author:
Justice Brennan Chief Justice Burger,
      Justice Blackmun,

text:
    WARDAIR CANADA INC. v. FLORIDA DEPARTMENT OF REVENUE
    No. 84-902.
    Argued March 31, 1986
    Decided June 18, 1986

      Brennan, J., delivered the opinion of the Court, in which White, Marshall, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in part and concurring in the judgment, post, p. 13. Blackmun, J., filed a dissenting opinion, post, p. 18.

      Walter D. Hansen argued the cause and filed briefs for appellant.

      Albert G. Lauber, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Deputy Solicitor General Wallace, Abraham D. Sofaer, and Jim J. Marquez.

      Joseph C. Mellichamp III, Assistant Attorney General of Florida, argued the cause for appellee. With him on the briefs were Jim Smith, Attorney General, Mitchell D. Franks, William Townsend, and Stephen Keller.

        Robert D. Papkin filed a brief for Aer Lingus et al. as amici curiae urging reversal.

        Benna Ruth Solomon and H. Bartow Farr III filed a brief for the National Governors’ Association et al. as amici curiae urging affirmance.

        Thomas W. Lager and Morton H. Silver filed a brief for Air Jamaica Ltd. et al. as amici curiae.

   Justice Brennan

delivered the opinion of the Court.

Appellant Wardair Canada Inc., a Canadian airline that operates charter flights to and from the United States, maintains in this action that the Commerce Clause of the Constitution precludes Florida from applying to it a tax on aviation fuel purchased in that State. Wardair also asserts that the Florida tax must fall because it violates a “clear unequivocal directive of Congress,” allegedly implicit in the Federal Aviation Act, 49 U. S. C. App. § 1301 et seq. (1982 ed. and Supp. II), that the Federal Government has exclusive regulatory power over foreign air commerce. Brief for Appellant v, 15.

We disagree with appellant’s view and analysis of the operation of the Commerce Clause, and find that Congress has not acted to pre-empt state taxes such as that imposed by Florida. Accordingly, we affirm the judgment of the Supreme Court of Florida upholding the tax.

I

Florida has for many years taxed the sale of fuel to common carriers, including airlines, within the State. Prior to April 1,1983, the tax was prorated on a mileage basis, so that a carrier was liable for only the portion of the otherwise payable tax that was equal to the ratio of its Florida mileage to its worldwide mileage for the previous fiscal year. Fla. Stat. § 212.08 (4) (1975). Effective April 1,1983, the Florida law was amended to repeal the mileage proration formula for airlines, and the fuel tax was established at a rate of 5% on a deemed price of $1,148 per gallon. Fla. Stat. §212.08 (4)(a)(2) (1985). Under the amended law, an airline was liable for the full amount of the fuel tax whether that fuel was used to fly within or without the State, and regardless of whether the airline engaged in a substantial or a nominal amount of business within the State. The effect of this amendment was, of course, to increase substantially the tax liability of airlines, such as foreign airlines, who fly largely outside of Florida, and who had, under the old scheme, paid little Florida tax on fuel.

Shortly after the new law was enacted, appellant filed suit in state court attacking its validity insofar as it authorized the assessment and collection of a tax on fuel used by foreign airlines exclusively in foreign commerce. Wardair argued, among other things, that the law was unconstitutional under the Commerce Clause and that it was inconsistent with the Nonscheduled Air Services Agreement, May 8, 1974, United States-Canada, Art. XII, 25 U. S. T. 787, T. I. A. S. No. 7826 (U. S.-Canadian Agreement or Agreement), a bilateral agreement between the Governments of Canada and the United States regulating air charter service between the two countries. Wardair’s case was consolidated for trial with a similar suit brought by a number of other foreign airlines.

In a separate order addressing only Wardair’s claims, the trial court rejected the Commerce Clause arguments but found that the U. S.-Canadian Agreement expressed a “federal policy” to exempt foreign airlines from fuel taxes. The court further found that this “policy” precluded the individual States from acting in this area and thus preventing the United States from “speaking with one voice” with respect to foreign commerce. In reaching this conclusion, the court relied largely on our decision in Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979). The court granted appellant a permanent injunction against the Florida Department of Revenue from assessing and collecting the fuel tax from Wardair.

The case was certified to the Supreme Court of Florida, which reversed, in part, the trial court. 455 So. 2d 326 (1984). The Supreme Court first noted that the U. S.Canadian Agreement by its terms exempted carriers only from national, as opposed to state or local (or, in the case of Canada, provincial) excise taxes, inspection fees, and other charges, and thus held that the Agreement did not pre-empt state sales taxes. Nor was the court persuaded that the Florida tax was invalid under the Foreign Commerce Clause. The court again referred to the fact that the Agreement exempted only national taxes, and “presume[d] this has been done intentionally.” Id., at 329. Having determined that the Federal Government had, in effect, itself elected not to prohibit the States from taxing aviation fuel, the court rejected the contention that the state tax “prevents our federal government from speaking with one voice,” ibid., and thus distinguished Japan Line. We noted probable jurisdiction, 474 U. S. 943 (1984), and now affirm.

■I

Wardair suggests that by enacting the Federal Aviation Act (Act), Congress “left no room for local government participation” with respect to foreign air travel. Brief for Appellant 39. Appellant does not expressly label this a preemption argument; rather, it relies on metaphor and tells us that “in the field of foreign air commerce it is the Federal Government that calls the tune. It is the Federal Government that is the conductor of the music, deciding how it is to be played and who are the players.” Id., at 44. We assume that appellant intends, by this metaphor, to persuade us that Congress has determined to “occupy the field” of international aviation, and thus to pre-empt all state regulation. The argument is without merit.

It is of course true, as appellant notes, that Congress has, through the Act, regulated aviation extensively. The agencies charged by Congress with regulatory responsibility over foreign air travel exercise power, as appellant observes, over licensing, route services, rates and fares, tariffs, safety, and other aspects of air travel. However, state law is not preempted whenever there is any federal regulation of an activity or industry or area of law. The Supremacy Clause, among other things, confirms that when Congress legislates within the scope of its constitutionally granted powers, that legislation may displace state law, and this Court has throughout the years employed various verbal formulations in identifying numerous varieties of pre-emption. See, e. g., Louisiana Public Service Comm’n v. FCC, 476 U. S. 355, 368-369 (1986). But we have consistently emphasized that the first and fundamental inquiry in any pre-emption analysis is whether Congress intended to displace state law, and where a congressional statute does not expressly declare that state law is to be pre-empted, and where there is no actual conflict between what federal law and state law prescribe, we have required that there be evidence of a congressional intent to pre-empt the specific field covered by the state law. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190 (1983); Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984). In the present case, not only is there no indication that Congress wished to preclude state sales taxation of airline fuel, but, to the contrary, the Act expressly permits States to impose such taxes. Section 1113 of the Act, as added, 87 Stat. 90, and as amended, 49 U. S. C. App. § 1513, addresses the issue of “State taxation of air commerce,” detailing in § 1113(a) the kinds of taxes which are prohibited and in § 1113(b) those which are permissible. Among the permissible taxes are “sales or use taxes on the sale of goods or services.” It is, of course, plausible that Congress never considered whether States should be permitted to impose sales taxes on foreign, as opposed to domestic, carriers, and therefore we do not rely on the existence of this section to answer the Commerce Clause issue raised here by appellant and considered by us infra. However, this section of the Act does provide the complete response to appellant’s pre-emption argument. For what § 1113(b) shows is that, to the degree that Congress considered the power of the States to tax air travel, it expressly and unequivocally permitted the States to exercise that authority. In other words, rather than prohibit state regulation in the area, Congress invited it. This is not the stuff of pre-emption.

Ill

In cases involving the so-called dormant Commerce Clause, both interstate and foreign, the Federal Government has not affirmatively acted, and it is the responsibility of the judiciary to determine whether action taken by state or local authorities unduly threatens the values the Commerce Clause was intended to serve. See Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945). As we have previously observed: “The few simple words of the Commerce Clause . . . reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U. S. 322, 325-326 (1979). In recognition of the importance of this conviction, we have acknowledged the self-executing nature of the Commerce Clause and held on countless occasions that, even in the absence of specific action taken by the Federal Government to disapprove of state regulation implicating interstate or foreign commerce, state regulation that is contrary to the constitutional principle of ensuring that the conduct of individual States does not work to the detriment of the Nation as a whole, and thus ultimately to all of the States, may be invalid under the un-exercised Commerce Clause. See H. P. Hood & Sons, Inc. v. DuMond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, supra. In the unique context of foreign commerce, we have alluded to the special need for federal uniformity: "'In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power.’ Board of Trustees v. United States, 289 U. S. 48, 59 (1933),’” Japan Line, 441 U. S., at 448. As in the context of cases alleging violations of the dormant Interstate Commerce Clause, the concern in these Foreign Commerce Clause cases is not with an actual conflict between state and federal law, but rather with the policy of uniformity, embodied in the Commerce Clause, which presumptively prevails when the Federal Government has remained silent.

When a state tax is challenged as violative of the dormant Interstate Commerce Clause, we have asked four questions: is the tax applied to an activity with a substantial nexus with the taxing State; is the tax fairly apportioned; does the tax discriminate against interstate commerce; and is the tax fairly related to the services provided by the State. Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977). In Japan Line, supra, we noted that when the state tax allegedly interferes with the Federal Government’s authority to regulate foreign commerce, two additional questions must be asked: “first, whether the tax, notwithstanding apportionment, creates a substantial risk of international multiple taxation, and, second, whether the tax prevents the Federal Government from speaking with one voice when regulating commercial relations with foreign governments.” Id., at 451.

In the present case, appellant concedes that Florida’s tax satisfies the four-part test set out in Complete Auto. In other words, it is not disputed that if this ease did not involve foreign commerce, the Florida tax on the sale of aviation fuel would not contravene the Commerce Clause. Appellant also recognizes that there is no threat of multiple international taxation in this case, since the tax is imposed only upon the sale of fuel, a discrete transaction which occurs within one national jurisdiction only. Appellant and the United States as amicus curiae thus rely entirely on the final factor identified in Japan Line, and argue that the Florida tax violates the Foreign Commerce Clause because it threatens the ability of the Federal Government to “speak with one voice.” Specifically, they urge that there exists a federal policy of reciprocal tax exemptions for aircraft, equipment, and supplies, including aviation fuel, that constitute the instrumentalities of international air traffic, and that this “policy” represents the statement that the “one voice” of the Federal Government wishes to make and which is threatened by the state law. We disagree. In our view, the evidence relied upon by appellant and the United States not only fails to reveal any such federal policy, but, even more fundamentally, shows also that in the context of this case we do not confront federal governmental silence of the sort that triggers dormant Commerce Clause analysis. On the contrary, the international agreements cited demonstrate that the Federal Government has affirmatively acted, rather than remained silent, with respect to the power of the States to tax aviation fuel, and thus that the case does not call for dormant Commerce Clause analysis at all. Moreover, in our view the actions taken by the Federal Government accept the authority of States to tax as Florida has here, and lend further support to the position and views advanced by appellee and relied on by the Florida Supreme Court in rejecting Wardair’s arguments.

Appellant and the United States maintain that the policy of tax exemption for the instrumentalities of international air traffic is manifested by, among other things, (1) the Chicago Convention on International Civil Aviation, opened for signature, Dec. 7, 1944, 61 Stat. 1180 (Chicago Convention), an international convention to which the United States and 156 other nations, including Canada, are parties; (2) a Resolution (Resolution) adopted November 14, 1966, by the International Civil Aviation Organization (ICAO), an organization of which the United States is a member by virtue of being a party to the Chicago Convention; (3) more than 70 bilateral agreements, including the U. S.-Canadian Agreement, into which the United States has entered with various foreign countries dealing with international aviation. But what these documents show is that while there appears to be an international aspiration on the one hand to eliminate all impediments to foreign air travel — including taxation of fuel— the law as it presently stands acquiesces in taxation of the sale of that fuel by political subdivisions of countries. Thus, Article 24(a) of the Chicago Convention by its terms precludes the imposition of local taxes on fuel only when the fuel is “on board an aircraft... on arrival . . . and retained on board on leaving” a contracting party; it does not prohibit taxation of fuel purchased in that country. 61 Stat. 1186. We agree with amici National Governors’ Association et al. that the negative implications of this provision support recognizing Florida’s power to tax; certainly, the provision demonstrates the international community’s awareness of the problem of state and local taxation of international air travel, specifically aviation fuel, and represents a decision by the parties to that Convention to address the problem by curtailing and limiting only some of the localities’ power to tax, while implicitly preserving other aspects of that authority.

Nor does the Resolution provide support for appellant’s contention that there is a clear national policy of exempting aviation fuel from state sales taxes. While the Resolution undeniably does endorse an international scheme whereby fuel would be exempt “ ‘from all customs and other duties,’ ” which it defines as including “‘import, export, excise, sales, consumption and internal duties and taxes of all kinds levied ... by any taxing authority within a State,’ ” Brief for United States as Amicus Curiae 12 (Sept. 17,1985), quoting Resolution pp. 3, 4 (emphasis deleted), the Resolution is formally merely the work product of an international organization of which the United States is a member; it has not been specifically endorsed, let alone signed, entered into, agreed upon, approved, or passed by either the Executive or Legislative Branch of the Federal Government. In other words, no action has been taken to give the Resolution the force of law. While it is not argued by either appellant or by the United States as amicus that this Resolution in and of itself should operate to pre-empt state law, we also think it untenable to assert, as they do, that this Resolution represents a policy of the United States, as opposed to a policy of an organization of which the United States is one of many members.

Our reluctance in this regard is bolstered by the fact that the United States has, since the time that the Convention came into force, become a party to more than 70 bilateral aviation agreements, and in not one of these agreements has the United States agreed to deny the States the power asserted by Florida in this case. Most of these agreements explicitly commit the United States to refrain from imposing national taxes on aviation fuel used by airlines of the other contracting party, see Brief for United States as Amicus Curiae 14-17, 19, but as the United States concedes, “none of our bilateral aviation agreements explicitly interdicts state or local taxes on aviation fuel used by foreign airlines in international traffic.” Id., at 17. Most strikingly as it relates to the case before us, the U. S.-Canadian Agreement itself limits the tax exemption to be afforded to foreign air carriers to “national duties and charges.” App. A-58. Taxation by political subdivisions of either the United States or Canada are not mentioned, an omission which must be understood as representing a policy choice by the contracting parties, especially in light of the fact that the Resolution addressed this concern eight years before the United States and Canada entered into the Agreement. We note that throughout the time that the U. S.-Canadian Agreement has been in force, some American States, as well as some Canadian Provinces, have imposed taxes within their jurisdictions on aviation fuel used by Canadian and American carriers respectively in international travel. Furthermore, there was not, until recently, any challenge to the localities’ legal authority to do so. Although not dispositive, this course of conduct suggests that the parties to the Agreement and those most immediately affected by it understood it to permit this sort of taxation.

What all of this makes abundantly clear is that the Federal Government has not remained silent with regard to the question whether States should have the power to impose taxes on aviation fuel used by foreign carriers in international travel. By negative implication arising out of more than 70 agreements entered into since the Chicago Convention, the United States has at least acquiesced in state taxation of fuel used by foreign carriers in international travel. Again, in the U. S.-Canadian Agreement only “national” charges are barred, and we presume that drafters from two federalist nations understood this as representing a choice not to preclude local taxation. It would turn dormant Commerce Clause analysis entirely upside down to apply it where the Federal Government has acted, and to apply it in such a way as to reverse the policy that the Federal Government has elected to follow. For the dormant Commerce Clause, in both its interstate and foreign incarnations, only operates where the Federal Government has not spoken to ensure that the essential attributes of nationhood will not be jeopardized by States acting as independent economic actors. However, the Federal Government is entitled in its wisdom to act to permit the States varying degrees of regulatory authority. In our view, the facts presented by this case show that the Federal Government has affirmatively decided to permit the States to impose these sales taxes on aviation fuel. Accordingly, there is no need for us to consider, and nothing in this opinion should be understood to address, whether, in the absence of these international agreements, the Foreign Commerce Clause would invalidate Florida’s tax.

In Japan Line, 441 U. S., at 451, we explained that Foreign Commerce Clause analysis requires that a court ask whether a state tax “prevents the Federal Government from ‘speaking with one voice when regulating commercial relations with foreign governments.’” But we never suggested in that case or any other that the Foreign Commerce Clause insists that the Federal Government speak with any particular voice.

In light of the above, the judgment of the Supreme Court of Florida is

Affirmed.

Chief Justice Burger,

concurring in part and concurring in the judgment.

The Court acknowledges in its discussion in Part II concerning the scope of the Federal Aviation Act that “not only is there no indication that Congress wished to preclude state sales taxation of airline fuel, but, to the contrary, the Act expressly permits States to impose such taxes.” Ante, at 6. That being so I see no reason for the discussion in Part III.

While 49 U. S. C. App. § 1513(a) describes a number of state taxes which are prohibited, § 1513(b) expressly permits state “sales or use taxes on the sale of goods or services.” The fuel tax challenged here is plainly a “sales or use ta[x] on the sale of goods” within the language of § 1513(b).

Remarkably, the Court nevertheless refuses to “rely on the existence of this section to answer the Commerce Clause issue raised here” because it believes it is “plausible that Congress never considered whether States should be permitted to impose sales taxes on foreign, as opposed to domestic, carriers.” Ante, at 7 (emphasis added). Accordingly, the Court continues with an extended discussion of “the so-called dormant Commerce Clause,” which applies to cases involving areas where “the Federal Government has not affirmatively acted.” Ibid. The plain language of § 1513(b) demonstrates, however, that there is nothing “dormant” here.

The conclusion the Court reaches in Part II is illuminated by the Court’s curious failure to even mention any of the extensive legislative history or this Court’s recent precedent concerning the enactment of § 1513, which followed our decision in Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972). In that case the Court upheld a $l-per-passenger “head tax” on all passengers boarding airplanes at the Evansville airport, after rejecting a Commerce Clause attack because the tax did not discriminate between interstate and intrastate commerce.

Congress reacted immediately to our decision by holding hearings on local taxation of air transportation. See Hearings on S. 2397 et al. before the Subcommittee on Aviation of the Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (1972) (hereafter Senate Hearings); Hearings on H. R. 2337 et al. before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 92d Cong., 2d Sess. (1972) (hereafter House Hearings). The result of these hearings was the enactment of §7(a) of the Airport Development Acceleration Act of 1973, see Pub. L. 93-44, §7(a), 87 Stat. 90, which added § 1113 to the Federal Aviation Act, and which is now codified, as amended, at 49 U. S. C. App. § 1513.

We subsequently addressed the scope of § 1513(a)’s prohibition when confronted with Hawaii’s state tax on the gross income of airlines operating within that State. See Aloha Airlines, Inc. v. Director of Taxation, 464 U. S. 7 (1983). Reviewing the legislative history, the Court pointed out that § 1513 was enacted out of congressional concern that “the proliferation of local taxes burdened interstate air transportation.” Id., at 9 (citing S. Rep. No. 93-12, pp. 17, 20-21 (1973), and H. R. Rep. No. 93-157, pp. 4-5 (1973)). We concluded unanimously that Hawaii’s tax was expressly preempted by the plain language of § 1513(a), 464 U. S., at 11, emphasizing that

“when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted.” Id., at 12 (footnote omitted).

In the course of our discussion of § 1513(a) we addressed the Hawaii Supreme Court’s “professed confusion over the ‘paradox’ between §1513(a)’s prohibition on certain state taxes on air transportation and §1513(b)’s reservation of the States’ primary sources of revenue, such as property taxes, net income taxes, franchise taxes, and sales or use taxes.” Id., at 12, n. 6. Our resolution of this “paradox” is enlightening:

“We find no paradox between § 1513(a) and § 1513(b). Section 1513(a) pre-empts a limited number of state taxes, including gross receipts taxes imposed on the sale of air transportation or the carriage of persons traveling in air commerce. Section 1513(b) clarifies Congress’ view that the States are still free to impose on airlines and air carriers ‘taxes other than those enumerated in subsection (a),’ such as property taxes, net income taxes, and franchise taxes. While neither the statute nor its legislative history explains exactly why Congress chose to distinguish between gross receipts taxes imposed on airlines and the taxes reserved in § 1513(b), the statute is quite clear that Congress chose to make the distinction, and the courts are obliged to honor this congressional choice.” Ibid.

Careful review of the legislative history indicates that it is not entirely silent as to why Congress chose to make this particular distinction. The Senate’s first proposal to limit state taxation would have prohibited any state tax— direct or indirect — on air transportation. S. 3611, 92d Cong., 2d Sess. (1972); see also H. R. 2337, 92d Cong., 1st Sess. (1971) (similar prohibition). The States, however, complained loudly at the hearings that this sweeping provision would prohibit even unobjectionable taxes such as landing fees, fuel taxes, and sales taxes on food provided to airline passengers. E. g., House Hearings, at 91 (statement of John A. Nammack, Executive Vice President, National Association of State Aviation Officials). This broad interpretation was supported by officials from the Civil Aeronautics Board and the Federal Aviation Administration, who objected to any such broad prohibition because it would deprive local governments of funds necessary for maintenance of airports. Senate Hearings, at 138 (statement of Whitney Gillilland, Vice Chairman, CAB); id., at 140-141 (statement of Ronald W. Pulling, Acting Associate Administrator for Plans, FAA). In reply, Members of Congress assured these officials that the prohibition was intended to apply only to “head taxes” and the like, and that some clarification of the bill’s intent would be in order. E. g., id., at 138, 151, 157 (statements of Sen. Cannon). See also House Hearings, at 99 (statement of Rep. Dingell); id., at 101 (statement of Rep. Harvey). The final bill enacting.§ 1513 therefore appears to be a compromise following careful consideration by Congress as to the permissible scope of state taxation in the area of air commerce.

Most relevant to the issue before us in this case is the fact that nowhere in that legislative history is there any indication that Congress intended to limit the applicability of § 1513(b) to state taxation of interstate air commerce while prohibiting taxation oí foreign air commerce. To the contrary, Congress was fully aware that the bill would cover foreign air commerce, since both the State Department and the Senate’s own Legislative Council advised Congress that “air commerce” as employed in the proposed bill encompassed foreign and overseas air commerce. See Senate Hearings, at 136 (letter of David M. Abshire, Department of State); id., at 207 (memorandum of Peter W. LeRoux, Senior Counsel, Office of Legislative Council). Moreover, Congress discussed the effect of foreign “head taxes” if similar local taxes were barred. House Hearings, at 35-37.

The language of the Act bears this out. Section 1513(a)’s prohibition refers to certain taxes “on persons traveling in air commerce ... or on the sale of air transportation.” The Act defines “air commerce” as including “interstate, overseas, or foreign air commerce.” 49 U. S. C. App. § 1301(4). Similarly, “air transportation” is defined as including “interstate, overseas, or foreign air transportation.” § 1301(10). Under the plain language of § 1513, therefore, the Florida tax — even in the area of foreign air commerce — is expressly authorized by Congress.

Just as we need not look beyond the plain language “when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce,” Aloha Airlines, 464 U. S., at 12 (emphasis added), we need not look beyond the plain language of a federal statute which unambiguously authorizes the States to impose a particular kind of tax. Section 1513(b) authorizes state sales taxes on goods used in air commerce. While Congress has not explained exactly why it made the distinction between taxes prohibited under § 1513(a) and those permitted under § 1513(b), “Congress chose to make the distinction, and the courts are obliged to honor this congressional choice.” 464 U. S., at 12, n. 6.

By refusing to decide this case solely on the express language of § 1513(b) and instead entering the cloudy waters of this Court’s “dormant Commerce Clause” doctrine, the Court fails to honor the choice already pointedly made by Congress following its extensive consideration of the problem of state taxation in this area.

Justice Blackmun,

dissenting.

In Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979), this Court recognized that the Commerce Clause commits to the exclusive authority of the Federal Government the regulation of those aspects of foreign commerce that by their very nature “necessitate a uniform national rule.” Id., at 449. In regulating commercial relations with foreign governments, “‘the Federal Government must speak with one voice.’” Ibid., quoting Michelin Tire Corp. v. Wages, 423 U. S. 276, 285 (1976). As a result, the Court in Japan Line held that the imposition of California’s ad valo-rem property tax on foreign-owned containers used exclusively in foreign commerce was unconstitutional. The tax imposed in this case by Florida on fuel is indistinguishable, for Commerce Clause purposes, from the -tax imposed by California on containers in Japan Line. Because a State’s taxation on fuel used in foreign commerce will prohibit the Federal Government from speaking with “one voice,” I believe that this application of Florida’s tax violates the Constitution.

The Court, however, finds Japan Line inapposite, asserting that “we do not confront federal governmental silence of the sort that triggers dormant Commerce Clause analysis.” Ante, at 9. To the Court, that the Federal Government has addressed some aspects of foreign aviation taxation, but has not expressly prohibited the imposition of state and local taxes, see ante, at 10-11, is a sufficient basis for upholding the tax at issue here. Apparently, the Court believes that once the Federal Government has spoken at all in an area, the Commerce Clause operates to permit States to act except if such action is expressly prohibited. But we have never permitted validation of state burdens on foreign commerce through this sort of implication.

For a state regulation to be removed from the reach of the dormant Commerce Clause, the intent of the Federal Government to permit state activity “must be unmistakably clear.” South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 91 (1984). And the “need for a consistent and coherent foreign policy, which is the exclusive responsibility of the Federal Government,” heightens the need for affirmative approval. Id., at 92, n. 7. The Court’s holding today is based not on the presence of this requisite “affirmative approval”; rather, the Court relies on a “negative implication arising out of more than 70 agreements” that indicate that “the United States has at least acquiesced” in the kind of tax imposed here (emphasis added). Ante, at 12. Whether or not these agreements suggest acquiescence is beside the point; what is clear is that the Federal Government has not provided the affirmative approval required to permit States to act.

The Government’s efforts in the international sphere reveal an overarching and coherent policy directed at the creation of reciprocal tax exemptions in the area of foreign aviation. The Nation’s aviation relations with foreign governments are implemented through a comprehensive network of treaties, bilateral executive agreements, informal arrangements, and federal statutes. Although these provisions stop short of explicitly banning state levies on aircraft fuel used in foreign travel, the indisputable pattern that emerges is one of a policy of reciprocal tax exemptions for instrumentalities of international commerce, like the containers in Japan Line and the fuel at issue here. The Government’s inability to date to achieve full international consent to reciprocal tax exclusions neither negates nor demonstrates the absence of federal policy; it simply means that the United States has not fully succeeded, as yet, in transforming its policy into law. Indeed, the “aspiration ... to eliminate all impediments to foreign air travel” (emphasis deleted), recognized by the Court, ante, at 10, is precisely the federal policy that renders the application of Florida’s tax to the fuel here unconstitutional.

The decision today leaves Florida and other States free to tax foreign aviation, and will hinder the United States in its efforts to attain reciprocal tax immunity with foreign governments. Florida’s action may well undermine reciprocity agreements since other countries may react to Florida’s tax with various retaliatory measures against United States carriers abroad, retaliation that “of necessity would be felt by the Nation as a whole.” Japan Line, 441 U. S., at 453. Florida’s actions may also hamper the United States’ position in negotiations designed to achieve the federal policy of reciprocity because the Nation cannot speak with “one voice.” In Japan Line, this Court made clear that a State, “by its unilateral act, cannot be permitted to place . . . impediments before this Nation’s conduct of its foreign relations and its foreign trade.” Ibid. Because the Court’s decision today permits just that, I respectfully dissent.

      The Constitution provides that “Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, el. 3.

       Florida has since substantially amended its statute which imposes taxes on aviation fuel. Those amendments, which became effective July 1, 1985, do not in any way bear on the present controversy, which concerns only appellant’s tax liability from April 1, 1983, to July 1, 1985.


source: Caselaw Access Project

author: Justice Blackmun Justice Stevens,

license: Public Domain

text:
    SCHIAVONE et al. v. FORTUNE, aka TIME, INC.
    No. 84-1839.
    Argued February 26, 1986
    Decided June 18, 1986

      Blackmun, J., delivered the opinion of the Court, in which BRENNAN, Marshall, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Burger, C. J., and White, J., joined, post, p. 32.

      Morris M. Schnitzer argued the cause for petitioners. With him on the briefs were Theodore W. Geiser and Thomas S. Cosma.

      Peter G. Banta argued the cause and filed a brief for respondent.
   Justice Blackmun

delivered the opinion of the Court.

This case primarily concerns Rule 15(c) of the Federal Rules of Civil Procedure and its application to a less-than-precise denomination of a defendant in complaints filed in federal court near the expiration of the period of limitations. Because of an apparent conflict among the Courts of Appeals, we granted certiorari. 474 U. S. 814 (1985).

I

The three petitioners instituted this diversity litigation on May 9, 1983, by filing their respective complaints in the United States District Court for the District of New Jersey. Each complaint alleged that the plaintiff was libeled in a cover story entitled “The Charges Against Reagan’s Labor Secretary,” which appeared in the May 31, 1982, issue of Fortune magazine. The caption of each complaint named “Fortune,” without embellishment, as the defendant. See App. 8a. In its paragraph 2, each complaint described Fortune as “a foreign corporation having its principal offices at Time and Life Building, Sixth Avenue and 50th Street, New York, New York 10020.” Id., at 9a. “Fortune,” however, is only a trademark and the name of an internal division of Time, Incorporated (Time), a New York corporation.

On May 20, petitioners’ counsel mailed the complaints to Time’s registered agent in New Jersey. They were received on May 23. The agent refused service because Time was not named as a defendant.

On July 18, 1983, each petitioner amended his complaint to name as the captioned defendant “Fortune, also known as Time, Incorporated,” and, in the body of the complaint, to refer to “Fortune, also known as Time, Incorporated,” as a New York corporation with a specified registered New Jersey agent. See id., at 25a, 26a. The amended complaints were served on Time by certified mail on July 21.

Time moved to dismiss the amended complaints. The District Court granted those motions. Id., at 96a, 98a, 100a. It ruled that the complaints, as amended, adequately named Time as a defendant, and therefore were not to be dismissed “for failure of capacity of defendant to be sued.” Supp. App. to Pet. for Cert. 18a. Under New Jersey law, however, see N. J. Stat. Ann. 2A:14-3 (West 1952), a libel action must be commenced within one year of the publication of the alleged libel. Supp. App. to Pet. for Cert. 18a. State law also provides that the “ ‘date upon which a substantial distribution occurs triggers the statute of limitations for any and all actions arising out of that publication,’” id., at 19a, quoting MacDonald v. Time, Inc., Civil No. 81-479 (DNJ Aug. 25, 1981). Supp. App. to Pet. for Cert. 19a. The court found it unnecessary, for purposes of the motion, to determine the precise date the statute of limitations had begun to run.

Although Time acknowledged that the original filings were within the limitations period, it took the position that it could not be named as a party after the period had expired. Time contended that a party must be substituted within the limitations period in order for the amendment to relate back to the original fifing date pursuant to Rule 15(c).

The District Court concluded that the amendments to the complaints did not relate back to the fifing of the original complaints because it had not been shown that Time received notice of the institution of the suits within the period provided by law for commencing an action against it. Supp. App. to Pet. for Cert. 23a. It therefore “with great reluctance” granted the motion to dismiss, noting that any dismissal of a claim based upon the statute of limitations “by its very nature is arbitrary.” Id., at 24a. The court also ruled that the “equities of this situation” did not demand that relief be afforded to petitioners. Ibid. The identity of the publisher of Fortune was readily ascertainable from the magazine itself. It rejected petitioners’ contention that Time deliberately misled them to believe that Fortune was a separate corporation. It observed that petitioners created the risk by filing their suits close to the end of the limitations period. Id., at 25a.

Petitioners moved for reconsideration. By letter opinion filed January 12, 1984, the court adhered to its prior ruling. App. to Brief in Opposition la.

On appeal to the United States Court of Appeals for the Third Circuit, the three actions were consolidated. That court affirmed the orders of the District Court. 750 F. 2d 15 (1984). It ruled that the New Jersey statute of limitations ran “on May 19, 1983, at the latest,” for a “substantial distribution” of the issue of May 31, 1982, had “occurred on May 19, 1982, at the latest.” Id., at 16. It regarded the language of Rule 15(c) as “clear and unequivocal.” 750 F. 2d, at 18. It also said: “While we are sympathetic to plaintiffs’ arguments, we agree with the defendant that it is not this court’s role to amend procedural rules in accordance with our own policy preferences.” Ibid. It further held that the period within which the defendant to be brought in must receive notice under Rule 15(c) does not include the time available for service of process.

HH 1 — 1

It is clear, from what has been noted above, that the three complaints as originally drawn were filed within the limitations period; that service was attempted only after that period had expired; and that the amendment of the complaints, and the service of the complaints as so amended, also necessarily took place after the expiration of the limitations period. The District Court and the Court of Appeals so found, and we have no reason to disagree. The parties themselves do not dispute these facts. Instead, their dispute centers on whether Time was sufficiently named as the defendant in the original complaints so that the service that was attempted after the 1-year period but within the time allowed for service was effective, and on whether, in any event, the amendment of the complaints related back to the original filing and accomplished the same result.

Petitioners argue that Rule 15(c)’s present form came into being by amendment in 1966 for the express purpose of allowing relation back of a change in the name or identity of a defendant when, although the limitations period for filing had run, the period allowed by Rule 4 for timely service had not yet expired. Brief for Petitioners 5. The Rule was effected, it is said, to ameliorate literal and rigid application of limitations periods to both claim and party amendments. It is urged that the Rules of Civil Procedure should be applied and construed to yield just determinations, that is, determinations on the merits, and that a procedural “double standard” that bars relation back for late notice to a new defendant when a like notice to the original defendant would be timely is unacceptable. Petitioners further argue that the original party named here and the party sought to be substituted had such commonality of interest that notice to one was in fact notice to the other. Therefore, it is said, where the intended defendant was misdesignated in form only, and knew or reasonably should have known that it was the true target and received the same notice it would have received had the form been flawless, “relation back should be a foregone conclusion.” Brief for Petitioners 6.

Respondent, of course, takes issue with this approach. It claims that the language of Rule 15(c) is clear and that proper notice of the institution of these actions was not received by it within the period of limitations. It asserts that the equities do not support petitioners’ position, and that the interpretation of Rule 15(c) urged by petitioners in effect would be an impermissible rewriting of the Rule by this Court.

f — H I — I I — I

As amended, Rule 1 of the Federal Rules of Civil Procedure states: “These rules . . . shall be construed to secure the just, speedy, and inexpensive determination of every action.” Rule 8(f) says: “All pleadings shall be so construed as to do substantial justice.” And Justice Black reminded us, more than 30 years ago, in connection with an order adopting revised Rules of this Court, that the “principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts.” 346 U. S. 946, 946 (1954).

This Court, too, in the early days of the federal civil procedure rules, when Rule 15(e), see n. 5, supra, consisted only of what is now its first sentence, announced that the spirit and inclination of the rules favored decisions on the merits, and rejected an approach that pleading is a game of skill in which one misstep may be decisive. Conley v. Gibson, 355 U. S. 41, 48 (1957). It also said that decisions on the merits are not to be avoided on the basis of “mere technicalities.” Foman v. Davis, 371 U. S. 178, 181 (1962).

Despite these worthy goals and loftily stated purposes, we conclude that the judgments of the Court of Appeals in the present cases were correct.

A

The defendant named in the caption of each of the original complaints was “Fortune,” and Fortune was described in the body of the complaint as “a foreign corporation” having principal offices in the Time and Life Building in New York City. It also was alleged that Fortune was engaged in the publication of a magazine of that name. Attached to the complaint were a copy of the magazine’s cover for its issue of May 31, 1982, an artist’s depiction of an alleged payoff, and the text of parts of the article about which petitioners complained. The focus, as pleaded, was on Fortune.

We cannot understand why, in litigation of this asserted magnitude, Time was not named specifically as the defendant in the caption and in the body of each complaint. This was not a situation where the ascertainment of the defendant’s identity was difficult for the plaintiffs. An examination of the magazine’s masthead clearly would have revealed the corporate entity responsible for the publication.

Petitioners nonetheless rely on Fortune’s status as a division of Time to argue that institution of an action purportedly against the former constituted notice of the action to the latter, as a related entity. Some Courts of Appeals have recognized an “identity-of-interest” exception under which an amendment that substitutes a party in a complaint after the limitations period has expired will relate back to the date of the filing of the original complaint. The Court of Appeals in this case rejected that approach. The object of the exception is to avoid the application of the statute of limitations when no prejudice would result to the party sought to be added.

Even if we were to adopt the identity-of-interest exception, and even if Fortune properly could be named as a defendant, we would be compelled to reject petitioners’ contention that the facts of this case fall within the exception. Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party. In this case, however, neither Fortune nor Time received notice of the filing until after the period of limitations had run. Thus, there was no proper notice to Fortune that could be imputed to Time. See Hernandez Jimenez v. Calero Toledo, 604 F. 2d 99, 102-103 (CA1 1979); Norton v. International Harvester Co., 627 F. 2d 18, 20-21 (CA7 1980).

B

The complaints as they were amended, of course, meet the identification standard. While the statement, “Fortune,. also known as Time, Incorporated, was and is a corporation of the state of New York,” is not a model of accuracy, it does focus on Time and sufficiently describes Time as the targeted defendant. The next question, then, is whether the amendment, made in July 1983, related back to the fifing on May 9, a date concededly within the period of the applicable New Jersey statute of limitations.

Central to the resolution of this issue is the language of Rule 15(c). See n. 5, supra. Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. We are not concerned here with the first factor, but we are concerned with the satisfaction of the remaining three.

The first intimation that Time had of the institution and maintenance of the three suits took place after May 19, 1983, the date the Court of Appeals said the statute ran “at the latest.” 750 F. 2d, at 16. Only on May 20 did petitioners’ counsel mail the complaints to Time’s registered agent in New Jersey. Only on May 23 were those complaints received by the registered agent, and then refused. Only on July 19 did each petitioner amend his complaint. And only on July 21 were the amended complaints served on Time.

It seems to us inevitably to follow that notice to Time and the necessary knowledge did not come into being “within the period provided by law for commencing the action against” Time, as is so clearly required by Rule 15(c). That occurred only after the expiration of the applicable 1-year period. This is fatal, then, to petitioners’ litigation.

We do not have before us a choice between a “liberal” approach toward Rule 15(c), on the one hand, and a “technical” interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says.

We are not inclined, either, to temper the plain meaning of the language by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint. Rule 4 deals only with process. Rule 3 concerns the “commencement” of a civil action. Under Rule 15(c), the emphasis is upon “the period provided by law for commencing the action against” the defendant. An action is commenced by the filing of a complaint and, so far as Time is concerned, no complaint against it was filed on or prior to May 19, 1983.

Any possible doubt about this should have been dispelled 20 years ago by the Advisory Committee’s 1966 Note about Rule 15(c). The Note specifically states that the Rule’s phrase “within the period provided by law for commencing the action” means “within the applicable limitations period”:

“An amendment changing the party against whom a claim is asserted relates back if the amendment satisfies the usual condition of Rule 15(c) of ‘arising out of the conduct ... set forth ... in the original pleading,’ and if, within the applicable limitations period, the party brought in by amendment, first, received such notice of the institution of the action — the notice need not be formal — that he would not be prejudiced in defending the action, and, second, knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party” (emphasis supplied). Advisory Committee’s Notes on Fed. Rule Civ. Proc. 15, 28 U. S. C. App., p. 551; 39 F. R. D. 83.

Although the Advisory Committee’s comments do not foreclose judicial consideration of the Rule’s validity and meaning, the construction given by the Committee is “of weight.” Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 444 (1946).

The commentators have accepted the literal meaning of the significant phrase in Rule 15(c) and have agreed with the Advisory Committee’s Note. See 3 J. Moore, Federal Practice § 15.15[4.-2], p. 15-225 (2d ed. 1985) (“the Rule demands a showing that, within the period of limitations, the new party . . .”); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1498, p. 250 (Supp. 1986) (“in order for an amendment adding a party to relate back under Rule 15(c) the party to be added must have received notice of the action before the statute of limitations has run”).

The linchpin is notice, and notice within the limitations period. Of course, there is an element of arbitrariness here, but that is a characteristic of any limitations period. And it is an arbitrariness imposed by the legislature and not by the judicial process. See Note: Federal Rule of Civil Procedure 15(c): Relation Back of Amendments, 57 Minn. L. Rev. 83, 85, n. 8 (1972).

The judgments of the Court of Appeals are affirmed.

It is so ordered.

Justice Stevens,

with whom The Chief Justice and Justice White join, dissenting.

Certain principles are undisputed. If petitioners had filed their suits alleging that Fortune magazine libeled them on precisely the same date; had added the magic words “also known as Time, Incorporated” to the word “Fortune”; and had done everthing else exactly the same, petitioners would be entitled to proceed with their legal actions. Because petitioners committed the “fatal” error, ante, at 30, of identifying the defendant by its name of publication rather than its name of incorporation, however, the Court finds that they fell through a trapdoor — despite the fact that the magazine publisher’s agent contemporaneously noted his understanding that the suits were directed against the magazine publisher (Time, Incorporated) fully as much as if petitioners had included the magic words.

In my view, the Court’s decision represents an aberrational — and, let us hope, isolated — return to the “sporting theory of justice” condemned by Roscoe Pound 80 years ago. The Court’s result is supported neither by the language nor purposes of the Federal Rules, or of Rule 15(c) in particular.

I

Before examining the language and the history of Rule 15(c), a preliminary comment on the facts is appropriate. In its May 31, 1982, issue, Fortune published the article in dispute. On May 9, 1983, petitioners filed their complaints. Since the New Jersey 1-year statute of limitations made it necessary to have the complaints filed by May 19, 1983, it is clear that the original complaints were filed 10 days ahead of that deadline.

Rule 4(j) of the Federal Rules of Civil Procedure also required that service of the summons and complaints be made within 120 days of the original filing — in other words, by September 6, 1983. The summons and the original complaints were mailed to Time, Incorporated’s registered agent on May 20, 1983, and received on May 23, 1983 — well within the 120-day deadline imposed by the Rule.

The caption of the original complaints identified the defendant only as “Fortune.” The description of the defendant in paragraph 2 of those complaints further explained that petitioners intended to sue “a foreign corporation having its principal offices at Time and Life Building, Sixth Avenue and 50th Street, New York, New York 10020 engaged in the publication of a magazine called ‘Fortune’ which is distributed throughout the world.” App. 9a. There is no, and has never been any, suggestion that the caption confused or misled any agent of the defendant. Indeed, on the day that he received the summons and complaints, Time, Incorporated’s agent forwarded them to Time, Incorporated’s law department with a cover letter that stated:

“Remarks: Discrepancy in corporate title noted. Letter from atty. indicates papers are for Time, Incorporated as publisher of Fortune. Service was made by mail pursuant to Rule 4(c) of the Federal Rules of Civil Procedure.” Id., at 35a.

On July 18, 1983 — well in advance of the September 6 deadline for service of process — petitioners filed an amendment to the complaints and redesignated “Fortune” as “Fortune, also known as Time, Incorporated.” Id., at 25a-26a. Again, there is no suggestion that this redesignation did cause, or could have caused, Time, Incorporated, any prejudice in maintaining its defense on the merits of the case. Nor is there any suggestion that Time, Incorporated, would have received better notice, or earlier notice, of the institution of the action if the magic words had been added to the initial complaints. The only question is whether Rule 15(c) should be construed to render petitioners’ complaints untimely even though they were filed within the statute of limitations and even though Time, Incorporated, clearly had adequate notice of the timely filed complaints.

¡ — I I — I

The majority relies exclusively on the plain language” of Rule 15(c). Far from compelling the majority’s anomalous result, the plain language of Rule 15(c) requires recognizing that there was no material difference between the notice given to Time, Incorporated, in the original complaints —from which Time, Incorporated, and its agent clearly understood that Time, Incorporated, was the intended defendant — and the notice that the Court concludes would have been adequate — in which petitioners would have appended “also known as Time, Incorporated” to the word “Fortune.”

According to the majority, petitioners’ complaints are barred because they did not satisfy a four-pronged test articulated in Rule 15(c). Ante, at 29-30. The majority ignores, however, a rather critical antecedent point. The four-pronged test is utterly irrelevant unless the amendment is one “changing the party against whom a claim is asserted.” In this case, the technical correction filed in July added absolutely nothing to any party’s understanding of “the party against whom” the claims were asserted — not to the plaintiffs’ understanding, of course, and certainly not to Time, Incorporated’s understanding, as its agent’s letter in May made clear.

The plain language of Rule 15(c) discloses an obvious purpose to protect parties who are not named in the original complaint from prejudice that may arise when they are subsequently “brought in by amendment.” If an original complaint names Smith as the tort-feasor and the plaintiff does not decide to sue Jones until after the statute of limitations has run, there would be obvious prejudice in allowing “an amendment changing the party against whom a claim is asserted” unless Jones had actual notice of the claim before the statute ran. There is also a risk of prejudice whenever the identification of the defendant is so inaccurate or ambiguous that a reading of the complaint itself would not enable the defendant himself to realize that he was the party being sued.

The misdescription in this case, however, is not remotely of the kind that the Rule’s “plain language” addresses. By any standard of fair notice, the difference between the description of the publisher of Fortune in the original complaints and the description of the publisher of Fortune in the amended complaints is no more significant than a misspelling, or perhaps a reference to “Time, Inc.” instead of “Time, Incorporated.”

In short, I would not construe this amendment as one “changing the party” against whom petitioners’ claims are asserted. Although the words “Time, Incorporated” were first added to the complaints by the amendment, that entity cannot, in my judgment, fairly be described as a party “brought in by amendment” within the meaning of Rule 15(c).

I — I HH l-H

Even if I agreed that the change m designation from “Fortune” to “Fortune also known as Time, Incorporated” brought in a new party, and even if I were willing to disregard the undisputed evidence of the Time, Incorporated agent’s contemporaneous understanding of the unadorned “Fortune” designation, I would still find the majority’s “plain language” analysis unpersuasive.

The heart of the majority’s analysis is that petitioners failed to satisfy the fourth factor of the test it discerns in Rule 15(c) — that “the second and third requirements must have been fulfilled within the prescribed limitations period.” Ante, at 29. The majority thus finds petitioners’ “fatal” mistake in the failure to amend within the statute of limitations period.

The language in the Rule imposing the deadline for amendments that relate back does not, however, refer to the statute of limitations. Rather, it describes “the period provided by law for commencing the action against him” (emphasis added). As I have noted, that period includes two components, the time for commencing the action by the filing of a complaint and the time in which the action “against him” must be implemented by the service of process. If the party is sufficiently described in the original complaint to avoid any possibility of prejudice to the defendant, I see no reason for not construing the Rule to embrace both components of the period provided by law for bringing a timely action against a particular defendant.

This construction is confirmed by a reference to the content of the notice requirement — what the majority labels the second prong of the four-part test. Ante, at 29. The Rule requires that the party affected by the amendment must have “received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits.” This language surely indicates that if the notice that the defendant actually receives is just as timely and just as informative as that which would have been received if no mistake had occurred, the purpose of the requirement has been satisfied. In this case, Time, Incorporated would have known nothing different on May 23, 1983, if the complaints sent to its agent referred to “Fortune, also known as Time, Incorporated” than it knew from the complaints as sent, with their reference to “Fortune.” Respondent has not even contended otherwise. Yet, for the Court, the first complaints would have been completely timely, and the second are completely barred.

IV

That the majority’s reading of the “plain language” leads to bizarre results is not altogether surprising. For the majority, relying so heavily on what it views as the clarity of the language before it, ignores the mission and history of Rule 15(c).

The principal purpose of Rule 15(c) is to enable a plaintiff to correct a pleading error after the statute of limitations has run if the correction will not prejudice his adversary in any way. That purpose is defeated — and the Rule becomes largely superfluous — if it is construed to require the correction to be made before the statute has run. Moreover, the specific liberalizing purpose of the 1966 amendment to the Rule is frustrated if the added language is construed to cut back on the number of cases in which relation back is permitted.

Prior to 1966, Rule 15(c) had included only the first sentence of the present Rule. In that form, the Rule had frequently been construed to allow relation back when there was a minor change in the designation of a party. See Shapiro v. Paramount Film Distributing Corp., 274 F. 2d 743 (CA3 1960); 3 J. Moore, Federal Practice § 15 — 15[4.—1], p. 15-211 (2d ed. 1985). A group of contrary cases in which the plaintiffs had mistakenly sued the wrong Government official and not been allowed to amend their complaints after the statute had run gave rise to criticism of the Rule and the addition of the second and third sentences of its present text. Ironically, it is the language added by the amendment in 1966 to broaden the category of harmless pleading errors which the Court construes today to narrow that category.

V

The Court does not tell us whether it would enforce an equally harsh construction of the Rule if the scrivener’s error had been a mere misspelling, or perhaps a reference to Time, Inc., instead of Time, Incorporated. More importantly, the Court does not provide a satisfactory explanation of why this case is, in fact, any different from such a case. Most importantly, the decision is the product of an unnecessary and unjust construction of the language of the Rule.

The Court recognizes that “there is an element of arbitrariness here,” ante, at 31, but finds solace in the fact that arbitrariness is no stranger to the law. Ibid. The Court is, of course, correct that arbitrariness sometimes arises from the application of rules and laws to the complexity of human experience. Far less understandable is the Court’s willingness to aggravate, rather than alleviate, that arbitrariness, particularly when the decision to do so is demonstrably at odds with the language, purpose, and history of the Rule.

I respectfully dissent.

      Compare, e. g., Cooper v. U. S. Postal Service, 740 F. 2d 714, 716 (CA9 1984), cert. denied, 471 U. S. 1022 (1985); Watson v. Unipress, Inc., 733 F. 2d 1386, 1390 (CA10 1984); Hughes v. United States, 701 F. 2d 56, 58 (CA7 1982); and Trace X Chemical, Inc. v. Gulf Oil Chemical Co., 724 F. 2d 68, 70-71 (CA8 1983), with Kirk v. Cronvich, 629 F. 2d 404, 408 (CA5 1980); Ingram v. Kumar, 585 F. 2d 566, 571-572 (CA2 1978), cert. denied, 440 U. S. 940 (1979); and Ringrose v. Engelberg Huller Co., 692 F. 2d 403, 410 (CA6 1982) (concurring opinion).

       No claim is made that Fortune is a separate legal entity with the capacity to be sued. •

       The cited New Jersey statute reads:
      “Every action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander.”

         The court noted that, despite the magazine’s cover date of May 31, 1982, the record “indicate[d]” that, for purposes of determining the limitations period, publication “occurred substantially before” May 31; that subscription copies were mailed May 12 and received by subscribers May 13-19; that newsstand copies went on sale May 17; that a press release was issued May 11; and that copies of the magazine were mailed to representatives of the press on that date. Supp. App. to Pet. for Cert. 19a.

       Rule 15(c) provides in pertinent part:
      “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

      The magazine’s very issue in question, that of May 31, 1982, p. 2, recites:
      “FORTUNE (ISSN 0015-8259), May 31, 1982, Vol. 105, No. 11. Issued biweekly by Time Inc., 3435 Wilshire Blvd., Los Angeles, Cal. 90010. . . . Principal offices: Time & Life Building, Rockefeller Center, New York, N. Y. 10020. . . . FORTUNE is a registered mark of Time Incorporated.”
      The parallel information set forth in current issues of Fortune magazine reads:
      “FORTUNE (ISSN 0015-8259). Published biweekly, with three issues in October, by Time Inc., 10880 Wilshire Blvd., Los Angeles, CA 90024-4193. Time Inc. principal office: Time & Life Building, Rockefeller Center, New York, NY 10020-1393. . . . FORTUNE is a registered mark of Time Inc.”
      See issue of June 9, 1986, p. 2; issue of May 26, 1986, p. 4; issue of May 12, 1986, p. 4.

      See, e. g., Travelers Indemnity Co. v. United States ex rel. Construction Specialties Co., 382 F. 2d 103 (CA10 1967); Montalvo v. Tower Life Building, 426 F. 2d 1135 (CA5 1970); Korn v. Royal Caribbean Cruise Line, Inc., 724 F. 2d 1397 (CA9 1984).

       Petitioners would garner support from Professor Clark Byse’s article, Suing the “Wrong” Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform, 77 Harv. L. Rev. 40 (1963), cited in the Advisory Committee’s Note to the 1966 amendment of Rule 15, 28 U. S. C. App., p. 550; 39 F. R. D. 83. That study was critically directed at four Federal District Court decisions concerning “relation back” in suits against Government officers. In each of the cases, however, the Government within the period of limitations was on notice of the claim.
      Similarly, petitioners’ reliance upon Justice White’s footnote comment in dissent from the denial of certiorari in Cooper v. United States Postal Service, 471 U. S. 1022, 1025, n. 3 (1985), seems to us to be misplaced. Justice White, in fact, noted the inherent weakness of any such reliance (“Petitioner’s position is somewhat weak in this regard because, while the complaint was filed within the requisite 30 days, no party was served with process within that period”).

       See Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 American Bar Assn. Reports 395, 404-405 (1906).

       Rule 4(j) states in its entirety:
      “If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule.”

       Rule 15(c) provides:
      “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
      “The delivery or mailing of process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.”

      The majority seeks to bolster its “plain language” analysis with the Advisory Committee’s reference to “the applicable limitations period.” Ante, at 31. In my view, this statement begs, rather than settles, the question. I also agree with Judge Feinberg’s analysis:
      “Although on its face the phrase, ‘within the period provided by law for commencing the action against him,’ seems to mean the applicable statute of limitations period, such a literal interpretation is unjustified in jurisdictions where timely service of process can be effected after the statute of limitations has run. In those jurisdictions, even an accurately named defendant may not receive actual notice of the action against him prior to the running of the statute of limitations. Yet there is no doubt that the action against him is timely commenced. There is no reason why a misnamed defendant is entitled to earlier notice than he would have received had the complaint named him correctly. Calling the problem raised here a ‘curious but minor difficulty of interpretation . . . over the language of the rule referring to the limitations period,’ Professor (now Justice) Benjamin Kaplan, reporter for the Advisory Committee on Civil Rules, implicitly criticized a district court decision refusing relation back on facts somewhat similar to these. Kaplan, [Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 410, and n. 204 (1967)]. Professor Kaplan noted the anomaly of dismissing an action, which ‘against the original defendant . . . would be considered timely brought despite the delayed service.’. . .
      “. . .We hold that under Rule 15(c) the period within which ‘the party to be brought in’ must receive notice of the action includes the reasonable time allowed under the federal rules for service of process.” Ingram v. Kumar, 585 F. 2d 566, 571-572 (CA2 1978), cert. denied, 440 U. S. 940 (1979) (footnotes omitted).
      It is curious that the majority, in relying on the Advisory Committee interpretation, ignores the reporter’s almost contemporaneous understanding.

       See Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 407-410 (1967).

       There is also irony in the way the Court gives lipservice to its duty to construe the Federal Rules of Civil Procedure in a way that will facilitate a proper decision on the merits. Ante, at 27. How different was the approach the Court considered appropriate in 1962:
      “It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. ‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’ Conley v. Gibson, 355 U. S. 41, 48. The Rules themselves provide that they are to be construed ‘to secure the just, speedy, and inexpensive determination of every action.’ Rule 1.” Foman v. Davis, 371 U. S. 178, 181-182.

       Indeed, if the misspelling of a name is sufficient to change the status of a legal document, then I assume that many of our much-discussed precedents had no legal force. See generally C. Wright, The Law of Federal Courts § 54, pp. 347-348, n. 5 (4th ed. 1983) (noting that the Court, and the official Reports, have continuously misspelled the parties’ names in such cases as Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940) (parties’ name was “Gobitas”); Dred Scott v. Sandford, 19 How. 393 (1857) (party’s name was “Sanford”); Swift v. Tyson, 16 Pet. 1 (1842) (party’s name was “Tysen”); and McCulloch v. Maryland, 4 Wheat. 316 (1819) (party’s name was “MeCulloh”)).