is unconstitutional. .

       Specifically, the appellants do not challenge the validity of paragraphs 2, 5, 6, 7, and 8 of the judgment entered by the District Court; these paragraphs read as follows:
      “2. That the use of Section 11.11 (a) (4) in conjunction with Chapter 17 of Title 2 of the Texas Family Code to deprive parents of the custody of children for longer than ten (10) days measured from the date of the deprivation, without a full adversary hearing, is an unconstitutional application of said provision.
      “5. That Section 17.03 is unconstitutional on its face insofar as it fails to require the State to make all reasonable efforts to serve notice on the parents of the ex parte hearing to be held immediately after possession of a child is taken by the State.
      “6. That Section 17.05 is unconstitutional on its face insofar as it fails to require the State to hold a full adversary hearing with adequate notice to the parents before possession of a child taken by the State can be retained by the State beyond ten (10) days.
      “7. That Section 17.06 is unconstitutional on its face insofar as it fails to require the State to hold a full adversary hearing at the expiration of the ex parte order, if the State seeks to obtain an order to retain possession of the child beyond ten (10) days.
      “8. That Section 34.05 (c) is unconstitutional on its face insofar as it fails to require notice to the parents and a hearing in which the State makes a showing that a court order allowing psychological or psychiatric examinations is necessary to aid in the investigation of the abuse or neglect before such an order is obtained.” App. A-102 — A-103.

        Gibson v. Berryhill, 411 U. S. 564, 577. In Gibson, the Court concluded that this predicate to a Younger dismissal was not present because of the District Court’s conclusion — -on the merits of the plaintiffs’ challenge — that the State Board was incompetent to adjudicate the issues pending before it. The critical point was that “the administrative body itself was unconstitutionally constituted, and so not entitled to hear the charges filed against the appellees.” 411 U. S., at 577. The case before us is analogous: if the District Court here is correct — and the State accepts that it is, at least in part — that the procedures afforded by the State after its seizure of the children fail to comport with the minimum requirements of due process, then there is no more reason to abstain in favor of an unconstitutionally limited opportunity than in favor of the unconstitutionally composed Board in Gibson. The availability of a later full hearing in state court does not cure the problem in either case. As the Court recognized in Gibson, a subsequent de novo hearing cannot undo the interim harm to constitutional rights. Id., at 577 n. 16. See also Juidice v. Vail, 430 U. S., at 340-341 (SteveNS, J., concurring in judgment).

       In some sense, every Younger dismissal involves an implicit constitutional decision that remitting the federal plaintiff to defend in the state forum is not itself a deprivation of his constitutional rights. In Younger itself, the Court was careful to point out that “[n]o citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts.” 401 U. S., at 46. The same cannot be said about the extended deprivation of custody of one's children without any form of notice or hearing.

       See n. 6, supra.


source: Caselaw Access Project

author: Mr. Justice Stevens

license: Public Domain

text:
    SOUTHERN RAILWAY CO. v. SEABOARD ALLIED MILLING CORP. et al.
    No. 78-575.
    Argued April 23, 1979 —
    Decided June 11, 1979

      SteveNS, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the cases.

      Mark L. Evans argued the cause for petitioner in No. 78-597. With him on the briefs were Christine N. Kohl and James P. Tuite. Wandaleen Poynter argued the cause for petitioners in No. 78-604. With her on the briefs were Donal L. Turkal, Fred R. Birkholtz, and Richard A. Hollander. Michael Boudin and Clare Dalton filed briefs for petitioner in No. 78-575.

      Richard A. Allen argued the cause for the United States as respondent in all cases. With him on the briefs were Solicitor General McCree and Deputy Solicitor General Easterbrook. John H. Caldwell argued the cause for respondents Seaboard Allied Milling Corp. et al. in all cases. With him on the brief were Peter A. Greene, Rufus L. Edmisten, Attorney General of North Carolina, Jacob Safron, Special Deputy Attorney General, Richard L. Griffin, Associate Attorney General, Theodore L. Sendak, Attorney General of Indiana, William G. Mundy, Deputy Attorney General, and Donald P. Bogard. Harold E. Spencer argued the cause for respondents Board of Trade of the City of Chicago et al. in all cases. With him on the brief were Thomas F. McFarland, Jr., and Richard S. M. Emrich III.

      Together with No. 78-597, Interstate Commerce Commission v. Sear-board Allied Milling Corp. et al.; and No. 78-604, Seaboard Coast Line Railroad Co. et al. v. Seaboard Allied Milling Corp. et al., also on certiorari to the same court.

       J. Raymond Clark, John L. Taylor, Jr., and John R. Molm filed a brief for Potomac Electric Power Co. et al. as amici curiae urging affirmance.

   Mr. Justice Stevens

delivered the opinion of the Court.

On September 14, 1977, the Interstate Commerce Commission decided not to exercise its authority under § 15 (8) (a) of the Interstate Commerce Act (Act) to order a hearing to investigate the lawfulness of a seasonal rate increase proposed by a group of railroads. The question presented is whether the Commission’s refusal to conduct such an investigation is subject to judicial review.

Because the Courts of Appeals for the Eighth Circuit, Seaboard Allied Milling Corp. v. ICC, 570 F. 2d 1349, and the District of Columbia Circuit have answered this question differently, we granted certiorari. 439 U. S. 1066. We now hold that the Commission’s “no investigation” decision is not reviewable.

Petitioner railroads’ rate schedule was the first one proposed under § 202 (d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the 4-R Act). 90 Stat. 36, amending 49 U. S. C. § 15 (1970 ed.). See App. to Pet. for Cert, in No. 78-597, p. 28a. That provision directs the Commission to adopt “expeditious procedures for the establishment of railroad rates based on seasonal, regional, or peak-period demand for rail services.”

In August 1977, after the Commission had promulgated its new standards and procedures for seasonal rate adjustments, see Ex parte No. 324, 355 I. C. C. 522, the Southern Freight Association proposed a 20% increase in the rates for grain and soybeans shipped from the Midwest in railroad-owned cars between September 15 and December 15, 1977. The railroads supported their proposal with statistics describing the high volume of grain shipments in the fall, an explanation of the anticipated effect of the temporary rates on railcar usage, and some cost evidence.

A number of shippers and large users of transported grain (hereinafter shippers) filed protests claiming the proposed rates were unlawful. They requested that the Commission exercise its authority under § 15 (8) (a) to suspend these rates and to investigate the charges of illegality. On September 14, 1977, a month after the rates were filed, and eight days after receiving the protests, the Commission issued its order declining either to suspend or to investigate the legality of the rates. App. 286-291.

In that order the Commission admonished the railroads “to take prompt action to remove violations of the long-and-short-haul provision of section 4 (1) of the Act, if any, in connection with inter-territorial and intra-territorial movements that may be caused by application of demand-sensitive rates on whole grains between points in southern territory.” Id., at 288. Moreover, the Commission directed the carriers to file detailed weekly reports relating to the effects of the new schedules, id., at 289-290 (and, in a later order, to keep accounts of all charges and receipts under the rates, id., at 302), and “out of caution” it instructed its Bureau of Investigations and Enforcement and Bureau of Operations “to closely monitor this matter.” Id., at 290. With respect to the basic question whether to suspend the rates and conduct a formal investigation, the Commission concluded:

“Weighing the contentions before us and the clear Congressional purpose to permit experimental ratemaking, we will permit this temporary adjustment to become effective.” Id., at 289.

It noted, however, that § 13 (1) of the Act, which allows shippers to initiate mandatory posteffective proceedings to inquire into and remedy violations of the Act, would still be available to “protect” persons aggrieved by the rates. App. 289.

Immediately after the Commission entered its order, two judges of the Court of Appeals granted an ex parte application for a temporary stay and enjoined the Commission from permitting the tariff to go into effect. Id., at 295. Eight days later, however, the court dissolved its stay and the new rates went into effect. Id., at 298-300. Two months after the seasonal tariff had expired, the Court of Appeals filed its opinion concluding that the Commission had begun an investigation but had then erroneously terminated it without “adequately in-vestigat[ing] the charges” of “patent illegality” and without supporting its decision “with appropriate findings and conclusions.” 570 F. 2d, at 1352, 1355, 1356. It directed the Commission to hold hearings to investigate more fully the protestants’ charges of patent illegality and, if the investigation revealed that the tariff was unlawful, to make appropriate provisions for refund of increased charges collected under the tariff. Id., at 1356.

Although some of the just-quoted passages suggest that the Court of Appeals viewed the Commission’s order as an inadequately investigated decision on the merits, other passages indicate that it reviewed and disapproved of the order, realizing that it was a decision not to reach the merits and not to investigate the lawfulness of the rates. Because the period covered by the seasonal tariff had already expired, the court first stated that it would not decide whether the Commission’s refusal to suspend the effectiveness of the rates pending investigation was reviewable. Id., at 1352. Assuming, however, that United States v. SCRAP, 412 U. S. 669, 698, and Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 667-668, had established that a suspension decision is not reviewable, the court reasoned that the Commission’s suspension and investigation powers are separate and distinct and that the factors that had prompted this Court in Arrow “to hold suspension orders not reviewable are not applicable to decisions of the Commission to refuse to make or to terminate an investigation of the lawfulness of a proposed tariff.” 570 F. 2d, at 1353. It then concluded that the latter type of decision is subject to judicial review even though the former is not, primarily because, in its view, a single § 15 (8) (a) proceeding initiated by the Commission is a better means of determining the lawfulness of the rates than numerous § 13 (1) complaint proceedings initiated by shippers contending that they have been overcharged. 570 F. 2d, at 1355.

We reverse. First, to the extent that the Court of Appeals interpreted the Commission’s order as a final decision that the tariff was lawful, rather than simply a discretionary decision not now to investigate its lawfulness, it has misconstrued the order. Second, to the extent that its decision transcends this misinterpretation of the Commission’s order and suggests that even a “no investigation” determination would be reviewable, it has misconstrued Congress’ intent with respect to §15 (8)(a).

I

It is, of course, true that a decision by the Commission following a § 15 (8) investigation to approve or disapprove a set of rates is a judicially reviewable final decision. E. g., United States v. Louisiana, 290 U. S. 70. See Chicago v. United States, 396 U. S. 162. The shippers contend that this rule governs here. In their view, the Commission, by reviewing and then leaving intact rates it knew to be unlawful, effectively approved those rates. But the express language of the Commission’s order belies any interpretation of its decision as a ruling on the legality of petitioner railroads’ seasonal tariff.

The claim of illegality most forcefully urged by the shippers, both here and in the- Court of Appeals, is that the schedules contain a number of violations of the long-and-short-haul restrictions in §4(1) of the Act. The Commission did not reject this claim on its merits; on the contrary, it admonished the carriers to correct any such violations that might exist and directed that records be kept to protect the shippers’ right to recover their damages in such subsequent proceedings as they might bring pursuant to § 13 (1) of the Act. App. 288-290. Since the Commission expressly indicated that charges of violation of §4(1) could be resolved in § 13 (1) proceedings, App. 289, it is plainly incorrect to interpret its action as a prejudgment of the issue.

The Commission did note in addition that “the evidence offered to support the alleged [§4 (1)] violations [did] not warrant suspension” or investigation. Id., at 288. But, in light of the nature of the inquiry that the Commission makes when a request for suspension and investigation of an area-wide group of rates is filed, this, too, is clearly not a decision that there were no violations. Since 1910, when § 15 (8) (a)’s precursor was added to the Act, the Commission has typically made its suspension and investigation decisions simultaneously; indeed, the Act appears to contemplate that result. See infra, at 458-459. In addition, the Act leaves the Commission only 30 days to decide on suspension before the rates automatically become effective. 49 U. S. C. § 6 (3). The Commission’s primary duty, therefore, is to make a prompt appraisal of the probable and general reasonableness and legality of the proposed schedule — which may, as in this case, involve thousands of rates for designated commodities and routes — rather than a detailed review of the lawfulness of each individual component of the tariff schedules. In short, the Commission simply has no time to, and did not in these cases, finally decide on the lawfulness of the rate schedule or its individual components during the preliminary 30-day period.

II

Nor can § 15 (8) be read to tolerate judicial review of the Commission’s decision not to investigate the lawfulness of a proposed rate schedule. Although we will not lightly interpret a statute to confer unreviewable power on an administrative agency, Morris v. Gressette, 432 U. S. 491, 501; Dunlop v. Bachowski, 421 U. S. 560, 567, we have no choice in this case. For the ultimate analysis is always one of Congress’ intent, and in these cases, “there is persuasive reason to believe that [nonreviewability] was the purpose of Congress.” Abbott Laboratories v. Gardner, 387 U. S. 136, 140.

Initially, it is important to note the extremely limited scope of the administrative decision that we conclude is not judicially reviewable. We are not here concerned with the Commission’s rate-suspension authority because, as we shall see, our prior cases have already placed the exercise of that authority beyond the control of the courts. Nor, in fact, are we holding entirely unreviewable the Commission’s exercise of its rate-investigation authority. For any shipper may require the Commission to investigate the lawfulness of any rate at any time — and may secure judicial review of any decision not to do so — by filing a § 13 (1) complaint. E. g., ICC v. Baird, 194 U. S. 25, 39.

Instead, our sole concern is the Commission’s decision not to investigate under § 15 (8)(a), a decision that has only two final consequences. First, the burden of proof with regard to reasonableness is placed on the shipper under § 13 (1) rather than on the carrier, who would have borne it in a § 15 (8) (a) proceeding. (With respect to all other aspects of lawfulness, however, the burden is borne by the shipper in both proceedings.) Second, the shipper’s relief, if unlawfulness is proved, is limited under § 13 (1) to actual damages rather than the full refund of overcharges available under § 15 (8)(a). It is only with regard to these two determinations, neither of which necessarily affects any citizen’s ultimate rights, that we conclude — based on the language, structure, and history of the Act as well as the relevant case law— that the agency’s exercise of discretion is unreviewable.

A

With respect to the Commission’s investigation power, § 15 (8) (a) is written in the language of permission and discretion. Under it, “the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of [a] rate [which] hearing may be conducted without answer or other formal pleading . . . (Emphasis added.)

The statute is silent on what factors should guide the Commission’s decision; not only is “[t]he extent of this inquiry . . . not . . . marked . . . with certainty,” cf. United States v. Louisiana, 290 U. S., at 77, but also on the face of the statute there is simply “no law to apply” in determining if the decision is correct. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410. Similar circumstances have been emphasized in cases in which we have inferred nonreviewability. See Barlow v. Collins, 397 U. S. 159, 166; Schilling v. Rogers, 363 U. S. 666, 674.

B

The structure of the Act also indicates that Congress intended to prohibit judicial review. Congress did not use permissive language such as that found in § 15 (8) (a) when it wished to create reviewable duties under the Act. Instead, it used mandatory language, and it typically included standards to guide both the Commission in exercising its authority and the courts in reviewing that exercise. In particular, § 13 (1), which plainly authorizes rate-investigation decisions that are reviewable, ICC v. Baird, supra, at 39, provides that “[i]f . . . there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of . .. .” (Emphasis added.) The Court of Appeals’ interpretation therefore treats § 15 (8) (a) as if it were written in the mandatory language of § 13 (1).

Of even greater significance, that interpretation would allow shippers to use the open-ended and ill-defined procedures in § 15 (8) (a) to render obsolete the carefully designed and detailed procedures in § 13 (1). For under the court’s reading, at least when one of the perhaps thousands of rates in a proposed schedule is “patently illegal,” any party could (and, given the burden-of-proof and remedial advantages, many surely would) force the Commission immediately to undertake an investigation under § 15 (8) (a) and to reach a judicially reviewable decision on the legality of the rates. Nothing would be left for consideration under § 13 (1). We, of course, are reluctant almost a century after the Act was passed to adopt an interpretation of it that would effectively nullify one of its original and most frequently used provisions.

The disruptive practical consequences of such a determination confirm our view that Congress intended no such result. The Commission reviews over 50,000 rate-schedule filings each year; many, including the one involved here, contain thousands of individual rates. See 91 ICC Ann. Rep. 113 (1977). If the Commission, which generally makes its § 15 (8) (a) investigation decisions within 30 days in order to allow pre-effective suspension, must carefully analyze and explain its actions with regard to each component of each proposed schedule, and if it must increase the number of investigations it conducts, all in order to avoid judicial review and reversal, its workload would increase tremendously.

These practical effects of reviewability would be especially disruptive in the present context of seasonal rates proposed under § 202 (d) of the 4-R Act. The policies underlying that provision favor greater freedom of action by the railroads, greater rate flexibility, especially with respect to short-term rates, and more limited supervision by the Commission — all of which would be disserved if the courts may examine the Commission’s initial investigation decisions with respect to temporary rate adjustments. Furthermore, an increase in the number of rate investigations in which the railroad, rather than the challenging party, bears the burden of proof and in which the challenger need not prove actual damages before recovering refunds would be out of place in a regulatory system that leaves “the initiative in setting rates . . , with the railroad.” Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 311.

There is an additional structural reason why the Commission’s investigation decisions are unreviewable. Section 15 (8) was originally included in the Mann-Elkins Act of 1910, 36 Stat. 552. As adopted, and as it has remained during the ensuing 70 years, the provision has given the Commission the power not only to investigate but also to suspend proposed rates. 49 U. S. C. § 15 (8)(b). Congress phrased the two powers in precisely the same language and placed the same time limits on the exercise of both. See Asphalt Roofing Mfg. Assn. v. ICC, 186 U. S. App. D. C. 1, 8-9, 567 F. 2d 994, 1001-1002 (1977); n. 2, supra. The two powers are inextricably linked because the Commission has no occasion to suspend a rate unless it also intends to investigate it. See United States v. Chesapeake & Ohio R. Co., 426 U. S. 500, 512-513 (Chessie).

In view of this linkage, we need look no further than our previous decisions concluding that the merits of a suspension decision are not reviewable to find a sufficient answer to the question presented in these cases. Aberdeen & Rockfish R. Co. v. SCRAP, supra, at 311; United States v. SCRAP, 412 U. S., at 691-692, 698; Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658. Indeed, if any distinction is to be drawn, it would make more sense to subject suspension rather than investigation decisions to review, for the pre-effective suspension of a new rate has a greater and more immediate impact on carriers and shippers than does the initiation of an investigation whose outcome is inevitably in doubt. See Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 641; Chessie, supra, at 513.

C

The legislative history of the Mann-Elkins amendments to the Act also supports nonreviewability. Prior to the enactment of those amendments, the Commission had no authority to suspend rates, or to adjudicate their lawfulness in advance either of their becoming effective or of their being challenged by a private party in a § 13 (1) complaint. In the years immediately preceding the enactment of the amendments, rapidly rising rates encouraged shippers, with some success, to ask the courts to enjoin unlawful rates before they went into effect. As a result of the ensuing judicial intervention in the ratemaking process, the Commission was divested of much of its primary jurisdiction with respect to rates, and the public was subjected to nonuniform rates that depended on whether or not the local district court had issued an injunction. See 21 ICC Ann. Rep. 9-10 (1907); 22 ICC Ann. Rep. 10-12 (1908); 23 ICC Ann. Rep. 6-7 (1909).

As discussed at greater length in Arrow, supra, at 662-672, the adoption of § 15 (8) was designed to avoid these disruptive consequences of judicial interference. If we should now allow the courts to review § 15 (8) investigation decisions, we would be giving “backhanded approval” to these very same consequences. 372 U. S., at 664. Judicial review would once again undermine the Commission’s primary jurisdiction by bringing the courts into the adjudication of the lawfulness of rates in advance of administrative consideration. As we said in Arrow with respect to judicially mandated rate suspension:

“A court’s disposition of an application for [an order directing the Commission to investigate rates] would seem to require at least some consideration of the applicant’s claim that the carrier’s proposed rates are unreasonable [or otherwise unlawful]. But such consideration would create the hazard of forbidden judicial intrusion into the administrative domain.” Id., at 669-670.

Moreover, this allowance for independent judicial appraisal of the reasonableness of rates by every court of appeals in the country might replicate the judicially created “hazard[s] to uniformity” that, along with the courts’ assault on the Commission’s primary jurisdiction, prompted Congress to pass § 15 (8) in the first place. See 372 U. S., at 671.

D

Given the strength of the statutory and legislative evidence supporting nonreviewability, it is not surprising that prior to 1977 no court had ever even adverted to the possibility of reviewing a “no investigation” decision under §15 (8)(a). Nonetheless, this Court has indicated on at least two occasions that the decision whether the Commission should commence an investigation under an analogous provision in the Act, § 13a (1), is committed to the agency’s discretion and therefore not revie wable.

In Chicago v. United States, 396 U. S. 162, the Court held that orders discontinuing § 13a (1) investigations into the propriety of certain changes in passenger service were reviewable rulings on the merits. In so holding, however, the Court expressly distinguished a Commission decision on the question whether an investigation should be undertaken in the first place, saying:

“Whether the Commission should make an investigation of a § 13a (1) discontinuance [of passenger service] is of course within its discretion, a matter which is not reviewable. New Jersey v. United States, 168 F. Supp. 324, aff’d, 359 U. S. 27.” 396 U. S., at 165.

In the New Jersey case cited in Chicago, a three-judge District Court had squarely held that the Commission’s refusal to commence a § 13a (1) investigation into a railroad’s abandonment of service was not reviewable. See 168 F. Supp. 324, 328 (NJ 1958). Our summary affirmance of that holding in 359 U. S. 27, while having less precedential value than an opinion in an argued case, was nonetheless a ruling on the merits, Hicks v. Miranda, 422 U. S. 332, and it, along with the Chicago dictum, strongly supports the nonreviewability of § 15 (8) (a) investigation determinations.

In short, the necessary “ ‘clear and convincing evidence’ that Congress meant to prohibit all judicial review” of the Commission’s limited decision not to initiate an investigation under § 15 (8) (a) is provided by the language of the statute, as well as its place within the statutory design of the Act, its legislative history, and the light shed on it by our case law concerning analogous statutes. Dunlop v. Bachowski, 421 U. S., at 568. See Abbott Laboratories v. Gardner, 387 U. S., at 141.

Ill

We also find no statutory support for the Solicitor General’s belated compromise position that, while not immediately reviewable (i. e., not “final” at the stage of the administrative proceedings involved in these cases), the Commission’s decisions under § 15 (8) (a) do become reviewable later, upon the completion of whatever proceedings may be initiated under § 13 (l). Under this novel reading of the Act, if a shipper is denied § 13 (1) relief, he not only may appeal that decision to a court of appeals but also may appeal the Commission’s earlier decision not to suspend or investigate a rate under §15 (8)(a).

Although it is true that the § 13 (1) remedy lessens the risk of harm from the Commission’s initial refusal to investigate or to suspend under § 15 (8) (a), Aberdeen & Rockfish R. Co., 422 U. S., at 311, it is nonetheless clear that that remedy is independent of § 15 (8)(a) proceedings. First, the language of § 15 (8) (a) suggests no linkage to § 13 (1) nor any basis for judicial review at any point in the administrative process. Second, § 13 (1) has been an independent and self-contained procedure since the Act was first passed in 1887. When § 15 (8) (a) was added some 23 years later, there was no indication that it was intended as an amendment to § 13 (1), rather than as a limited pre-effective and Commission-initiated alternative to the posteffective and shipper-initiated procedures in § 13 (1). Third, if shippers are encouraged in every case to request investigations under § 15 (8) (a) in order to preserve for later review under § 13 (1) a claim that one was not conducted, and if the Commission’s decisions are ultimately subjected to review, many of the practical problems that we discussed above with respect to the Court of Appeals’ approach would still arise.

In sum, the force of the arguments against reviewability of § 15 (8) (a) investigation decisions is not diminished by altering the point in the administrative process at which the courts are allowed to intrude.

The judgment of the Court of Appeals is

Reversed.

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

       At all relevant times, § 15 (8) provided in pertinent part:
      “(a) Whenever a schedule is filed with the Commission by a common carrier by railroad stating a new individual or joint rate, fare, or charge, or a new individual or joint classification, regulation, or practice affecting a rate, fare, or charge, the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of such rate, fare, charge, classification, regulation, or practice. The hearing may be conducted without answer or other formal pleading, but reasonable notice shall be provided to interested parties. Such hearing shall be completed and a final decision rendered by the Commission not later than 7 months after such rate, fare, charge, classification, regulation, or practice was scheduled to become effective, unless, prior to the expiration of such 7-month period, the Commission reports in writing to the Congress that it is unable to render a decision within such period, together with a full explanation of the reason for the delay. If such a report is made to the Congress, the final decision shall be made not later than 10 months after the date of the filing of such schedule. If the final decision of the Commission is not made within the applicable time period, the rate, fare, charge, classification, regulation, or practice shall go into effect immediately at the expiration of such time period, or shall remain in effect if it has already become effective. Such rate, fare, charge, classification, regulation, or practice may be set aside thereafter by the Commission if, upon complaint of an interested party, the Commission finds it to be unlawful.
      “(b) Pending a hearing pursuant to subdivision (a), the schedule may be suspended, pursuant to subdivision (d), for 7 months beyond the time when it would otherwise go into effect, or for 10 months if the Commission makes a report to the Congress pursuant to subdivision (a), except under the following conditions . . . .” 90 Stat. 2630, 49 U. S. C. § 15 (8).
      On October 17, 1978, President Carter signed into law Subtitle IV of Title 49, United States Code, “Transportation,” 49 U. S. C. § 10101 et seq. (1976 ed., Supp. II), which recodifies and revises some of the archaic language of the Interstate Commerce Act. See Note preceding 49 U. S. C. §10101 (1976 ed., Supp. II). Section 10707 of the recodified Title 49 corresponds to § 15 (8) of the old statute. In this opinion we shall refer to the relevant statutes by their former designations.

       In Asphalt Roofing Mfg. Assn. v. ICC, 186 U. S. App. D. C. 1, 8-9, 567 F. 2d 994, 1001-1002 (1977), the Court of Appeals for the District of Columbia Circuit held:
      "The orders challenged in each of these proceedings permitted rates filed by the railroads to go into effect without either investigation or suspension. It is firmly settled that ICC orders suspending rate increases for the statutory period are within the agency’s sole discretion and are judicially unreviewable. . . . The United States and the petitioners urge that a distinction should be drawn between Commission orders refusing to suspend rate increases and those declining to institute an investigation; the latter, they argue, should be held reviewable. The basic difficulty with this argument is that section [15 (8) (a)], which empowers the Commission both to suspend and to investigate proposed rate increases, grants both powers in substantially the same language. There is therefore no ground, on the basis of the Act, for treating the two powers differently for purposes of reviewability. We hold that the reviewability of the Commission’s decision to permit the rate increases in these proceedings to go into effect without suspension or investigation is controlled by the cases holding the Commission’s decision whether to suspend a rate increase to be unreviewable.”

       Section 202 (d), codified originally at 49 U. S. C. § 15 (17) and as set forth therein, provides as follows:
      “Within 1 year after February 5, 1976, the Commission shall establish, by rule, standards and expeditious procedures for the establishment of railroad rates based on seasonal, regional, or peak-period demand for rail services. Such standards and procedures shall be designed to (a) provide sufficient incentive to shippers to reduce peak-period shipments, through rescheduling and advance planning; (b) generate additional revenues for the railroads; and (c) improve (i) the utilization of the national supply of freight cars, (ii) the movement of goods by rail, (iii) levels of employment by railroads, and (iv) the financial stability of markets served by railroads. Following the establishment of such standards and procedures, the Commission shall prepare and submit to the Congress annual reports on the implementation of such rates, including recommendations with respect to the need, if any, for additional legislation to facilitate the establishment of such demand-sensitive rates.”
      The provision is currently codified in 49 U. S. C; § 10727 (1976 ed., Supp. II). See n. 1, supra.

       The shippers objected to the rates as unreasonably high in violation of 49 U. S. C. § 1 (5); as discriminatory contrary to §§2, 3 (1), because they applied only to railroad-owned cars; as not conforming to the goals of the seasonal-rate authorization; and as violating the long-and-short-haul clause of § 4 (1).

       Section 13 (1) provides:
      “Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of tbe Commission to investigate the matters complained of in such manner and by such means as it sfiifil deem proper.” 49 U. S. C. § 13 (1).
      This provision is currently codified in 49 U. S. C. § 11701 (b) (1976 ed., Supp. II). See n. 1, supra.

       The analysis in text applies with equal force to the Commission’s treatment of the alleged § 2 and § 3 (1) violations. See App. 288-289.

        Cf. United States v. Louisiana, 290 U. S. 70, 75-77; Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 312-313; United States v. SCRAP, 412 U. S. 669, 692 n. 16 (even after actually investigating an areawide rate schedule and finding that it contains individually unlawful components, the Commission may properly approve it if the rates are “generally” lawful).

       If a shipper proves that a rate is unreasonable and that he was damaged in the full amount he was overcharged, the outcome of a § 13 (1) proceeding will be no different than that of a § 15 (8) (a) proceeding in which the carrier fails to establish the reasonableness of the rate.

       Our eases foreclose requiring the Commission to disapprove, much less to investigate, every rate schedule that can be shown to include some individually unlawful rates. E. g., United States v. Louisiana, swpra, at 75-77. The standard proposed by the Court of Appeals, which would require an investigation if individual rates are “patently illegal,” is equally foreclosed by those cases. Moreover, like the standard proposed by the Solicitor General, Brief for United States 34 (review for “abuse of discretion or [action] contrary to [Commission’s] statutory mandate”), it is entirely without support in the statute.

       In its declaration of policy with respect to the Title of the 4r-R Act that included the precursor of §202 (d), the Senate Report on that Act stated:
      “[T]he purposes of [the Title] include fostering competition among all carriers in order to promote more adequate and efficient transportation and the attractiveness of rail investment, permitting greater railroad price flexibility, promotion of a rate structure more sensitive to variations in demand and separate rates for distinct services, formulation of standards and guidelines for determining adequate revenue levels, and modernizing and clarifying the functions of rate bureaus.” S. Rep. No. 94-499, p. 45 (1975).
      See also id., at 15 (primary purpose of the 4r-R Act amendments was to end “excessive regulatory delay”); n. 3, supra.

       See also Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 638-639, n. 17. In those cases, the Court reaffirmed the conclusion in Arrow and the SCRAP cases “that courts may not independently appraise the reasonableness of rates” — i. e., the merits — in reviewing suspension decisions. It did, however, “conclude that Congress did not mean to cut off Judicial review for [the] limited purpos[e]” of deciding whether the Commission had jurisdiction to suspend the rates in question, i. e., whether they were “new rates” within the meaning of § 1'5 (8) (a). See also Schilling v. Rogers, 363 U. S. 666, 676-677 (“different considerations” apply to the reviewability of an agency “refus[al] or fail[ure] to exercise a statutory discretion” than to the reviewability of its decision once it does exercise that discretion). Here, it is conceded by all that the Commission has authority with respect to rates such as those at issue either to suspend (or investigate) or not to suspend (or investigate) them and that it has exercised its authority. The question raised is whether it did so correctly under the particular circumstances involved — a question that cannot be answered by a reviewing court without “independently apprais[ing] the [lawfulness] of [the] rat[e].”

       Similarly, the situation in Arrow, in which the courts first held a “no suspension” decision unreviewable, was far more conducive to a finding of reviewability than the situation presented by these cases. For in Arrow, the parties seeking judicial intervention were competitors of the railroads alleging predatory pricing, rather than shippers alleging excessive pricing. As such, it was uncertain — and the Court expressly refused to decide— whether those complainants had access to the posteffective judicial remedies that are available to shippers such as respondents here. See 372 U. S., at 669. In short, it was possible in Arrow, but not here, that non-reviewability would leave the aggrieved party without any judicial remedy at all.

       See generally 1 I. Sharfman, The Interstate Commerce Commission 49-55 (1931); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U. Pa. L. Rev. 39, 45-49 (1971).

       Although most of the debate surrounding the relevant portions of the Mann-Elldns Act was concerned with the suspension power, it is absolutely clear both that Congress intended to commit that power to the unfettered discretion of the Commission and that it perceived it and the investigation power as closely linked. E. g., S. Rep. No. 355, 61st Cong., 2d Sess., pt. 1, p. 9 (1910); 45 Cong. Rec. 3472 (1910) (Sen. Elkins); id., at 462 (transmittal message of Pres. Taft).

       Title 49 U. S. C. § 13a (1) provides in relevant part:

        “A carrier . . . may, but shall not be required to, file with the Commission . . . notice at least thirty days in advance of any . . . proposed discontinuance or change [in service]. The carrier or carriers filing such notice may discontinue or change any such operation or service pursuant to such notice except as otherwise ordered by the Commission pursuant to this paragraph .... Upon the filing of such notice the Commission shall have authority during said thirty days’ notice period, either upon complaint or upon its own initiative without complaint, to enter upon an investigation of the proposed discontinuance or change. Upon the institution of such investigation, the Commission, by order served upon the carrier or carriers affected thereby at least ten days prior to the day on which such discontinuance or change would otherwise become effective, may require such train or ferry to be continued in operation or service, in whole or in part, pending hearing and decision in such investigation, but not for a longer period than four months beyond the date when such discontinuance or change would otherwise have become effective. If, after hearing in such investigation whether concluded before or after such discontinuance or change has become effective, the Commission finds that the operation or service of such train or ferry is required by public convenience and necessity and will not unduly burden interstate or foreign commerce, the Commission may by order require the continuance or restoration of operation or service of such train or ferry, in whole or in part, for a period not to exceed one year from the date of such order.” (Emphasis added.)
      This provision, it should be noted, closely parallels § 15 (8) (a). Both use permissive language and both grant the Commission mutually supportive investigation and suspension powers.

       The United States did not take this position in the Court of Appeals, nor, so far as we are advised, has this position previously been advanced to any federal court.