author:
Chief Justice Rehnquist
      Justice Marshall, Justice Stevens,

text:
    WHEAT v. UNITED STATES
    No. 87-4.
    Argued March 2, 1988
    Decided May 23, 1988

      Rehnquist, C. J., delivered the opinion of the Court, in which White, O’ConnoR, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 165. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 172.

      John J. Cleary argued the cause and filed briefs for petitioner.

      Michael K. Kellogg argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, and Louis M. Fischer.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The issue in this case is whether the District Court erred in declining petitioner’s waiver of his right to conflict-free counsel and by refusing to permit petitioner’s proposed substitution of attorneys.

I

Petitioner Mark Wheat, along with numerous codefend-ants, was charged with participating in a far-flung drug distribution conspiracy. Over a period of several years, many thousands of pounds of marijuana were transported from Mexico and other locations to southern California. Petitioner acted primarily as an intermediary in the distribution ring; he received and stored large shipments of marijuana at his home, then distributed the marijuana to customers in the region.

Also charged in the conspiracy were Juvenal Gomez-Barajas and Javier Bravo, who were represented in their criminal proceedings by attorney Eugene Iredale. Gomez-Barajas was tried first and was acquitted on drug charges overlapping with those against petitioner. To avoid a second trial on other charges, however, Gomez-Barajas offered to plead guilty to tax evasion and illegal importation of merchandise. At the commencement of petitioner’s trial, the District Court had not accepted the plea; Gomez-Barajas was thus free to withdraw his guilty plea and proceed to trial.

Bravo, evidently a lesser player in the conspiracy, decided to forgo trial and plead guilty to one count of transporting approximately 2,400 pounds of marijuana from Los Angeles to a residence controlled by Victor Vidal. At the conclusion of Bravo’s guilty plea proceedings on August 22, 1985, Ire-dale notified the District Court that he had been contacted by petitioner and had been asked to try petitioner’s case as well. In response, the Government registered substantial concern about the possibility of conflict in the representation. After entertaining some initial discussion of the substitution of counsel, the District Court instructed the parties to present more detailed arguments the following Monday, just one day. before the scheduled start of petitioner’s trial.

At the Monday hearing, the Government objected to petitioner’s proposed substitution on the ground that Iredale’s representation of Gomez-Barajas and Bravo created a serious conflict of interest. The Government’s position was premised on two possible conflicts. First, the District Court had not yet accepted the plea and sentencing arrangement negotiated between Gomez-Barajas and the Government; in the event that arrangement were rejected by the court, Gomez-Barajas would be free to withdraw the plea and stand trial. He would then be faced with the prospect of representation by Iredale, who in the meantime would have acted as petitioner’s attorney. Petitioner, through his participation in the drug distribution scheme, was familiar with the sources and size of Gomez-Barajas’ income, and was thus likely to be called as a witness for the Government at any subsequent trial of Gomez-Barajas. This scenario would pose a conflict of interest for Iredale, who would be prevented from cross-examining petitioner and thereby from effectively representing Gomez-Barajas.

Second, and of more immediate concern, Iredale’s representation of Bravo would directly affect his ability to 'act as counsel for petitioner. The Government believed that a portion of the marijuana delivered by Bravo to Vidal’s residence eventually was transferred to petitioner. In this regard, the Government contacted Iredale and asked that Bravo be made available as a witness to testify against petitioner, and agreed in exchange to modify its position at the time of Bravo’s sentencing. In the likely event that Bravo were called to testify, Iredale’s position in representing both men would become untenable, for ethical proscriptions would forbid him to cross-examine Bravo in any meaningful way. By failing to do so, he would also fail to provide petitioner with effective assistance of counsel. Thus, because of Ire-dale’s prior representation of Gomez-Barajas and Bravo and the potential for serious conflict of interest, the Government urged the District Court to reject the substitution of attorneys.

In response, petitioner emphasized his right to have counsel of his own choosing and the willingness of Gomez-Barajas, Bravo, and petitioner to waive the right to conflict-free counsel. Petitioner argued that the circumstances posited by the Government that would create a conflict for Iredale were highly speculative and bore no connection to the true relationship between the co-conspirators. If called to testify, Bravo would simply say that he did not know petitioner and had no dealings with him; no attempt by Iredale to impeach Bravo would be necessary. Further, in the unlikely event that Gomez-Barajas went to trial on the charges of tax evasion and illegal importation, petitioner’s lack of involvement in those alleged crimes made his appearance as a witness highly improbable. Finally, and most importantly, all three defendants agreed to allow Iredale to represent petitioner and to waive any future claims of conflict of interest. In petitioner’s view, the Government was manufacturing implausible conflicts in an attempt to disqualify Iredale, who had already proved extremely effective in representing Gomez-Barajas and Bravo.

After hearing argument from each side, the District Court noted that it was unfortunate that petitioner had not suggested the substitution sooner, rather than two court days before the commencement of trial. The court then ruled:

“[Bjased upon the representation of the Government in [its] memorandum that the Court really has no choice at this point other than to find that an irreconcilable conflict of interest exists. I don’t think it can be waived, and accordingly, Mr. Wheat’s request to substitute Mr. Ire-dale in as attorney of record is denied.” App. 100-101.

Petitioner proceeded to trial with his original counsel and was convicted of conspiracy to possess more than 1,000 pounds of marijuana with intent to distribute, in violation of 21 U. S. C. §846, and five counts of possessing marijuana with intent to distribute, in violation of § 841(a)(1).

The Court of Appeals for the Ninth Circuit affirmed petitioner’s convictions, 813 F. 2d 1399 (1987), finding that, within the limits prescribed by the Sixth Amendment, the District Court has considerable discretion in allowing substitution of counsel. The Court of Appeals found that the District Court had correctly balanced two Sixth Amendment rights: (1) the qualified right to be represented by counsel of one’s choice, and (2) the right to a defense conducted by an attorney who is free of conflicts of interest. Denial of either of these rights threatened the District Court with an appeal assigning the ruling as reversible error, and the Court of Appeals concluded that the District Court did not abuse its discretion in declining to allow the substitution or addition of Iredale as trial counsel for petitioner.

Because the Courts of Appeals have expressed substantial disagreement about when a district court may override a defendant’s waiver of his attorney’s conflict of interest, we granted certiorari, 484 U. S. 814 (1987).

HH HH

The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence;” In United States v. Morrison, 449 U. S. 361, 364 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U. S. 45, 69 (1932); United States v. Ash, 413 U. S. 300, 307 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U. S. 335 (1963). We have further recognized that the purpose of providing assistance of counsel “is simply to ensure that criminal defendants receive a fair trial,” Strickland v. Washington, 466 U. S. 668, 689 (1984), and that in evaluating Sixth Amendment claims, “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.” United States v. Cronic, 466 U. S. 648, 657, n. 21 (1984). Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. See Morris v. Slappy, 461 U. S. 1, 13-14 (1983); Jones v. Barnes, 463 U. S. 745 (1983).

The Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court. Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant. Nor may a defendant insist on the counsel of an attorney who has a previous or ongoing relationship with an opposing party, even when the opposing party is the Government. The question raised in this case is the extent to which a criminal defendant’s right under the Sixth Amendment to his chosen attorney is qúalified by the fact that the attorney has represented other defendants charged in the same criminal conspiracy.

In previous cases, we have recognized that multiple representation of criminal defendants engenders special dangers of which a court must be aware. While “permitting a single at-tomey to represent codefendants ... is not per se violative of constitutional guarantees of effective assistance of counsel,” Holloway v. Arkansas, 435 U. S. 475, 482 (1978), a court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts warrant separate counsel. See also Cuyler v. Sullivan, 446 U. S. 335 (1980). As we said in Holloway:

“Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. . . . [A] conflict may . . . prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another.” 435 U. S., at 489-490.

Petitioner insists that the provision of waivers by all affected defendants cures any problems created by the multiple representation. But no such flat rule can be deduced from the Sixth Amendment presumption in favor of counsel of choice. Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Both the American Bar Association’s Model Code of Professional Responsibility and its Model Rules of Professional Conduct, as well as the rules of the California Bar Association (which governed the attorneys in this case), impose limitations on multiple representation of clients. See ABA Model Code of Professional Responsibility DR5-105(C) (1980); ABA Model Rules of Professional Conduct, Rule 1.7 (1984); Rules of Professional Conduct of the State Bar of California, Rules 5 and 7, Cal. Bus. & Prof. Code Ann. § 6076 (West 1974). Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.

For this reason, the Federal Rules of Criminal Procedure direct trial judges to investigate specially cases involving joint representation. In pertinent part, Rule 44(c) provides:

“[T]he court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.”

Although Rule 44(c) does not specify what particular measures may be taken by a district court, one option suggested by the Notes of the Advisory Committee is an order by the court that the defendants be separately represented in subsequent proceedings in the case. 18 U. S. C. App., p. 650. .This suggestion comports with our instructions in Holloway and in Glasser v. United States, 315 U. S. 60 (1942), that the trial courts, when alerted by objection from one of the parties, have an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment.

To be sure, this need to investigate potential conflicts arises in part from the legitimate wish of district courts that their judgments remain intact on appeal. As the Court of Appeals accurately pointed out, trial courts confronted with multiple representations face the prospect of being “whipsawed” by assertions of error no matter which way they rule. If a district court agrees to the multiple representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. See, e. g., Burger v. Kemp, 483 U. S. 776 (1987). On the other hand, a district court’s refusal to accede to the multiple representation may result in a challenge such as petitioner’s in this case. Nor does a waiver by the defendant necessarily solve the problem, for we note, without passing judgment on, the apparent willingness of Courts of Appeals to entertain ineffective-assistance claims from defendants who have specifically waived the right to conflict-free counsel. See, e. g., United States ex rel. Tonaldi v. Elrod, 716 F. 2d 431, 436-437 (CA7 1983); United States v. Vowteras, 500 F. 2d 1210, 1211 (CA2), cert. denied, 419 U. S. 1069 (1974); see also Glasser, supra, at 70 (“To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights”).

Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented. As the Court of Appeals for the Third Circuit stated in United States v. Dolan, 570 F. 2d 1177, 1184 (1978):

“[W]hen a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant’s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendant’s comprehension of the waiver.”

Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government’s witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.

For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. In the circumstances of this case, with the motion for substitution of counsel made so close to the time of trial, the District Court relied on instinct and judgment based on experience in making its decision. We do not think it can be said that the court exceeded the broad latitude which must be accorded it in making this decision. Petitioner of course rightly points out that the Government may seek to “manufacture” a conflict in order to prevent a defendant from having a particularly able defense counsel at his side; but trial courts are undoubtedly aware of this possibility, and must take it into consideration along with all of the other factors which inform this sort of a decision.

Here the District Court was confronted not simply with an attorney who wished to represent two coequal defendants in a straightforward criminal prosecution; rather, Iredale proposed to defend three conspirators of varying stature in a complex drug distribution scheme. The Government intended to call Bravo as a witness for the prosecution at petitioner’s trial. The Government might readily have tied certain deliveries of marijuana by Bravo to petitioner, necessitating vigorous cross-examination of Bravo by petitioner’s counsel. Iredale, because of his prior representation of Bravo, would have been unable ethically to provide that cross-examination.

Iredale had also represented Gomez-Barajas, one of the alleged kingpins of the distribution ring, and had succeeded in obtaining a verdict of acquittal for him. Gomez-Barajas had agreed with the Government to plead guilty to other charges, but the District Court had not yet accepted the plea arrangement. If the agreement were rejected, petitioner’s probable testimony at the resulting trial of Gomez-Barajas would create an ethical dilemma for Iredale from which one or the other of his clients would likely suffer.

Viewing the situation as it did before trial, we hold that the District Court’s refusal to permit the substitution of counsel in this case was within its discretion and did not violate petitioner’s Sixth Amendment rights. Other district courts might have reached differing or opposite conclusions with equal justification, but that does not mean that one conclusion was “right” and the other “wrong.” The District Court must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.

The judgment of the Court of Appeals is accordingly

Affirmed.

Justice Marshall,

with whom Justice Brennan joins, dissenting.

This Court today concludes that the District Court did not commit reversible error by denying the motion of petitioner Mark Wheat to add or substitute counsel of his choice. In the course of discussing the District Court’s ruling, the Court sets forth several principles with which I agree. The Court acknowledges, as it must, that the Sixth Amendment’s guarantee of assistance of counsel comprehends the right to select one’s own attorney. The Court also states that, although this constitutional right is not absolute, it mandates a presumption in favor of accepting a criminal defendant’s choice of counsel. Having articulated these principles, however, the Court unaccountably grants broad discretion to the trial court to decide whether this presumption has been overcome. As a consequence of this unwarranted deference to a trial court’s decision respecting a constitutional right, the Court countenances a ruling that is patently incorrect. Because I believe that the potential for a conflict of interest in this case did not overcome petitioner’s right to choose his own counsel, I dissent.

This Court long has recognized, and today reaffirms, that the Sixth Amendment provides protection for a criminal defendant’s choice of counsel. More than 50 years ago, we stated that “[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U. S. 45, 53 (1932). This Court has reiterated this principle on frequent occasions. See, e. g., Chandler v. Fretag, 348 U. S. 3, 9 (1954); Glasser v. United States, 315 U. S. 60, 70 (1942). Our statements on this score stem largely from an appreciation that a primary purpose of the Sixth Amendment is to grant a criminal defendant effective control over the conduct of his defense. As this Court previously has stated, the Sixth Amendment “grants to the accused personally the right to make his defense,” because “it is he who suffers the consequences if the defense fails.” Faretta v. California, 422 U. S. 806, 819-820 (1975). An obviously critical aspect of making a defense is choosing a person to serve as an assistant and representative. In addition, lodging the selection of counsel with the defendant generally will promote the fairness and integrity of criminal trials.

The right to counsel of choice, as the Court notes, is not absolute. When a defendant’s selection of counsel, under the particular facts and circumstances of a case, gravely imperils the prospect of a fair trial, a trial court may justifiably refuse to accede to the choice. Thus, a trial court may in certain situations reject a defendant’s choice of counsel on the ground of a potential conflict of interest, because a serious conflict may indeed destroy the integrity of the trial process. As the Court states, however, the trial court must recognize a presumption in favor of a defendant’s counsel of choice. This presumption means that a trial court may not reject a defendant’s chosen counsel on the ground of a potential conflict of interest absent a showing that both the likelihood and the dimensions of the feared conflict are substantial. Unsupported or dubious speculation as to a conflict will not suffice. The Government must show a substantial potential for the kind of conflict that would undermine the fairness of the trial process. In these respects, I do not believe my position differs significantly, if at all, from that expressed in the opinion of the Court. See ante, at 161-162, 164.

I do disagree, however, with the Court’s suggestion that the trial court’s decision as to whether a potential conflict justifies rejection of a defendant’s chosen counsel is entitled to some kind of special deference on appeal. The Court grants trial courts “broad latitude” over the decision to accept or reject a defendant’s choice of counsel, ante, at 163; although never explicitly endorsing a standard of appellate review, the Court appears to limit such review to determining whether an abuse of discretion has occurred, see ante, at 164. This approach, which the Court supports solely by noting the difficulty of evaluating the likelihood and magnitude of a conflict, accords neither with the nature of the trial court’s decision nor with the importance of the interest at stake.

The trial court’s decision as to whether the circumstances of a given case constitute grounds for rejecting a defendant’s chosen counsel — that is, as to whether these circumstances present a substantial potential for a serious conflict of interest — is a mixed determination of law and fact. The decision is properly described in this way because it requires and results from the application of a legal standard to the established facts of a case. See, e. g., Townsend v. Sain, 372 U. S. 293, 309, n. 6 (1963). Appellate courts traditionally do not defer to such determinations. See, e. g., ibid.; Sumner v. Mata, 455 U. S. 591, 597, and n. 10 (1982). For this reason, the Court in Cuyler v. Sullivan, 446 U. S. 335 (1980), held that a trial court’s determination as to whether an attorney had represented conflicting interests at trial was not entitled to any deference. The determination at issue here, which focuses on the potential for a conflict of interest, is not different in any relevant respect.

The inappropriateness of deferring to this determination becomes even more apparent when its constitutional significance is taken into account. Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 502-503 (1984) (stating that “[w]hen the standard governing the decision of a particular case is provided by the Constitution,” close appellate scrutiny is particularly important). The interest at stake in this kind of decision is nothing less than a criminal defendant’s Sixth Amendment right to counsel of his choice. The trial court simply does not have “broad latitude,” ante, at 163, to vitiate this right. In my view, a trial court that rejects a criminal defendant’s chosen counsel on the ground of a potential conflict should make findings on the record to facilitate review, and an appellate court should scrutinize closely the basis for the trial court’s decision. Only in this way can a criminal defendant’s right to counsel of his choice be appropriately protected.

The Court’s resolution of the instant case flows from its deferential approach to the District Court’s denial of petitioner’s motion to add or substitute counsel; absent deference, a decision upholding the District Court’s ruling would be inconceivable. Indeed, I believe that even under the Court’s deferential standard, reversal is in order. The mere fact of multiple representation, as the Court concedes, will not support an order preventing a criminal defendant from retaining counsel of his choice. As this Court has stated on prior occasions, such representation will not invariably póse a substantial risk of a serious conflict of interest and thus will not invariably imperil the prospect of a fair trial. See Cuyler v. Sullivan, supra, at 346-348; Holloway v. Arkansas, 435 U. S. 475, 482-483 (1978). The propriety of the District Court’s order thus depends on whether the. Government showed that the particular facts and circumstances of the multiple representation proposed in this case were such as to overcome the presumption in favor of petitioner’s choice of counsel. I believe it is clear that the Government failed to make this showing. Neither Eugene Iredale’s representation of Juvenal Gomez-Barajas nor Iredale’s representation of Javier Bravo posed any threat of causing a conflict of interest.

At the time of petitioner’s trial, Iredale’s representation of Gomez-Barajas was effectively completed. As the Court notes, Iredale had obtained an acquittal for Gomez-Barajas on charges relating to a conspiracy to distribute marijuana. Iredale also had negotiated an agreement with the Government under which Gomez-Barajas would plead guilty to charges of tax evasion and illegal importation of merchandise, although the trial court had not yet accepted this plea arrangement. Gomez-Barajas was not scheduled to appear as a witness at petitioner’s trial; thus, Iredale’s conduct of that trial would not require him to question his former client. The only possible conflict this Court can divine from Iredale’s representation of both petitioner and Gomez-Barajas rests on the premise that the trial court would reject the negotiated plea agreement and that Gomez-Barajas then would decide to go to trial. In this event, the Court tells us, “petitioner’s probable testimony at the resulting trial of Gomez-Barajas would create an ethical dilemma for Iredale.” Ante, at 164.

This argument rests on speculation of the most dubious kind. The Court offers no reason to think that the trial court would have rejected Gomez-Barajas’ plea agreement; neither did the Government posit any such reason in its argument or brief before this Court. The most likely occurrence at the time petitioner moved to retain Iredale as his defense counsel was that the trial court would accept Gomez-Barajas’ plea agreement, as the court in fact later did. Moreover, even if Gomez-Barajas had gone to trial, petitioner probably would not have testified. The record contains no indication that petitioner had any involvement in or information about crimes for which Gomez-Barajas might yet have stood trial. The only alleged connection between petitioner and Gomez-Barajas sprang from the conspiracy to distribute marijuana, and a jury already had acquitted Gomez-Barajas of that charge. It is therefore disingenuous to say that representation of both petitioner and Gomez-Barajas posed a serious potential for a conflict of interest.

Similarly, Iredale’s prior representation of Bravo was not a cause for concern. The Court notes that the prosecution intended to call Bravo to the stand at petitioner’s trial and asserts that Bravo’s testimony could well have “necessitated] vigorous cross-examination ... by petitioner’s counsel.” Ibid. The facts, however, belie the claim that Bravo’s anticipated testimony created a serious potential for conflict. Contrary to the Court’s inference, Bravo could not have testified about petitioner’s involvement in the alleged marijuana distribution scheme. As all parties were aware at the time, Bravo did not know and could not identify petitioner; indeed, prior to the commencement of legal proceedings, the two men never had heard of each other. Bravo’s eventual testimony at petitioner’s trial related to a shipment of marijuana in which petitioner was not involved; the testimony contained not a single reference to petitioner. Petitioner’s counsel did not cross-examine Bravo, and neither petitioner’s counsel nor the prosecutor mentioned Bravo’s testimony in closing argument. All of these developments were predictable when the District Court ruled on petitioner’s request that Iredale serve as trial counsel; the contours of Bravo’s testimony were clear at that time. Given the insignificance of this testimony to any matter that petitioner’s counsel would dispute, the proposed joint representation of petitioner and Bravo did not threaten a conflict of interest.

Moreover, even assuming that Bravo’s testimony might have “necessitated] vigorous cross-examination,” the District Court could have insured against the possibility of any conflict of interest without wholly depriving petitioner of his constitutional right to the counsel of his choice. Petitioner’s motion requested that Iredale either be substituted for petitioner’s current counsel or be added to petitioner’s defense team. Had the District Court allowed the addition of Iredale and then ordered that he take no part in the cross-examination of Bravo, any possibility of a conflict would have been removed. Especially in light of the. availability of this precautionary measure, the notion that Iredale’s prior representation of Bravo might well have caused a conflict of interest at petitioner’s trial is nothing short of ludicrous.

The Court gives short shrift to the actual circumstances of this case in upholding the decision below. These circumstances show that the District Court erred in denying petitioner’s motion to substitute or add Iredale as defense counsel. The proposed representation did not pose a substantial risk of a serious conflict of interest. The District Court therefore had no authority to deny petitioner’s Sixth Amendment right to retain counsel of his choice. This constitutional error demands that petitioner’s conviction be reversed. I accordingly dissent.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

This is not the first case in which the Court has demonstrated “its apparent unawareness of the function of the independent lawyer as a guardian of our freedom.” Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 371 (1985) (Stevens, J., dissenting) (footnote omitted). But even under the Court’s paternalistic view of the citizen’s right to select his or her own lawyer, its analysis of this case is seriously flawed. As Justice Marshall demonstrates, the Court exaggerates the significance of the potential conflict. See ante, at 168-172. Of greater importance, the Court gives inadequate weight to the informed and voluntary character of the clients’ waiver of their right to conflict-free representation. Particularly, the Court virtually ignores the fact that additional counsel representing petitioner had provided him with sound advice concerning the wisdom of a waiver and would have remained available during the trial to assist in the defense. Thus, this is not a case in which the District Judge faced the question whether one counsel should be substituted for another; rather the question before him was whether petitioner should be permitted to have additional counsel of his choice. I agree with Justice Marshall that the answer to that question is perfectly clear.

Accordingly, although I agree with the Court’s premise that district judges must be afforded wide latitude in passing on motions of this kind, in this case it is abundantly clear to me that the District Judge abused his discretion and deprived this petitioner of a constitutional right of such fundamental character that reversal is required.

       The Court of Appeals also found that petitioner was not prejudiced by a conference the District Court held with counsel in petitioner’s absence, and that petitioner had no right to insist upon a plea bargain from the Government. Our grant of certiorari, however, was limited to the issue addressed in the text of this opinion, and we do not reach the other rulings made by the Court of Appeals.

       See, e. g., In re Paradyne Corp., 803 F. 2d 604, 611, n. 16 (CA11 1986) (the right of counsel “does not override the broader societal interests in the effective administration of justice ... or in the maintenance of ‘public confidence in the integrity of our legal system’”) (citation omitted); In re Grand Jury Subpoena Served Upon Doe, 781 F. 2d 238, 250-251 (CA2), cert. denied sub nom. Roe v. United States, 475 U. S. 1108 (1986) (“[C]ourts have the power and duty to disqualify counsel where the public interest in maintaining the integrity of the judicial system outweighs the accused’s constitutional right”); United States v. Reese, 699 F. 2d 803, 805 (CA6 1983) (a trial court should override a defendant’s knowing waiver only in “compelling circumstances”); United States v. Flanagan, 679 F. 2d 1072, 1076 (CA3 1982) (a trial court may refuse a waiver'when an actual conflict is “very likely”), rev’d on other grounds, 465 U. S. 259 (1984).

       Our holding in Faretta v. California, 422 U. S. 806 (1975), that a criminal defendant has a Sixth Amendment right to represent himself if he voluntarily elects to do so, does not encompass the right to choose any advocate if the defendant wishes to be represented by counsel.

       Bravo was in fact called as a witness at petitioner’s trial. See Tr. 728 et seq. His testimony was elicited to demonstrate the transportation of drugs that the prosecution hoped to link to petitioner.

       In stating this principle, I mean to address only cases in which all parties to the potential conflict have made a fully informed waiver of their right to conflict-free representation. It is undisputed in this case that petitioner, as well as Juvenal Gomez-Barajas and Javier Bravo, had agreed to waive this right.

       It is true that a trial court, in making a determination regarding the potential for a conflict of interest, must make a prediction as to future events, which frequently is a difficult task. This aspect of the decision, however, does not call for a lax standard of review. The question on review is whether the trial court was correct in holding that the facts and circumstances apparent at the time of its decision demonstrated a substantial potential for a serious conflict of interest. Appellate courts are fully capable of posing and resolving this question. A deferential standard of review therefore is not necessary to generate appellate decisions that take into account and appropriately reflect the uncertainties existing at the time of the trial court’s ruling.

       The very insignificance of Bravo’s testimony, combined with the timing of the prosecutor’s decision to call Bravo as a witness, raises a serious concern that the prosecutor attempted to manufacture a conflict in this case. The prosecutor’s decision to use Bravo as. a witness was an llth-hour development. Throughout the course of plea negotiations with Bravo, the prosecutor never had suggested that Bravo testify at petitioner’s trial. At Bravo’s guilty-plea proceedings, when, Iredale notified the District Court of petitioner’s substitution motion, the prosecutor conceded that he had made no plans to call Bravo as a witness. Only after the prosecutor learned of the substitution motion and decided to oppose it did he arrange for Bravo’s testimony by agreeing to recommend to the trial court a reduction in Bravo’s sentence. Especially in light of the scarce value of Bravo’s testimony, this prosecutorial behavior very plausibly may be viewed as a maneuver to prevent Iredale from representing petitioner at trial. Iredale had proved to be a formidable adversary; he previously had gained an acquittal for the alleged kingpin of the marijuana distribution scheme. As the District Court stated in considering petitioner’s motion: “Were I in [petitioner’s] position I’m sure I would want Mr. Iredale representing me, too. He did a fantastic job in that [Gomez-Barajas] trial . . . .” App. 124-125. The prosecutor’s decision to call Bravo as a witness may well have stemmed from a concern that Iredale would do an equally fantastic job at petitioner’s trial. As the Court notes, governmental maneuvering of this kind is relevant to a trial court’s decision as to whether to accept a criminal defendant’s chosen counsel. The significant possibility that the prosecutor was engaging in such bad-faith conduct provides yet another reason to dispute the Court’s resolution of this case.

       The Court somewhat obliquely suggests that the timing of the motion to substitute or add Iredale as trial counsel helps to justify the District Court’s ruling. See ante, at 155,157,163. I cannot agree. Iredale made clear to the District Court that notwithstanding the proximity of the scheduled trial date, he would neither need nor request a continuance of the trial were he substituted or added as defense counsel. The timing of petitioner’s motion is therefore relevant only insofar as it affected the ability of the District Court to consider the issues that the motion raised. The District Court itself believed that it had sufficient time to consider these issues. Far from denying the motion because of its timing, the District Court issued a decision on the merits after full briefing and oral argument.

      In my view, deference to the trial judge is appropriate in light of his or her greater familiarity with such factors as the ability of the defendant knowingly and voluntarily to waive a potential conflict (including the possibility that a codefendant may be exerting undue influence over the defendant), the character of the lawyers, the particular facts of the case, and the availability of alternative counsel of a like caliber.


source: Caselaw Access Project

author: Justice Marshall Justice White,

license: Public Domain

text:
    GOODYEAR ATOMIC CORP. v. MILLER et al.
    No. 86-1172.
    Argued January 19, 1988
    Decided May 23, 1988

      Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Blackmun, Stevens, and Scalia, JJ., joined. White, J., filed a dissenting opinion, in which O’Connor, J., joined, -post, p. 186. Kennedy, J., took no part in the consideration or decision of the case.

      Robert E. Tait argued the cause and filed «briefs for appellant.

      Thomas W. Merrill argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Richard G. Ta-ranto, and Leonard Schaitman.

      Stewart R. Jaffy argued the cause for appellees. With him on the brief for appellee Miller were Michael H. Gottes-man, David M. Silberman, and Laurence Gold. Anthony J. Celebrezze, Jr., Attorney General of Ohio, and Helen M.

      Ninos, Dennis L. Hufstader, and Jeffery W. Clark, Assistant Attorneys General, filed a brief for appellee Industrial Commission of Ohio.

      Briefs of amici curiae urging affirmance were filed for the National Conference of State Legislatures et al. by Benha-Ruth Solomon, Joyce Holmes Benjamin, and Beate Bloch; and for the Oil, Chemical, and Atomic Workers International Union by Donald J. Mares and John W. McKendree.

   Justice Marshall

delivered the opinion of the Court.

The issue presented in this case is whether the Supremacy Clause bars the State of Ohio from subjecting a private contractor operating a federally owned nuclear production facility to a state-law workers’ compensation provision that provides an increased award for injuries resulting from an employer’s violation of a state safety regulation.

I — i

This case arises from an accident involving a worker at the Portsmouth Gaseous Diffusion Plant, a nuclear production facility located near Piketon, Ohio. The plant is owned by the United States, but at all times relevant to this action it was operated by a private company, appellant Goodyear Atomic Corporation, under contract with the Department of Energy (DOE). On July 30, 1980, appellee Esto Miller, a maintenance mechanic employed by Goodyear at the Portsmouth plant, fell from a scaffold while performing routine maintenance work and fractured his left ankle. His fall apparently was caused when his glove caught on a bolt protruding from the guardrail of the scaffolding. Miller applied to the Ohio Industrial Commission for an award under the State’s workers’ compensation program, for which Goodyear pays premiums to cover its Portsmouth employees. He received about $9,000 in workers’ compensation.

After returning to work, Miller filed an application for an additional award on the ground that his injury had resulted from Goodyear’s violation of a state safety requirement. Miller alleged that his fall was caused by Goodyear’s failure to comply with Ohio Admin. Code §4121:1-5-03(D)(2) (1987), which provides that “[e]xposed surfaces [on scaffolds] shall be free from sharp edges, burrs or other projecting parts.” The Ohio Constitution provides that when an injury is caused by an employer’s failure to comply with a specific state safety requirement, the Industrial Commission shall provide an additional award of 15% to 50% of the benefits already received. Ohio Const., Art. II, § 35. The state insurance fund recoups these additional payments by increasing the premium paid by the employer. Ibid.

The Ohio Industrial Commission denied Miller’s claim for a supplemental award. The Commission held that “the [Ohio] Codes of Specific Safety Requirements . . . may not be applied to the Portsmouth Gaseous Diffusion Plant under the doctrine of federal preemption.” Claim No. 80-19975 (Mar. 8, 1983), App. 18. Miller filed a mandamus action in the Ohio Court of Appeals, seeking an order directing the Industrial Commission to consider his application. The court held that “[u]ntil it is clear that the federal government has preempted the field of safety regulation for safety hazards unrelated to radiation, . . . state specific safety regulations that give rise to an award for violation thereof are equally applicable to an entity that contracts with the federal government for operation of a nuclear power facility owned exclusively by the federal government.” No. 84AP-208 (July 25, 1985), App. 17. The court therefore ordered the Industrial Commission to consider Miller’s claim that he was due an additional award because his injury was caused by a violation of a state safety regulation.

A divided Ohio Supreme Court affirmed the decision of the Court of Appeals. State ex rel. Miller v. Ohio Industrial Comm’n, 26 Ohio St. 3d 110, 497 N. E. 2d 76 (1986) (per curiam). Relying on the federal pre-emption analysis of Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984), the court held that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. §2011 et seq. (1982 ed. and Supp. IV), did not pre-empt Ohio from applying workers’ compensation safety requirements unrelated to radiation hazards to nuclear facilities. 26 Ohio St. 3d, at 111-112, 497 N. E. 2d, at 77-78. In dissent, Justice Wright agreed with Goodyear’s separate claim, not addressed by the majority, that in the absence of clearly expressed authorization from Congress, the Supremacy Clause barred the application of the state workers’ compensation safety requirements to a federally owned facility. Justice Wright argued that Congress had not provided the necessary clear authorization to justify the application of the Ohio workers’ compensation scheme. Id., at 112-115, 497 N. E. 2d, at 78-80. We noted probable jurisdiction of Goodyear’s appeal, 483 U. S. 1004 (1987), and now affirm the judgment of the Ohio Supreme Court on different reasoning.

r-H l-H

Although neither party contests our appellate jurisdiction over this case, we must independently determine as a threshold matter that we have jurisdiction. See Brown Shoe Co. v. United States, 370 U. S. 294, 305-306 (1962). Title 28 U. S. C. § 1257(2) gives this Court appellate jurisdiction over final judgments by the highest court of a State where the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution and the decision is in favor of its validity. “[A] state statute is sustained within the meaning of § 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds.” Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 441 (1979). In this case, the additional-award provision of Ohio’s workers’ compensation statute, as applied to the Portsmouth facility, was drawn in question on the ground that it violated the Supremacy Clause, and the Ohio Supreme Court upheld the statute’s application.

The more difficult question is whether the judgment is “final” within the meaning of 28 U. S. C. § 1257(2), even though further proceedings are anticipated before the Ohio Industrial Commission. The judgment of the Ohio Supreme Court requires that the Industrial Commission consider appellee’s claim that his injury was caused by a failure to comply with a state safety regulation. In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), we recognized four situations in which this Court views a judgment as final under § 1257(2) although further state proceedings are contemplated. In the fourth category are cases

“where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.” Id., at 482-483.

We believe the present case falls within this fourth category. The federal question whether the additional workers’ compensation award is barred by federal law has been finally determined by the Ohio Supreme Court, and a reversal of the Ohio Supreme Court’s holding would preclude any further proceedings. In addition, even if appellant prevails before the Industrial Commission on nonfederal grounds, for example, if the Commission determines that there was no violation of the state safety regulation, the unreviewed decision of the Ohio Supreme Court might seriously erode federal policy in the area of nuclear production. The federal pre-emption analysis of the Ohio court sanctions direct state regulation of nonradiological hazards at the Portsmouth facility, the only nuclear facility producing nuclear fuel for the Navy’s nuclear fleet. Moreover, the decision has important implications for the regulation of federally owned nuclear production facilities in other States. Following our “pragmatic approach” to the question of finality, Cox Broadcasting Corp. v. Cohn, supra, at 486, we therefore conclude that the Ohio decision on the federal issue is a final judgment for purposes of 28 U. S. C. § 1257(2).

H-i I — I

It is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides “clear and unambiguous” authorization for such regulation. EPA v. State Water Resources Control Board, 426 U. S. 200, 211 (1976); accord, Hancock v. Train, 426 U. S. 167, 178-179 (1976); Mayo v. United States, 319 U. S. 441, 445 (1943). As an initial matter, therefore, we consider whether the federally owned Portsmouth facility is likewise shielded from direct state regulation even though the facility is operated by a private party under contract with the United States. We believe this question was answered in Hancock v. Train, 426 U. S., at 168, in which we faced the issue whether a State could enforce its pollution emission limitations against “federally owned or operated installations” by requiring that such installations obtain a state permit. One of the facilities at issue in Hancock was the Paducah Gaseous Diffusion Plant, which, like the Portsmouth facility, is a federally owned nuclear production facility operated by a private contractor. Id., at 174, n. 23. Nuclear production facilities such as the Paducah and Portsmouth plants are authorized by statute to carry out a federal mission, with federal property, under federal control. The Court struck down the permit requirement in Hancock, reasoning that without clear congressional authorization, “‘the federal function must be left free’ of [state] regulation.” Id., at 179, quoting Mayo v. United States, supra, at 447. Hancock thus establishes that a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.

In this case, however, we are not presented with a direct state regulation of the operation of the Portsmouth facility. Rather, the case involves the imposition of a supplemental award of workers’ compensation, chargeable against Goodyear, for an injury caused by Goodyear’s failure to comply with a state safety regulation. Appellant and the Solicitor General argue that the application of the Ohio additional award provision is nonetheless tantamount to a regulation of the Portsmouth facility and is thus invalid under the Supremacy Clause. We need not decide this issue, however, for we conclude that even if the provision is sufficiently akin to direct regulation of the Portsmouth facility to be potentially barred by the Supremacy Clause, ch. 822, 49 Stat. 1938, 40 U. S. C. §290, provides the requisite clear congressional authorization for the application of the provision to workers at the Portsmouth facility.

Section 290 provides in relevant part:

“Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliances with the State workmen’s compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be.”

Both appellant and the Solicitor General concede that the initial workers’ compensation award received by respondent Miller is authorized by § 290. They contend, however, that § 290 does not authorize the supplemental award provided in Ohio’s workers’ compensation law when an employer violates a specific state safety regulation. At bottom, appellant and the Solicitor General argue that the phrase “workmen’s compensation laws” in §290, which is not defined, was not intended to include the additional-award provision in Ohio’s workers’ compensation law. Appellant claims that in the absence of a precise definition, we should infer that Congress envisioned the typical workers’ compensation Act, under which workers are automatically entitled to certain benefits when they suffer a work-related injury, without regard to the employer’s fault. A State’s authority to enforce its workers’ compensation laws under § 290, appellant continues, should be limited to such standard awards.

We do not believe appellant’s construction of § 290 can be squared with the statute’s language and history. Section 290 provides that a state authority charged with enforcing “workmen’s compensation laws,” which in Ohio is the Industrial Commission, “shall have the.power and authority to apply such laws” to federal premises “in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State.” This language places no express limitation on the type of workers’ compensation scheme that is authorized. On its face, §290 compels the same workers’ compensation award for an employee injured at a federally owned facility as the employee would receive if working for a wholly private facility. In addition, at the time of the passage of § 290 in 1936, workers’ compensation laws provided a wide variety of compensation schemes that do not fit neatly within appellant’s view of the “typical” scheme. At least 15 States provided remedies in addition to basic workers’ compensation awards when an employee was injured because of specified kinds of employer misconduct. Eight of these States, including Ohio, provided supplemental awards when the employer violated a specific safety regulation. We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts. See Director, OWCP v. Perini North River Associates, 459 U. S. 297, 319-320 (1983). In the absence of affirmative evidence in the language or history of the statute, we are unwilling to assume that Congress was ignorant of the substantial number of States providing additional workers’ compensation awards when a state safety regulation was violated by the employer. Indeed, Congress appears to have recognized the diversity of workers’ compensation schemes when it provided that workers’ compensation would be awarded to workers on federal premises “in the same way and to the same extent” as provided by state law. The meaning of “workmen’s compensation laws” in §290, of course, is not infinitely elastic. We need not address the outer boundaries of that term in this case, however, because we believe it is clear that Congress intended Ohio’s law and others of its ilk, which were solidly entrenched at the time of the enactment of § 290, to apply to federal facilities “to the same extent” that they apply to private facilities within the State.

The only evidence in the legislative history of §290 that appellant and the Solicitor General muster in support of their position is that Congress rejected a proposal that would have authorized States to apply state safety and insurance laws directly to federal projects. See S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936). But Congress’ reluctance to allow direct state regulation of federal projects says little about whether Congress was likewise concerned with the incidental regulatory effects arising from the enforcement of a workers’ compensation law, like Ohio’s, that provides an additional award when the injury is caused by the breach of a safety regulation. The effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision. Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers’ compensation award if an employee’s injury is caused by a safety violation. We believe Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not. Cf. Silkwood v. Kerr-McGee Corp., 464 U. S., at 266 (Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted). Because the permission of incidental regulation is consistent with the preclusion of direct regulation, the legislative history relied on by appellant and the Solicitor General does not undermine the plain language of § 290. We conclude that the additional award provision of Ohio’s workers’ compensation law is unambiguously authorized by §290 and therefore does not run afoul of the Supremacy Clause. Accordingly, the judgment of the Ohio Supreme Court is affirmed.

It is so ordered.

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

Justice White,

with whom Justice O’Connor joins, dissenting.

The Court’s seminal decision in McCulloch v. Maryland, 4 Wheat. 316 (1819), establishes the principle that the States may not exercise their sovereign powers so as to control those instrumentalities of the United States which have been judged necessary and proper to carry into effect federal laws and policies. Although the narrow issue in that case involved only the assertion by the State of Maryland of its power to tax a federal bank, the Court laid down a more general construction of the Supremacy Clause that has proved to be enduring in its force of reason. As the Court stated: “The attempt to use [state sovereign power] on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give.” Id., at 430. The contrary principle would be “capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States.” Id., at 432. “The result,” the Court concluded, “is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” Id., at 436 (emphasis added).

Although, again, the narrow issue in McCulloch concerned only the power to tax, which as the Court noted “involves the power to destroy,” id., at 431, the passages quoted above demonstrate that the decision was formulated, explicitly, with sufficient breadth to apply to other measures a State might impose that would “retard, impede, burden, or in any manner control” the operations of federal instrumentalities. Id., at 436. And, clearly, the power to regulate also involves “the power to destroy” if the regulatory web is spun too tightly around its object. More commonly, however, the additional and perhaps conflicting regulations imposed by a State would simply burden the federal instrumentality, interfere with its operations, and frustrate the federal objectives it is designed to achieve. Nonetheless, the law has long been settled that such regulation cannot be imposed on federal instrumentalities by the States, under the Supremacy Clause, unless the Federal Government directly indicates that it finds such impositions to be consistent with the proper pursuit of its powers under federal law. Hancock v. Train, 426 U. S. 167, 178-179 (1976); Mayo v. United States, 319 U. S. 441, 447-448 (1943).

In this case the State of Ohio seeks to require a federal nuclear facility, which all concede to be the equivalent of any other federal instrumentality, to make a “bonus” money payment to workers who are injured when the injury results from the facility’s failure to comply with “any specific [state] requirement for the protection of the lives, health or safety of employees.” Ohio Const., Ait. II, §35. Although the Court declines to decide whether this provision of state law is tantamount to a regulation of the facility or to some similarly impermissible imposition upon it, ante, at 182, I believe that no other view is tenable on the facts before us.

Initially, the proper focus under the Supremacy Clause is not the avowed purpose for which the State adopts a given provision but the actual effect of the provision on the operation of a federal instrumentality and on its ability to achieve the objectives of federal law and policy for which it has been created. Perez v. Campbell, 402 U. S. 637, 651-652 (1971). The Court has held that even the general framework of state workers’ compensation laws may not be applied at places that lie within the exclusive jurisdiction of the Federal Government. Murray v. Gerrick & Co., 291 U. S. 315 (1934). And yet the provision of Ohio law at issue in this case is much more specific in its application, and in its regulatory effect upon this federal facility, than is the general framework of such laws. The basic feature of the state statutory regimes for the compensation of workers is that the common law governing the relationship between employer and employee, whose doctrines had become so disadvantageous to employees, is replaced by an automatic entitlement of the employee to certain benefits when injured in the course of employment. See 1 A. Larson, Law of Workmen’s Compensation §§1.10-3.40 (1985). Unlike this basic scheme, however, which does not pressure the federal facility to alter its operations in any specific respect to comply with particular state regulations, the Ohio law exposes the facility to a special penalty if it does not comply with “any specific [state] requirement for the protection of the lives, health or safety of employees.” Ohio Const., Art. II, §35. The specificity of these requirements is much more intrusive on the management of the federal facility than even a state workers’ compensation law that would preserve the employee’s right to sue the employer for willful misconduct or for intentional injury, as do the laws of several States. In terms of the regulatory impact on the federal instrumentality, it is one thing for the facility to know that it should manage its operations so as to minimize the risk of injuries to its employees; it is quite another to expose it to money penalties for failing to comply with the whole panoply of specific state regulations that dictate precise rules to govern very detailed aspects of employee health and safety.

It is quite obvious that an attempt by the State of Ohio to impose these same kinds of specific regulations on the federal facility, directly, by obliging the facility to satisfy them all or else to suspend operations, would run afoul of the Supremacy Clause. The rule at issue here has a similar effect. Appel-lees claim that the federal facility violated a provision in the code of safety requirements, which the State of Ohio has adopted by administrative rule. The provision sets out specific restrictions on mobile work platforms and rolling platforms, and says that “[ejxposed surfaces shall be free from sharp edges, burrs or other projecting parts.” Ohio Admin. Code §4121:1-5-03(D)(2) (1987). There are thousands of such requirements in the administrative rules adopted by the Ohio Industrial Commission’s Division of Safety and Hygiene, which in their current version run to well over 200 double-columned pages of meticulous prescriptions, illustrated in minute detail with diagrams, graphs, and charts, see Ohio Admin. Code, ch. 4121:1 (1987), and there are countless other specific requirements in the State’s other laws and regulations. It will not do to say that the State of Ohio has not attempted to regulate this facility directly, but simply has exposed it to possible money payments for failure to comply with these specific requirements, since such requirements are often enforced by fines rather than by enjoining specific conduct, and in any event the apparent means of enforcing all of these rules is through the workers’ compensation awards permitted under state law.

Nor does it make sense to say that the State of Ohio is not fining the facility, but is only penalizing it in the form of additional compensation to injured workers. It cannot matter that the extra payment is made only in the event of an actual injury; one might just as well argue that a regulatory fine would not be a burden if it were imposed not every day but only on the less frequent occasions when inspections are held. Even more to the point, if the amount of the money penalty were very large, the direct compulsion that would be brought to bear upon the federal facility to knuckle under and scrutinize its operations for compliance with every jot and tittle of the state administrative rules is apparent. The case is no different because the amount of the extra “bonus” award in any given instance may be small. In Ohio v. Thomas, 173 U. S. 276 (1899), the contested provision involved nothing more than whether the person in charge of an eating house at a federal home for disabled veterans was required under state law to put out a small printed sign that would read “oleomargarine sold and used here” when he served oleomargarine to the inmates. The state law was found to be invalid as applied to the federal facility, under the Supremacy Clause, without regard to the plain fact that the contested imposition was such a slight one, for the principle remains the same in such a case.

The mechanics of the Ohio provision, as interpreted by the Ohio courts, reinforce both the obvious regulatory effect of this state law and the important differences between such a provision and a basic workers’ compensation scheme. First, unlike workers’ compensation, which provides an award to every employee who is injured on the job regardless of how the injury occurred, the additional payment here is only available when the facility fails to comply with a state regulatory “requirement.” Even the regulatory provisions embodied in federal laws and rules have been held not to activate the extra money penalty afforded by state law. See, e. g., State ex rel. Ish v. Industrial Comm’n, 19 Ohio St. 3d 28, 482 N. E. 2d 941 (1985); State ex rel. Roberts v. Industrial Comm’n, 10 Ohio St. 3d 1, 460 N. E. 2d 251 (1984). Second, the necessity that the state requirement be “specific” in its dictates has been strictly construed. It “does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission.” State ex rel. Trydle v. Industrial Comm’n, 32 Ohio St. 2d 257, 291 N. E. 2d 748, 750 (1972). The question whether a particular safety requirement is sufficiently “specific” to support an extra money penalty has often been litigated in the Ohio courts, and such awards are invalidated unless the claimant is able to demonstrate that the specific requirement “demands that some particular and definite act or thing be done.” State ex rel. Holdosh v. Industrial Comm’n, 149 Ohio St. 179, 181-182, 78 N. E. 2d 165, 166 (1948). See also State ex rel. Rae v. Industrial Comm’n, 136 Ohio St. 168, 24 N. E. 2d 594 (1939); Trydle, supra; State ex rel. Jack Conie & Sons Corp. v. Industrial Comm’n, 56 Ohio St. 2d 150, 382 N. E. 2d 1366 (1978). In order to secure the penalty award, the employee must show that the regulatory requirement is “definite” in the sense that it leaves no discretion to the employer — does not make it at all “a matter of his own choosing” — how to comply with the specific requirement. State ex rel. Fast & Co. v. Industrial Comm’n, 176 Ohio St. 199, 201, 198 N. E. 2d 666, 667 (1964).

Since this provision of Ohio law exacts a monetary penalty only for failure to comply with state laws and regulations, and indeed only for failure to comply with those state regulations which are so specific that they dictate precisely what steps the employer must take to avoid this increased financial exposure, the principal effect of this provision can only be to induce the employer to adhere to each of the various health and safety regulations that the State has adopted. And therefore the impact of such a provision on a federal instrumentality presents a very different problem, for purposes of analysis under the Supremacy Clause, from that posed by the mere application of a state workers’ compensation scheme.

The Court today skirts these difficulties and rests its disposition on the view that, no matter how extensive the actual regulatory effect of this state law may be, Congress has sanctioned its application to federal instrumentalities by enacting 40 U. S. C. § 290. The Court finds in this statute the “unambiguous” and “clear congressional mandate” approving such state regulation that we have required in past cases. Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110, 122 (1954); EPA v. State Water Resources Control Board, 426 U. S. 200, 211 (1976). I disagree.

Section 290 authorizes each State to apply its “workmen’s compensation laws” to all “property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State.” The crux of the matter is whether Congress intended by this provision to open up all federal instrumentalities to the kind of potentially onerous regulation of their operations that is imposed by the Ohio provision for money penalties. I do not believe that in authorizing the States to apply these compensation laws to federal instrumentalities “in the same way and to the same extent” as they apply to other employers, Congress had any purpose to expose federal establishments to coercive financial pressure to comply with a slew of detailed state regulations about how to carry on their operations. Nothing in the statute or its background suggests that Congress had such an intent, and certainly nothing at all suggests that any such position was “clearly” or “unambiguously” approved by Congress. I am unimpressed by the fact that a small fraction of the States permitted such additional awards at the time § 290 was passed; if the “clear congressional mandate” approving such state regulations cannot be found in the federal statute itself, then the obscure practices of a few States at the time of enactment will not suffice to create one. Congress need not explicitly disapprove every contrary aspect of the workers’ compensation laws of the several States in order to refrain from giving them its “unambiguous” blessing.

Section 290 was enacted in response to the Court’s decision in Murray v. Gerrick & Co., 291 U. S. 315 (1934), which had held that state workers’ compensation laws may not be applied at all in areas under the exclusive jurisdiction of the Federal Government. The purpose of the bill as stated was simply the humanitarian one of “correcting this situation,” in which workers employed on federal projects were deprived of the benefits of coverage purely because of an oddity of location. S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936); H. R. Rep. No. 2656, 74th Cong., 2d Sess., 1 (1936). As the Senate Report explained at greater length: “The purpose of the amended bill is to fill a conspicuous gap in the workmen’s compensation field by furnishing protection against death or disability to laborers and mechanics employed by contractors or other persons on Federal property.” S. Rep. No. 2294, at 1.

That Congress intended nothing more than to provide much-needed coverage to these workers is shown by the single revealing item in the scanty legislative history of the statute. The House version of the bill not only would have extended coverage to these workers, but also would have subjected federal property to state safety and insurance regulations and would have authorized state officers to enter upon federal premises in furtherance of these aims. The Senate struck out these latter provisions at the request of the Executive Branch of the Federal Government, noting expressly that they “would not only produce conflicts of authority between State and Federal officers but would also mark a wide departure from the well-established principle that Federal officers should have complete charge of any regulations pertaining to Federal property.” S. Rep. No. 2294, at 2. As no such departure from normal practice was intended by Congress, the Senate version of the bill was enacted.

This background to the enactment of § 290 shows that Congress did not intend to expose federal instrumentalities to the kind of detailed and mandatory regulation that is provided by the Ohio law at issue in this ease. The Court’s response on this point is simply to assert that “[t]he effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision.” Ante, at 185. In some instances the Court may be correct that the effects of direct regulation could be more intrusive than a provision for penalty awards, but the question here is not whether these two things are exactly the same, but simply whether the “regulatory effects” of the penalty provision, which as set out above are far from “incidental,” are the kinds of effects that Congress did not intend to sanction when it enacted §290. These effects are clearly impermissible under the rationale that the Senate articulated for removing from the bill the two obnoxious provisions that had been included in the House version. And even if I were to conclude that Congress had acted ambiguously on this score, I would at least be forced to conclude that Congress offered no “clear” or “unambiguous” mandate for the kind of specific regulatory compulsion that this Ohio law exerts upon this federal facility.

I therefore respectfully dissent.

       The Ohio Supreme Court in this case failed to consider the fundamental distinction between state regulation of private facilities and state regulation of federal facilities. When dealing with state regulation of private facilities, analysis under the Supremacy Clause centers on whether Congress has taken affirmative action to pre-empt the state regulation in question. See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 712-713 (1985). On the other hand, because the Supremacy Clause immunizes the activities of the Federal Government from state interference, Mayo v. United States, 319 U. S. 441, 445 (1943), direct state regulation of federal facilities is allowed only to the extent that Congress has clearly authorized such regulation.

       With certain limited exceptions, the DOE, as agent of the United States, is the exclusive owner of all nuclear production facilities. See 42 U. S. C. § 2061(a); see also Department of Energy Organization Act, 91 Stat. 577, 42 U. S. C. § 7151(a) (transferring responsibility to DOE from the Energy Research and Development Administration). The DOE is authorized to contract with private parties to operate its facilities, but these private contractors are subject to the direction and supervision of the DOE. See 42 U. S. C. §2061(b); H. R. Rep. No. 2181, 83d Cong., 2d Sess., 14 (1954) (“In connection with its own production facilities, . . . the Commission is permitted to have the actual operation carried on by other persons under contract to it and under its direction and control”). This federal control over the production of nuclear material is an important aspect of federal nuclear energy policy. See 42 U. S. C. § 2013(c).

       Appellees and amici argue that Hancock should be read as applying only to situations in which the state regulation may act to prohibit the operation of the federally owned facility. Although Hancock involved a state regulation requiring an operating permit, the central issue presented was the power of the State to enforce its emissions regulations. See Hancock v. Train, 426 U. S., at 181. Under the Supremacy Clause, we discern no important difference between the authority to order compliance with state regulations and the authority to require a permit prior to operating a facility. In both settings the State is claiming the authority to dictate the manner in which the federal function is carried out.

       Although the language and history of § 290 indicate that it is addressed to federal enclaves, areas over which the United States has assumed exclusive jurisdiction under U. S. Const., Art. I, §8, cl. 17, see S. Rep. No. 2294, 74th Cong., 2d Sess. (1936), both appellant and the Solicitor General concede, and we agree, that it authorizes the application of workers’ compensation laws to federal facilities like the Portsmouth plant that are not federal enclaves.

       There is no doubt that the supplemental award provision is an integral part of the Ohio workers’ compensation statute. The provision was enacted in 1923 as an amendment to the existing workers’ compensation scheme. The amendment abolished the right to bring an action at law when the employer failed to comply with specific safety requirements and substituted the additional percentage award in the event of such a failure. State ex rel. Bailey v. Krise, 18 Ohio St. 2d 191, 195-197, 249 N. E. 2d 55, 58-59 (1969).

       See 1925 Ariz. Sess. Laws, ch. 83, § 65 (option to sue if injury from employer’s “wilful misconduct”); 1917 Cal. Stats., ch. 586, § 6(b) (50% increase in compensation, not to exceed $2,500, if injury caused by serious and willful misconduct of employer); 1916 Ky. Acts, ch. 33, §§ 3, 29 (option to sue for intentional injury and 15% increase for intentional failure to comply with statute); 1911 Mass. Acts, ch. 751, pt. 2, § 3 (100% increase if injury caused by employer’s serious and willful misconduct); 1925 Mo. Laws, § 3 (15% increase for failure to comply with any statute); 1929 N. M. Laws, ch. 113, § 7 (50% increase if employer fails to provide safety devices required by law); 1929 N. C. Sess. Laws, ch. 120, § 13 (10% increase for willful failure to comply with any statutory requirement); Ohio Const., Art. 2, § 35 (15% to 50% increase for violation of specific safety requirement); 1921 Ore. Laws, ch. 311, § 6 (option to sue for intentional injury by employer); 1936 S. C. Acts, No. 610, § 13 (10% increase for willful failure to comply with statute); 1917 Tex. Gen. Laws, ch. 103, § 5 (option to sue for “willful act or omission” or “gross negligence” of employer); 1921 Utah Laws, eh. 67, § 1 (15% increase for willful failure to comply with any statute); 1911 Wash. Laws, ch. 74, § 6 (option to sue for intentional injury); 1913 W. Va. Acts, ch. 10, §28 (option to sue for intentional injury); 1915 Wis. Laws, ch. 378, § l{h) (15% increase for violation of statute); see also 2A A. Larson, Law of Workmen’s Compensation §69.10 (1987).

       See 1916 Ky. Acts, ch. 33, § 29; 1925 Mo. Laws § 3; 1929 N. M. Laws, ch. 113, § 7; 1929 N. C. Sess. Laws, ch. 120, § 13; Ohio Const., Art. II, §35; 1936 S. C. Acts, No. 610, § 13; 1921 Utah Laws, ch. 67, § 1; 1915 Wis. Laws, ch. 378, § 1 (h). For the present versions of these laws, see Ky. Rev. Stat. §342.165 (1983); Mo. Rev. Stat. §287.120(4) (1986); N. M. Stat. Ann. §52-1-10(B) (1978); N. C. Gen. Stat. §97-12 (1985); Ohio Const., Art. II, §35; S. C. Code §42-9-70 (1976); Utah Code Ann. §35-1-12 (1953); Wis. Stat. § 102.57 (1985-1986).

       Prior to enacting § 290, Congress had authorized recovery of damages under state tort law by persons injured or killed on federal enclaves. See ch. 15, 45 Stat. 54, 16 U. S. C. § 457. Thus, at the time § 290 was enacted, Congress already had evinced a willingness to have state law exert incidental regulatory pressures on federal facilities.

       Appellant also argues that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq. (1982 ed. and Supp. IV), and the DOE’s health and safety regulations promulgated under the 1954 Act, pre-empt the award of additional compensation based on state health and safety regulations. Nothing in the 1954 Act, however, expresses an intent to repeal § 290 as applied to nuclear production facilities, nor can we read the 1954 Act as implicitly repealing § 290 because the two are not inconsistent. Section 290 is therefore as effective an authorization to apply state workers’ compensation laws after the passage of the 1954 Act as before.

       The Court recognizes, ante, at 180-181, and I agree, that under our precedents the facility here, which is federally owned but is operated by a private party under contract with the Federal Government, must be treated as a federal instrumentality for the purpose of applying the Supremacy Clause. Hancock v. Train, 426 U. S. 167, 174, n. 23 (1976).

       If this point is thought to matter, however, it is worth noting that Ohio’s penalty scheme allows for larger money payments than does any other State. 2A A. Larson, Law of Workmen’s Compensation §69.10 (1987). The penalty award at issue in this case would amount to somewhere between $1,328 and $4,429. Brief for Appellee Miller 3, n. 4.


author: Justice Scalia

text:
    BUDINICH v. BECTON DICKINSON & CO.
    No. 87-283.
    Argued March 21, 1988
    Decided May 23, 1988

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

      Thomas D. Frank argued the cause and filed a brief for petitioner.

      Terre Lee Rushton argued the cause for respondent. With her on the brief was Donald R. Ware.

   Justice Scalia

delivered the opinion of the Court.

Petitioner brought this action in Colorado state court to recover employment compensation allegedly due. Respondent removed the case to the United States District Court for the District of Colorado on the basis of diversity of citizenship. 28 U. S. C. §§ 1332, 1441. A jury awarded petitioner a verdict of $5,000 (considerably less than had been sought), and judgment was entered on March 26, 1984. Petitioner timely filed new-trial motions, challenging various rulings by the District Court, and a motion for attorney’s fees. (Colorado law provides that in a suit to collect compensation due from employment “the judgment. . . shall include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action.” Colo. Rev. Stat. 8-4-114 (1986).) On May 14, 1984, the District Court denied the new-trial motions, found that petitioner was entitled to attorney’s fees, and requested further briefing and documentation before determining their amount. The District Court issued its final order concerning the attorney’s fees on August 1, 1984. On August 29, petitioner filed notice of appeal to the Court of Appeals for the Tenth Circuit, covering all the District Court’s post-trial orders.

Respondent filed a motion to dismiss the appeal, arguing that the judgment was final and immediately appealable when the order denying the new-trial motions was entered May 14, 1984, and that the notice of appeal was not filed within 30 days of that order as required by Federal Rules of Appellate Procedure 4(a)(1) and (4). The Court of Appeals granted the motion to dismiss as to all issues except the award of attorney’s fees, which it affirmed. We granted certiorari, 484 U. S. 895 (1987), to resolve a conflict in the Courts of Appeals. Compare, e. g., Holmes v. J. Ray McDermott & Co., 682 F. 2d 1143, 1146 (CA5 1982), cert. denied, 459 U. S. 1107 (1983), with, e. g., International Assn. of Bridge, Structural, Ornamental, and Reinforcing Ironworkers’ Local Union 75 v. Madison Industries, Inc., 733 F. 2d 656, 658 (CA9 1984).

It is common ground in this case that if the District Court’s decision on the merits was appealable before its determination of attorney’s fees, then the merits appeal was untimely. See Fed. Rules App. Proc. 4(a)(1), (4), (6); Fed. Rules Civ. Proc. 54(a), 58. Petitioner contends that Colorado law governs this question and that “[u]nder Colorado law a claim is not final and appealable until attorneys fees are fully determined.” Brief for Petitioner 13. We do not agree that Colorado law governs.

Although state law generally supplies the rules of decision in federal diversity cases, see 28 U. S. C. § 1652; Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), it does not control the resolution of issues governed by federal statute, see U. S. Const., Art. VI, cl. 2 (Supremacy Clause); 28 U. S. C. § 1652; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 404-405 (1967). Under 28 U. S. C. § 1291, “all final decisions of the district courts” are appealable to the courts of appeals. In using the phrase “final decisions” Congress obviously did not mean to borrow or incorporate state law. “Final decisions” is not a term like “property,” which naturally suggests a reference to state-law concepts, cf. Board of Regents v. Roth, 408 U. S. 564, 577 (1972); and the context of its use in § 1291 makes such a reference doubly implausible, since that provision applies to all federal litigation and not just diversity cases. Nor is it possible to accept petitioner’s contention that §1291 does not apply to diversity cases because that would violate the Tenth Amendment to the Constitution. We have held that enactments “rationally capable of classification” as procedural rules are necessary and proper for carrying into execution the power to establish federal courts vested in Congress by Article III, § 1. Hanna v. Plumer, 380 U. S. 460, 472 (1965); see also Burlington Northern R. Co. v. Woods, 480 U. S. 1, 5, and n. 3 (1987). A statute mandating when an appeal may be taken from one federal court to another certainly meets this test. Cf. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949) (treating appealability as an issue of federal law in a case brought under diversity jurisdiction).

The question before us, therefore, is whether a decision on the merits is a “final decision” as a matter of federal law under § 1291 when the recoverability or amount of attorney’s fees for the litigation remains to be determined. “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execúte the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945). A question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter.the order or moot or revise decisions embodied in the order. See, e. g., Brown Shoe Co. v. United States, 370 U. S. 294, 308-309 (1962); Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 513-516 (1950). We have all but held that an attorney’s fees determination fits this description. In White v. New Hampshire Dept. of Employment Security, 455 U. S. 445 (1982), we held that a request for attorney’s fees under 42 U. S. C. § 1988 is not a motion “to alter or amend the judgment” within the meaning of Federal Rule of Civil Procedure 59(e) because it does not seek “reconsideration of matters properly encompassed in a decision on the merits.” 455 U. S., at 451. This holding was based on our conclusion that “a request for attorney’s fees under § 1988 raises legal issues collateral to” and “separate from” the decision on the merits. Id., at 451-452. We went so far as to observe in dicta that “[t]he collateral character of the fee issue establishes that an outstanding fee question does not bar recognition of a merits judgment as ‘final’ and ‘appealable.’” Id., at 452-453, n. 14. See also Sprague v. Ticonic National Bank, 307 U. S. 161, 170 (1939) (observing that a petition for attorney’s fees in equity is “an independent proceeding supplemental to the original proceeding and not a request for a modification of the original decree”).

The foregoing discussion is ultimately question-begging, however, since it assumes that the order to which the fee issue was collateral was an order ending litigation on the merits. If one were to regard the demand for attorney’s fees as itself part of the merits, the analysis would not apply. The merits would then not have been concluded, and § 1291 finality would not exist. See Liberty Mutual Insurance Co. v. Wetzel, 424 U. S. 737, 740-742 (1976). As a general matter, at least, we think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action. At common law, attorney’s fees were regarded as an element of “costs” awarded to the prevailing party, see 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil §2665 (1983), which are not generally treated as part of the merits judgment, cf. Fed. Rule Civ. Proc. 58 (“Entry of the judgment shall not be delayed for the taxing of costs”). Many federal statutes providing for attorney’s fees continue to specify that they are to be taxed and collected as “costs,” see Marek v. Chesny, 473 U. S. 1, 43-48 (1985) (Brennan, J., dissenting) (citing 63 such statutes) — as does, in fact, the Colorado statute at issue here.

Petitioner contends, however, that the general status of attorney’s fees for § 1291 purposes must be altered when the statutory or decisional law authorizing them makes plain (as he asserts Colorado law does) that they are to be part of the merits judgment. This proposition is not without some support. Some Courts of Appeals have held that the statutes creating liability for attorney’s fees can cause them to be part of the merits relief for purposes of §1291. See, e. g., Holmes v. J. Ray McDermott & Co., 682 F. 2d, at 1146; McQurter v. Atlanta, 724 F. 2d 881, 882 ,(CA11 1984) (per curiam). This Court itself implicitly acknowledged the possibility of such an approach in Boeing Co. v. Van Gemert, 444 U. S. 472 (1980), where, in holding that a judgment on the merits was final and immediately appealable apart from the question of attorney’s fees, we expressly distinguished cases in which the plaintiff had specifically requested attorney’s fees as part of the prayer in his complaint. Id., at 479-480, n. 5. Now that we are squarely confronted with the question, however, we conclude that the § 1291 effect of an unresolved issue of attorney’s fees for the litigation at hand should not turn upon the characterization of those fees by the statute or decisional law that authorizes them.

We have said elsewhere that “[t]he considerations that determine finality are not abstractions but have reference to very real interests — not merely those of the immediate parties, but, more particularly, those that pertain to the smooth functioning of our judicial system.” Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 69 (1948). Indeed, in the context of the finality provision governing appealability of matters from state courts to this Court, 28 U. S. C. § 1257, we have been willing in effect to split the “merits,” regarding a claim for an accounting to be sufficiently “dissociated” from a related claim for delivery of physical property that “[i]n effect, such a controversy is a multiple litigation allowing review of the adjudication which is concluded because it is independent of, and unaffected by, another litigation with which it happens to be entangled.” Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 126 (1945). This practical approach to the matter suggests that what is of importance here is not preservation of conceptual consistency in the status of a particular fee authorization as “merits” or “nonmerits,” but rather preservation of operational consistency and predictability in the overall application of § 1291. This requires, we think, a uniform rule that an unresolved issue of attorney’s fees for the litigation in. question does not prevent judgment on the merits from being final.

For all practical purposes an appeal of merits-without-attorney’s-fees when there is a statute deeming the attorney’s fees to be part of the merits is no more harmful to the trial process than an appeal of merits-without-attorney’s-fees when there is no such statute. That “deeming” does not render the appeal more disruptive of ongoing proceedings, more likely to eliminate a trial judge’s opportunity for reconsideration, more susceptible to being mooted by settlement, or in any way (except nominally) a more piecemeal enterprise. In short, no interest pertinent to § 1291 is served by according different treatment to attorney’s fees deemed part of the merits recovery; and a significant interest is disserved. The time of appealability, having jurisdictional consequences, should above all be clear. We are not inclined to adopt a disposition that requires the merits or nonmerits status of each attorney’s fee provision to be clearly established before the time to appeal can be clearly known. Courts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a “final decision” for purposes of §1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.

Finally, petitioner argues that even if the Court of Appeals properly decided the question of appealability, the decision constitutes a significant change in the law and therefore should only be applied prospectively.. Regardless of whether today’s decision works a change, our cases hold that “[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only.” Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 379-380 (1981). Since the Court of Appeals properly held petitioner’s notice of appeal from the decision on the merits to be untimely, and since the taking of an appeal within the prescribed time is mandatory and jurisdictional, see Fed. Rules App. Proc. 2, 3(a), 4(a)(1), 26(b); United States v. Robinson, 361 U. S. 220, 229 (1960); Farley Transportation Co. v. Santa Fe Trail Transportation Co., 778 F. 2d 1365, 1368-1370 (CA9 1985), the Court of Appeals was without jurisdiction to review the decision on the merits.

* * *

The Tenth Circuit correctly concluded that federal law governed the question of appealability and that petitioner’s judgment on the merits was final and appealable when entered. Accordingly, its judgment is

Affirmed.