source: Caselaw Access Project

author: Justice Rehnquist Justice O’Connor,

license: Public Domain

text:
    SHEPARD v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 81-1627.
    Argued December 6, 1982
    Decided January 18, 1983
    Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, post, p. 352.

      Robert F. Gore argued the cause for petitioner. With him on the brief was Rex H. Reed.

      Edwin S. Kneedler argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Norton J. Come, and Linda Sher. Richard D. Prochazka filed a brief for respondent Building Material and Dump Truck Drivers, Teamsters Local 36. Robert W. Bell, Jr., filed a brief for respondents Associated General Contractors of America et al. William C. Bottger, Jr., and Robert Varde Kuenzel filed briefs for respondent California Dump Truck Owners Association.

        J. Albert Woll, Laurence Gold, Michael H. Gottesman, and Jeremiah A. Collins filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

   Justice Rehnquist

delivered the opinion of the Court.

This case grows out of a labor dispute in the construction industry in San Diego County, Cal. The issue is whether the National Labor Relations Board was required to provide a make-whole remedy for a violation of § 8(e) of the National Labor Relations Act (Act), 73 Stat. 543, 29 U. S. C. § 158(e), which prohibits so-called “hot cargo” contracts.

Petitioner Larry Shepard owns a dump truck, and operates it in the San Diego area to haul materials to and from construction sites. Contractors in this area generally hire dump truck operators through so called “brokers” on a day-to-day basis. Brokers agree with contractors to supply trucks and operators, then refer hauling jobs to individual owner-operators such as Shepard. Brokers handle the owner-operators’ billing and perform other coordinating services. They receive commissions based on the amount billed.

Before August 1978, Shepard was not a member of any union. In 1977 respondent Building Material and Dump Truck Drivers, Teamsters Local 86 (Union), entered into a new master collective-bargaining agreement (Agreement) with respondent contractors’ associations and their member contractors (Contractors). This Agreement accomplished a long-sought objective of the Union by prohibiting dealings on the part of contractors with nonunion operators. The effect of the Agreement was described by the Court of Appeals in this language:

“[T]he Union enlisted the aid of the Contractors to insure that only signatory brokers received subcontracts and only union truck operators performed hauling services for building contractors in the San Diego area.” 215 U. S. App. D. C. 373, 376, 669 F. 2d 759, 762 (1981).

In February 1978, Shepard contracted with Terra Trucking Co., a broker that had subscribed to the Agreement, for brokerage services. Although Shepard was not a member of the Union, he authorized Terra to make deductions from his earnings for several purposes, including the fringe benefit plan created by the Agreement. Terra deducted the appropriate sums when Shepard worked on union jobs and paid them to the Union’s fringe benefit funds.

In August 1978, the Union wrote to Terra stating that under the Agreement Terra must not deal with seven nonunion owner-operators, including Shepard. Terra informed these owner-operators that they would have to join the Union or find a new broker. Shepard joined under protest and paid an initiation fee and dues.

Shepard and respondent California Dump Truck Owners Association (Association) filed charges with the National Labor Relations Board, claiming that the Agreement violated both § 8(e) and § 8(b)(4) of the Act, 29 U. S. C. § 158(b)(4), the latter of which prohibits secondary boycotts. At the request of the Regional Director of the Board, Shepard filed a new charge alleging only a violation of § 8(e). In 1979 the Regional Director consolidated the two charges and issued a complaint against the Union and the Contractors alleging only a violation of § 8(e). After a hearing, an Administrative Law Judge found that these owner-operators are independent contractors rather than employees, and that the Union and the Contractors had therefore violated § 8(e) by agreeing not to do business with nonunion owner-operators. The ALJ recommended that the Board issue a cease-and-desist order and order the Union and the Contractors to reimburse owner-operators who were compelled to join the Union for amounts paid as dues, initiation fees, and fringe benefit contributions.

The Board affirmed the AL J’s findings and adopted his recommended order except for the reimbursement provision. The Board stated:

“The Board has on one occasion adopted without comment an [ALJ’s] recommended order containing such a remedy. Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Santini Brothers, Inc.), 208 NLRB 184, 201 (1974). In the present case, however, there is insufficient evidence in the record with respect to alleged losses directly attributable to actual coercion by Respondents. Furthermore, we find a reimbursement order, typically used to ‘make whole’ employees for violations of the Act, to be generally overbroad and inappropriate in the context of 8(e) violations. We note that aggrieved owner-operators engaged in business as independent contractors may pursue a damage claim under Sec. 303 of the Act. For the foregoing reasons, we find that the reimbursement of owner-operators ordered by the [ALJ] would not effectuate the remedial policies of the Act. See [Carpenters] v. N. L. R. B., 365 U. S. 651 (1961).” 249 N. L. R. B. 386, n. 2 (1980) (emphasis in original).

On petitions for review, the Court of Appeals enforced the Board’s order in all respects. It held that “the Board’s explanation is adequate, and that given our limited authority to disturb the Board’s exercise of discretion in such matters we may not interfere.” 215 U. S. App. D. C., at 380, 669 F. 2d, at 766. In a similar case involving dump truck owner-operators and a similar collective-bargaining agreement, the Court of Appeals for the Ninth Circuit remanded the case to the Board to order reimbursement, or to explain why reimbursement would not effectuate the purposes of the Act. Joint Council of Teamsters No. 42 v. NLRB, 671 F. 2d 305, 310-313 (1981). We granted certiorari in this case, 456 U. S. 970 (1982), and now affirm the judgment of the Court of Appeals for the District of Columbia Circuit.

The Board’s authority to issue an order in this case is granted by § 10(c) of the Act, 49 Stat. 454, as amended, 29 U. S. C. § 160(c):

“If. . . the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board . . . shall issue... an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.”

Shepard and the Association argue that the Board is required to order a make-whole remedy in this case. They rely on the reasoning of the Ninth Circuit in Joint Council of Teamsters No. 1+2, swpra, that “where money has been collected illegally, the Board should order a refund, absent some rational ground for not doing so.” 671 F. 2d, at 310. We think the Court of Appeals for the Ninth Circuit took too restricted a view of the Board’s discretion in designing a remedy. We conclude that the Board need not order reimbursement because its conclusion that the policies of the Act would not be effectuated by such an order is reasonable.

Congress has delegated to the Board the power to determine when the policies of the Act would be effectuated by a particular remedy. “In fashioning its remedies . . . the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts.” NLRB v. Gissel Packing Co., 395 U. S. 575, 612, n. 32 (1969). See Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, 216 (1964). In this case, the Board issued a cease-and-desist order and an order requiring the Union and the Contractors to post notices stating that the illegal portions of the Agreement will not be enforced. Shepard insists that the Board should have gone the last mile and ordered reimbursement as well.

The Board justified its action in declining to grant this additional remedy by the portion of its order quoted above. This explanatory paragraph strikes us as something less than a model of precise expository prose. Shortly after the enactment of the National Labor Relations Act, this Court had occasion to remind the Board:

“The administrative process will best be vindicated by clarity in its exercise. Since Congress has defined the authority of the Board and the procedure by which it must be asserted and has charged the federal courts with the duty of reviewing the Board’s orders (§ 10(e) and (f)), it will avoid needless litigation and make for effective and expeditious enforcement of the Board’s order to require the Board to disclose the basis of its order. We do not intend to enter the province that belongs to the Board, nor do we do so. All we ask of the Board is to give clear indication that it has exercised the discretion with which Congress has empowered it.” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941).

In this case, we think that the sense of the Board’s explanation is that it has decided to treat cases in which there is no finding of “actual” coercion differently from cases in which there is such a finding. By actual coercion, the Board apparently means threats, picketing, a strike, or some other form of coercion that would amount to a violation of § 8(b)(4). See Teamsters v, Morton, 377 U. S. 252, 259 (1964). It can scarcely be doubted that the Board could properly conclude that a remedy such as reimbursement should be reserved for especially egregious situations.

In choosing to accord the limited relief that it did, the Board relied on Carpenters v. NLRB, 365 U. S. 651 (1961), in which this Court held that a showing of coercion was required before the Board could order a union to reimburse dues paid to it by workers who were required by an unlawful “closed shop” contract to join the union. The Board presumably concluded that the reasoning of this case supported, at least by analogy, its decision not to award reimbursement. We think this conclusion was justifiable.

Congress has provided a judicial damages remedy for illegal secondary activity in § 303 of the Labor Management Relations Act of 1947, 29 U. S. C. §187. Shepard and the Board agree that § 303 provides a remedy only for violations of § 8(b)(4) of the Act, which, in turn, requires proof of coercion. Brief for Petitioner 28-37; Brief for Respondent National Labor Relations Board 32, n. 19, 38-42. Of course, Congress is free to provide a damages remedy for some violations of federal law, and not for others. It is reasonable for the Board to follow the pattern of the Act and order reimbursement only where Congress chose to permit damages.

The crux of the argument against the Board’s position made by Shepard and the Association is that actual coercion is not an element of a § 8(e) violation and therefore should not be required as a prerequisite to what they call “complete relief.” Brief for Petitioner 17. But the very way in which this argument is framed suggests that its proponents misconceive the role of the Board. The Board is not a court; it is not even a labor court; it is an administrative agency charged by Congress with the enforcement and administration of the federal labor laws. While a prayer for “complete relief” might find a receptive ear in a court of general jurisdiction, it is well settled that there are wide differences between administrative agencies and courts. See, e. g., FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 141-144 (1940). This Court has said that the Board’s “power to order affirmative relief under § 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct.” Automobile Workers v. Russell, 356 U. S. 634, 642-643 (1958).

We find nothing in the language or structure of the Act that requires the Board to reflexively order that which a complaining party may regard as “complete relief” for every unfair labor practice. We are satisfied for the reasons heretofore stated that the Board acted within its authority in deciding that a reimbursement order in this case would not effectuate the policies of the Act. The judgment of the Court of Appeals is therefore

Affirmed.

Justice O’Connor,

dissenting.

I agree with the Court that the National Labor Relations Board (NLRB) could reasonably determine in this case that reimbursing the petitioner is not necessary to effectuate the objectives of the National Labor Relations Act (Act). My disagreement is with the Court’s conclusion that the Board provided an adequate explanation for its decision. The Board offered three reasons for its conclusion that reimbursing the petitioner would not effectuate the purposes of the Act. Each of its stated reasons was in error or inadequate to justify its conclusion. I would therefore remand the case to the Board in order to give it an opportunity to determine the appropriateness of reimbursement in light of the Court’s opinion.

I

A brief review of the facts is useful in understanding the inadequacy of the Board’s explanation for its decision.

For over a decade, there has been a dispute between respondent Building Material and Dump Truck Drivers, Teamsters Local 36 (Union), and respondent California Dump Truck Owners Association (Association) over the availability of hauling jobs for nonunion truck operators. In June 1977, three contractors’ associations, which are respondents in this case (Contractors), entered into a new master labor agreement (Agreement) with the Union which required signatory contractors to transport “all materials ... to or from or on the site of the work by workmen furnished by the appropriate craft [union] . . . .” App. 10. The Agreement also required contractors to obtain the services of dump truck operators only through brokers who had signed an agreement with the Union and provided for penalties for contractors who failed to comply. Thus through the Agreement the Union required the Contractors to ensure that only signatory brokers received subcontracts for hauling and that only union operators performed hauling services.

Petitioner Larry Shepard is a self-employed dump truck operator. He accepted referrals from the Terra Trucking Co., a broker. In February 1978, Shepard entered into a subhaul agreement with Terra, under which the broker was authorized to make deductions from his earnings for a number of purposes, including “payroll benefits as required by the Union Agreement.” Id., at 22. When Shepard worked on union jobs, Terra deducted the appropriate amounts for payment to the Union’s benefit funds.

Terra signed the Agreement and was therefore required to refer only union operators to contractors. In August 1978, Terra’s president, Fred ReCupido, received a letter from the Union stating that seven of Terra’s “employees,” including Shepard, were not members in good standing of the Union. The letter requested that the seven be “removed from [Terra’s] employ and not be rehired until properly cleared by [the Union].” Id., at 27. ReCupido told the seven they would have to join the Union by September 5, 1978, if they wished to work through Terra. Shepard joined the Union in September 1978, and paid initiation fees and union dues “under protest,” on advice of counsel. Some of the other operators named in the Union’s letter also joined at that time.

On August 25, 1978, Shepard’s counsel filed unfair labor practice charges on behalf of Terra’s nonunion operators alleging violations of both § 8(b)(4) of the Act, 29 U. S. C. § 158(b)(4) — the prohibition against secondary boycotts — and §8(e), 29 U. S. C. § 158(e), the hot cargo provision. At the request of the Regional Director of the Board, those charges were withdrawn and replaced in October 1978 by charges alleging only a § 8(e) violation. The Regional Director joined Shepard’s unfair labor practice charge with charges previously filed by the Association and issued a consolidated complaint against the Union and the Contractors alleging that the Agreement violated § 8(e).

After trial, an Administrative Law Judge found that the Union and the Contractors violated § 8(e) by agreeing not to do business with nonunion operators and their brokers. He found that since 1965, the Union had brought economic pressure against the Contractors in order “to achieve its goal of unionization of owner-operators,” and that the Agreement was “part of the Union’s continuing efforts to achieve its goal _” 249 N. L. R. B. 386, 393 (1980).

The ALJ found that “Shepard joined the Union because of the letter Local 36 sent ReCupido.” Id., at 391. In addition to this specific finding, the ALJ made findings concerning another incident and stated that “union membership of owner-operators, resulted from illegal provisions of the [Agreement].” Id., at 394.

The ALJ recommended that the Board issue a cease-and-desist order and require that notices of its ruling be posted conspicuously. In addition, the ALJ recommended that the Union and the Contractors be required to reimburse operators for payments to the Union. Id., at 395.

The Board upheld the ALJ’s findings and conclusions but deleted his “make-whole” reimbursement order. The Board stated its reasons for doing so in a footnote which reads in relevant part:

“[TJhere is insufficient evidence in the record with respect to alleged losses directly attributable to actual coercion by [the Union and the Contractors]. Furthermore, we find a reimbursement order, typically used to “make whole” employees for violations of the Act, to be generally overbroad and inappropriate in the context of 8(e) violations. We note that aggrieved owner-operators engaged in business as independent contractors may pursue a damage claim under Sec. 303 of the Act. For the foregoing reasons, we find that the reimbursement of owner-operators ordered by the Administrative Law Judge would not effectuate the remedial policies of the Act. See [Carpenters] v. N. L. R. B., 365 U. S. 651 (1961).” Id., at 386, n. 2 (emphasis in original).

The United States Court of Appeals for the District of Columbia Circuit upheld the Board’s refusal to order reimbursement, rejecting the contentions that the Board had failed to explain its decision adequately and that the relief ordered was insufficient as a matter of law. 215 U. S. App. D. C. 373, 380, 669 F. 2d 759, 766 (1981).

1 — 4 l-H

The broad language of § 10(c) of the Act, 29 U. S. C. § 160(c), compels the conclusion that the Board has the authority to order restitution of money unlawfully collected by a union, regardless of whether the money was collected from employees or other persons. See Virginia Electric & Power Co. v. NLRB, 319 U. S. 533 (1943). Indeed, in a proceeding very similar to the instant case, the Board ordered reimbursement of independent owner-operators who joined a union as a result of the union’s successful efforts to coerce an employer to enter into and enforce a hot cargo agreement. Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Santini Brothers, Inc.), 208 N. L. R. B. 184 (1974), enf’d, 178 U. S. App. D. C. 223, 546 F. 2d 989 (1976), cert. denied, 434 U. S. 818 (1977).

The Board’s first reason for denying reimbursement was that it found that there was “insufficient evidence in the record with respect to alleged losses directly attributable to coercion by [the Union and the Contractors].” There is however, ample evidence, as found by the ALJ, that Shepard and other Terra owner-operators joined the Union and paid initiation fees and dues, against their will, as a result of the Union’s effort to enforce an agreement which violated § 8(e).

The Board’s second reason, that a reimbursement order is “generally overbroad and inappropriate in the context of 8(e) violations,” cannot withstand scrutiny. Although it would be inappropriate to order reimbursement of persons who would have made payments to a union regardless of whether it had attempted to enforce an illegal provision, an order requiring that Shepard be reimbursed for the initiation fees and dues he paid to the Union would not be “overbroad and inappropriate” in light of the ALJ’s finding that Shepard joined the Union as a result of the Union’s effort to enforce the hot cargo provision. Cf. Carpenters v. NLRB, 365 U. S. 651 (1961).

As its third reason for refusing to order reimbursement, the Board stated that the owner-operators “may pursue a damage claim under Sec. 303 of the Act.” But as the Board conceded, § 303 by its terms only creates a damages remedy for persons harmed by a § 8(b)(4) violation, not a § 8(e) violation. Ante, at 351. See Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616, 649, n. 9 (1975) (Stewart, J., dissenting). Thus in the absence of a finding of a § 8(b)(4) violation, petitioner could not successfully pursue a §303 action.

It is true that the Court “will uphold a decision of less than ideal clarity if the agency’s [reasons] may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974) (citation omitted). But as the Court ruled in SEC v. Chenery Corp., 318 U. S. 80, 95 (1943), “[a]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.” See FPC v. Texaco Inc., 417 U. S. 380, 397 (1974). The Board’s order in this case simply does not support its denial of reimbursement. I would therefore reverse the judgment of the Court of Appeals and remand this case to allow the Board to consider whether reimbursement of any or all of the funds paid to the Union by the petitioner is necessary to effectuate the Act’s prohibition against hot cargo agreements. See NLRB v. Food Store Employees, 417 U. S. 1 (1974).

       Section 8(e) provides in pertinent part:
      “It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement. . . whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any employer, or to cease doing business with any other person, and any contract or agreement entered into . . . containing such an agreement shall be to such extent unenforcible [sic] and void . . . .” 73 Stat. 543.

       Section 8(b)(4), as set forth in 29 U. S. C. § 158(b)(4), provides in pertinent part:
      “It shall be an unfair labor practice for a labor organization or its agents—
      “(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
      “(A) forcing or requiring any employer or selfemployed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;
      “(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person . . . .”

       Section 303 provides in pertinent part:
      “(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 8(b)(4)....
      “(b) Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefor in any district court of the United States . . . without respect to the amount in controversy, or in any other court, and shall recover the damages by him sustained and the cost of the suit.” 61 Stat. 158, as amended, 73 Stat. 545.

       The ALJ found that in November 1977, the Kissinger Trucking Co., a broker, entered into an agreement with a contractor, the Penhall Co., to supply hauling services. Shortly thereafter, Kissinger's manager was informed by Penhall’s superintendent that the Union had said that Kissinger should be replaced because it was referring nonunion operators. Kissinger lost the contract with Penhall and subsequently signed the 1977 Agreement. 249 N. L. R. B., at 390.

       The recommended order, which was omitted from publication, would have required the Union and the Contractors “[j Jointly and severally [to] make whole all owner-operators ... for all dues, initiation fees, assessments, and contributions to trust funds which . . . said owner-operators paid to [the] Union or its trust fund as a result of enforcement of the [illegal] provisions of the . . . Agreement.” Building Material and Dump Truck Drivers, Teamsters Local Union No. 36, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, No. 21-CE-197, slip op., at 18 (NLRB, Oct. 30, 1979).

       1 express no opinion as to whether the Board could, as the ALJ recommended here, require an employer to reimburse employees or independent contractors for funds unlawfully collected by a union with the acquiesence of the employer.

       Because Shepard signed the subhaul agreement, which authorized Terra to make deductions from his earnings for payments to the Union’s benefit funds, prior to the Union’s efforts to enforce the illegal provisions of the Agreement, it is not clear whether his payments to the benefit funds should be attributed to the Union’s attempts to enforce the hot cargo provision.

       Unlike the majority, I do not believe that it can reasonably be discerned from the terse footnote quoted above that the Board has barred reimbursement in cases in which there is no finding of a § 8(b)(4) violation because “reimbursement should be reserved for especially egregious situations.” Ante, at 350.


author: Chief Justice Burger Justice Marshall,

text:
    MISSOURI v. HUNTER
    No. 81-1214.
    Argued November 10, 1982
    Decided January 19, 1983

      Burger, C. J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 369.

      Philip M. Koppe, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the brief were John Ashcroft, Attorney General, and Steven W. Garrett, Assistant Attorney General.

      Gary L. Gardner argued the cause for respondent. With him on the brief was James W. Fletcher

      Briefs of amici curiae urging reversal were filed by Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, Elliott Schulder, and Mervyn Hamburg for the United States; and by William L. Cabalan, Edward Reilly Wilson, and Timothy A. Baughman for the Wayne County Prosecutor’s Office. .

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to consider whether the prosecution and conviction of a criminal defendant in a single trial on both a charge of “armed criminal action” and a charge of first-degree robbery — the underlying felony — violates the Double Jeopardy Clause of the Fifth Amendment.

H

On the evening of November 24, 1978, respondent and two accomplices entered an A & P supermarket in Kansas City, Missouri. Respondent entered the store manager’s office and ordered the manager, at gunpoint, to open two safes. While the manager was complying with the demands of the robbers, respondent struck him twice with the butt of his revolver. While the robbery was in progress, an employee who drove in front of the store observed the robbery and went to a nearby bank to alert an off-duty police officer. That officer arrived at the front of the store and ordered the three men to stop. Respondent fired a shot at the officer and the officer returned the fire but the trio escaped.

Respondent and his accomplices were apprehended. In addition to being positively identified by the store manager and the police officer at trial and in a lineup, respondent made an oral and written confession which was admitted in evidence. At his trial, respondent offered no direct evidence and was convicted of robbery in the first degree, armed criminal action, and assault with malice.

Missouri’s statute proscribing robbery in the first degree, Mo. Rev. Stat. §560.120 (1969), provides:

“Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, and against the will of such wife, servant, clerk or agent by violence to the person of such wife, servant, clerk or agent, or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree.”

Missouri Rev. Stat. §560.135 (Supp. 1975) prescribes the punishment for robbery in the first degree and provides in pertinent part:

“Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment by the division of corrections for not less than five years . . .

Missouri Rev. Stat. §559.225 (Supp. 1976) proscribes armed criminal action and provides in pertinent part:

“[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.”

Pursuant to these statutes respondent was sentenced to concurrent terms of (a) 10 years’ imprisonment for the robbery; (b) 15 years for armed criminal action; and (c) to a consecutive term of 5 years’ imprisonment for assault, for a total of 20 years.

On appeal to the Missouri Court of Appeals, respondent claimed that his sentence for both robbery in the first degree and armed criminal action violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution made applicable to the states by the Fourteenth Amendment. The Missouri Court of Appeals agreed and reversed respondent’s conviction and 15-year sentence for armed criminal action. 622 S. W. 2d 374 (1981). The Court of Appeals relied entirely upon the holding of the Missouri Supreme Court opinions in State v. Haggard, 619 S. W. 2d 44 (1981); Sours v. State, 593 S. W. 2d 208 (Sours I), vacated and remanded, 446 U. S. 962 (1980); and Sours v. State, 603 S. W. 2d 592 (1980) (Sours II), cert. denied, 449 U. S. 1131 (1981). The State’s timely alternative motion for rehearing or transfer to the Missouri Supreme Court was denied by the Court of Appeals on September 15, 1981. The Missouri Supreme Court denied review on November 10, 1981.

We granted certiorari, 456 U. S. 914 (1982), and we vacate and remand.

II

The Missouri Supreme Court first adopted its challenged approach to the Double Jeopardy issue now before us in Sours I, supra. In that case, as here, the defendant was convicted and sentenced separately for robbery in the first degree and armed criminal action based on the robbery. The Missouri Supreme Court concluded that under the test announced in Blockburger v. United States, 284 U. S. 299 (1932), armed criminal action and any underlying offense are the “same offense” under the Fifth Amendment’s Double Jeopardy Clause. That court acknowledged that the Missouri Legislature had expressed its clear intent that a defendant should be subject to conviction and sentence under the armed criminal action statute in addition to any conviction and sentence for the underlying felony. 593 S. W. 2d, at 216. The court nevertheless held that the Double Jeopardy Clause “prohibits imposing punishment for both armed criminal action and for the underlying felony.” Id., at 223 (footnote omitted). It then set aside the defendant’s conviction for armed criminal action.

When the State sought review here in Sours I, we remanded the case for reconsideration in light of our holding in Whalen v. United States, 445 U. S. 684 (1980). Missouri v. Sours, 446 U. S. 962 (1980). On remand, in Sours II, supra, the Missouri Supreme Court adhered to its previous ruling that armed criminal action and the underlying felony are the “same offense” and that the Double Jeopardy Clause bars separate punishment of a defendant for each offense, notwithstanding the acknowledged intent of the legislature to impose two separate punishments for the two defined offenses.

Most recently, in State v. Haggard, supra, the Missouri Supreme Court reexamined its decisions in Sours I, supra, and Sours II, supra, in light of our 1981 holding in Albernaz v. United States, 450 U. S. 333. The Missouri court, however, remained unpersuaded, stating:

“Until such time as the Supreme Court of the United States declares clearly and unequivocally that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not apply to the legislative branch of government, we cannot do other than what we perceive to be our duty to refuse to enforce multiple punishments for the same offense arising out of a single transaction.” 619 S. W. 2d, at 51.

This view manifests a misreading of our cases on the meaning of the Double Jeopardy Clause of the Fifth Amendment; we need hardly go so far as suggested to decide that a legislature constitutionally can prescribe cumulative punishments for violation of its first-degree robbery statute and its armed criminal action statute.

HH J-H h — I

The Double Jeopardy Clause is cast explicitly in terms of being “twice put in jeopardy.” We have consistently interpreted it “‘to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.’” Burks v. United States, 437 U. S. 1,11 (1978), quoting Green v. United States, 355 U. S. 184, 187 (1957). Because respondent has been subjected to only one trial, it is not contended that his right to be free from multiple trials for the same offense has been violated. Rather, the Missouri court vacated respondent’s conviction for armed criminal action because of the statements of this Court that the Double Jeopardy Clause also “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969). Particularly in light of recent precedents of this Court, it is clear that the Missouri Supreme Court has misperceived the nature of the Double Jeopardy Clause’s protection against multiple punishments. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.

In Whalen v. United States, supra, we addressed the question whether cumulative punishments for the offenses of rape and of killing the same victim in the perpetration of the crime of rape was contrary to federal statutory and constitutional law. A divided Court relied on Blockburger v. United States, 284 U. S. 299 (1932), in holding that the two statutes in controversy proscribed the “same” offense. The opinion in Blockburger stated:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., at 304.

In Whalen we also noted that Blockburger established a rule of statutory construction in these terms:

“The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” 445 U. S., at 691-692 (emphasis added).

We went on to emphasize the qualification on that rule:

“[W]here the offenses are the same . . . cumulative sentences are not permitted, unless elsewhere specially authorized by Congress” Id., at 693 (emphasis added).

It is clear, therefore, that the result in Whalen turned on the fact that the Court saw no “clear indication of contrary legislative intent.” Accordingly, under the rule of statutory construction, we held that cumulative punishment could not be imposed under the two statutes.

In Albemaz v. United States, 450 U. S. 333 (1981), we addressed the issue whether a defendant could be cumulatively punished in a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana. There, in contrast to Whalen, we concluded that the two statutes did not proscribe the “same” offense in the sense that “ ‘each provision requires proof of a fact [that] the other does not.’” 450 U. S.,at 339, quoting Blockburger, supra, at 304. We might well have stopped at that point and upheld the petitioners’ cumulative punishments under the challenged statutes since cumulative punishment can presumptively be assessed after conviction for two offenses that are not the “same” under Blockburger. See, e. g., American Tobacco Co. v. United States, 328 U. S. 781 (1946). However, we went on to state that because

“[t]he Blockburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Albernaz v. United States, 450 U. S., at 340 (emphasis added).

We found “[n]othing ... in the legislative history which . . . discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Block-burger test.” Ibid. We concluded our discussion of the impact of clear legislative intent on the Whalen rule of statutory construction with this language:

“[T]he question of what punishments are constitutionally permissible is no different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.” 450 U. S., at 344 (emphasis added) (footnote omitted).

Here, the Missouri Supreme Court has construed the two statutes at issue as defining the same crime. In addition, the Missouri Supreme Court has recognized that the legislature intended that punishment for violations of the statutes be cumulative. We are bound to accept the Missouri court’s construction of that State’s statutes. See O’Brien v. Skinner, 414 U. S. 524, 531 (1974). However, we are not bound by the Missouri Supreme Court’s legal conclusion that these two statutes violate the Double Jeopardy Clause, and we reject its legal conclusion.

Our analysis and reasoning in Whalen and Albemaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Block- burger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Accordingly, the judgment of the Court of Appeals of Missouri, Western District, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.

Justice Marshall,

with whom Justice Stevens joins,

dissenting.

The Double Jeopardy Clause forbids either multiple prosecutions or multiple punishment for “the same offence.” See, e. g., North Carolina v. Pearce, 395 U. S. 711, 717-718 (1969); United States v. Benz, 282 U. S. 304, 307-308 (1931); Ex parte Lange, 18 Wall. 163, 169, 173-175 (1874). Respondent was convicted of both armed criminal action and the lesser included offense of first-degree robbery, and he was sentenced for both crimes. Had respondent been tried for these two crimes in separate trials, he would plainly have been subjected to multiple prosecutions for “the same of-fence” in violation of the Double Jeopardy Clause. See Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam); Brown v. Ohio, 432 U. S. 161 (1977). For the reasons stated below, I do not believe that the phrase “the same offence” should be interpreted to mean one thing for purposes of the prohibition against multiple prosecutions and something else for purposes of the prohibition against multiple punishment.

First-degree robbery and armed criminal action constitute the same offense under the test set forth in Blockburger v. United States, 284 U. S. 299, 304 (1932). To punish respondent for first-degree robbery, the State was not required to prove a single fact in addition to what it had to prove to punish him for armed criminal action. The punishment imposed for first-degree robbery was not predicated upon proof of any act, state of mind, or result different from that required to establish armed criminal action. Respondent was thus punished twice for the elements of first-degree robbery: once when he was convicted and sentenced for that crime, and again when he was convicted and sentenced for armed criminal action.

A State has wide latitude to define crimes and to prescribe the punishment for a given crime. For example, a State is free to prescribe two different punishments (e. g., a fine and a prison term) for a single offense. But the Constitution does not permit a State to punish as two crimes conduct that constitutes only one “offence” within the meaning of the Double Jeopardy Clause. For whenever a person is subjected to the risk that he will be convicted of a crime under state law, he is “put in jeopardy of life or limb.” If the prohibition against being “twice put in jeopardy” for “the same offence” is to have any real meaning, a State cannot be allowed to convict a defendant two, three, or more times simply by enacting separate statutory provisions defining nominally distinct crimes. If the Double Jeopardy Clause imposed no restrictions on a legislature’s power to authorize multiple punishment, there would be no limit to the number of convictions that a State could obtain on the basis of the same act, state of mind, and result. A State would be free to create substantively identical crimes differing only in name, or to create a series of greater and lesser included offenses, with the first crime a lesser included offense of the second, the second a lesser included offense of the third, and so on.

Contrary to the assertion of the United States in its ami-cus brief, Brief for United States as Amicus Curiae 18-19, the entry of two convictions and the imposition of two sentences cannot be justified on the ground that the legislature could have simply created one crime but prescribed harsher punishment for that crime. This argument incorrectly assumes that the total sentence imposed is all that matters, and that the number of convictions that can be obtained is of no relevance to the concerns underlying the Double Jeopardy Clause.

When multiple charges are brought, the defendant is “put in jeopardy” as to each charge. To retain his freedom, the defendant must obtain an acquittal on all charges; to put the defendant in prison, the prosecution need only obtain a single guilty verdict. The prosecution’s ability to bring multiple charges increases the risk that the defendant will be convicted on one or more of those charges. The very fact that a defendant has been arrested, charged, and brought to trial on several charges may suggest to the jury that he must be guilty of at least one of those crimes. Moreover, where the prosecution’s evidence is weak, its ability to bring multiple charges may substantially enhance the possibility that, even though innocent, the defendant may be found guilty on one or more charges as a result of a compromise verdict. The submission of two charges rather than one gives the prosecution “the advantage of offering the jury a choice — a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence.” Cichos v. Indiana, 385 U. S. 76, 81 (1966) (Fortas, J., dissenting from dismissal of certiorari).

The Government’s argument also overlooks the fact that, quite apart from any sentence that is imposed, each separate criminal conviction typically has collateral consequences, in both the jurisdiction in which the conviction is obtained and in other jurisdictions. See Benton v. Maryland, 395 U. S. 784, 790 (1969); Sibron v. New York, 392 U. S. 40, 53-58 (1968). The number of convictions is often critical to the collateral consequences that an individual faces. For example, a defendant who has only one prior conviction will generally not be subject to sentencing under a habitual offender statute.

Furthermore, each criminal conviction itself represents a pronouncement by the State that the defendant has engaged in conduct warranting the moral condemnation of the community. See Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 404-405 (1958). Because a criminal conviction constitutes a formal judgment of condemnation by the community, each additional conviction imposes an additional stigma and causes additional damage to the defendant’s reputation. See O’Clair v. United States, 470 F. 2d 1199, 1203 (CA1 1972), cert. denied, 412 U. S. 921 (1973).

A statutory scheme that permits the prosecution to obtain two convictions and two sentences therefore cannot be regarded as the equivalent of a statute that permits only a single conviction, whether or not that single conviction can result in a sentence of equal severity. The greater the number of possible convictions, the greater the risk that the defendant faces. The defendant is “put in jeopardy” with respect to each charge against him.

The very fact that the State could simply convict a defendant such as respondent of one crime and impose an appropriate punishment for that crime demonstrates that it has no legitimate interest in seeking multiple convictions and multiple punishment. The creation of multiple crimes serves only to strengthen the prosecution’s hand. It advances no valid state interest that could not just as easily be achieved without bringing multiple charges against the defendant.

In light of these considerations, the Double Jeopardy Clause cannot reasonably be interpreted to leave legislatures completely free to subject a defendant to the risk of multiple punishment on the basis of a single criminal transaction. In the context of multiple prosecutions, it is well established that the phrase “the same offence” in the Double Jeopardy Clause has independent content — that two crimes that do not satisfy the Blockburger test constitute “the same offence” under the Double Jeopardy Clause regardless of the legislature’s intent to treat them as separate offenses. Otherwise multiple prosecutions would be permissible whenever authorized by the legislature. The Court has long assumed that the Blockburger test is also a rule of constitutional stature in multiple-punishment cases, and I would not hesitate to hold that it is. If the prohibition against being “twice put in jeopardy” for “the same offence” is to provide meaningful protection, the phrase “the same offence” must have content independent of state law in both contexts. Since the Double Jeopardy Clause limits the power of all branches of government, including the legislature, there is no more reason to treat the test as simply a rule of statutory construction in multiple-punishment cases than there would be in multiple-prosecution cases.

I respectfully dissent.

       In Sours I, the Missouri Supreme Court noted that the double jeopardy provision in the Missouri Constitution, Art. I, § 19, “has been interpreted to apply ‘only where there has been an acquittal of the defendant by the jury.’ ” 593 S. W. 2d, at 211, quoting Murray v. State, 475 S. W. 2d 67, 70 (Mo. 1972). Clearly, it is the Double J eopardy Clause of the Fifth Amendment, and not Missouri’s double jeopardy provision, that is relied upon by the Missouri Supreme Court in these cases.
      When the issue first arose, the Missouri Supreme Court took the position that multiple convictions for both armed criminal action and the underlying felony did not violate the Double Jeopardy Clause. State v. Treadway, 558 S. W. 2d 646 (1977), cert. denied, 439 U. S. 838 (1978); State v. Valentine, 584 S. W. 2d 92 (1979).

       The Missouri Supreme Court has recently made clear that “in order to establish uniformity of sentencing in Sours type cases, the armed criminal action sentence should be reversed in all instances. [W]e are convinced that in the historical background of the armed criminal action statute, the net effect of such statute is to enhance (in pure sense of enlarging) the penalty assessed for the underlying felony .... The attempt to enhance or enlarge having failed because of being phrased in terms of separate crime or offense and in our opinion thereby violative of the constitutional prohibition against double jeopardy, we are left with only the penalty assessed on the underlying felony.” State v. Kane, 629 S. W. 2d 372, 377 (1982).

       The State’s petition for writ of certiorari in Sours II was denied. Justice Blackmun and Justice Rehnquist would have dismissed the petition as moot. Missouri v. Sours, 449 U. S. 1131 (1981).

         Subsequent to the Missouri Supreme Court’s decision on remand in Sours II, the Missouri Supreme Court, as well as the three districts of the Missouri Court of Appeals, began reversing convictions for armed criminal action in a number of cases. The State, in most instances, sought review by certiorari from this Court. In response to those petitions, this Court repeatedly granted certiorari and vacated decisions that had reversed convictions for armed criminal action on the basis of Sours II. See, e. g., Missouri v. Counselman, 450 U. S. 990 (1981). The orders from this Court in every case read substantially the same: “Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Albernaz v. United States, ante, p. 333.” Ibid. The Missouri Supreme Court chose Haggard “as the vehicle for accomplishing the reexamination ‘in light of Albernaz.”’ 619 S. W. 2d, at 49.

       This case presents only issues under the Double Jeopardy Clause.

       The Double Jeopardy Clause would have forbidden multiple prosecutions regardless of which charge was brought first, and regardless of whether the first trial ended in a conviction or an acquittal.

       Under Blockburger “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U. S., at 304. Missouri law defines first-degree robbery as the felonious taking of property of another from his person, or in his presence, by violence or threat of violence. Mo. Rev. Stat. §560.120 (1969). Armed criminal action is the commission of a felony with a dangerous or deadly weapon. Mo. Rev. Stat. § 559.225 (Supp. 1976). Although the underlying felony necessary to obtain a conviction for armed criminal action need not be first-degree robbery, the Missouri courts have properly recognized that the theoretical possibility that the underlying felony could be some felony other than first-degree robbery is irrelevant for purposes of the Double Jeopardy Clause where no other underlying felony is in fact charged. Sours v. State, 593 S. W. 2d 208, 217-220 (Mo.), vacated and remanded, 446 U. S. 962 (1980). Cf. Harris v. Oklahoma, 433 U. S. 682 (1977) (defendant cannot be subjected to multiple prosecutions for felony murder and robbery with firearms where the felony underlying the felony-murder charge was robbery with firearms). Petitioner makes no argument to the contrary.

       Although the majority relies on a passage in Albernaz v. United States, 450 U. S. 333,344 (1981), which states that cumulative punishment does not violate the Constitution so long as it is authorized by the legislature, ante, at 367-368, that passage is clearly dicta. The Court held in Albemaz that the two crimes at issue did not constitute the same offense under the Blockburger test, 450 U. S., at 339, because each required proof of a fact which the other did not. Albemaz simply did not involve the question whether the Double Jeopardy Clause forbids multiple punishment for two crimes that do constitute the same offense under the Blockburger test.

        Whalen v. United States, 445 U. S. 684 (1980), on which the Court also relies, ante, at 366-367, likewise did not decide this question. Whalen held that, “in the absence of a clear indication of contrary legislative intent,” 445 U. S., at 692, a defendant cannot be subjected to multiple punishment for two crimes that constitute the same offense under Blockburger. The Court had no occasion to decide, and it did not decide, whether multiple punishment for two such crimes can be imposed if clearly authorized by the legislature. See 445 U. S., at 689 (“The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so”) (emphasis supplied).

       It is true that compromise is possible even under the familiar procedure whereby a lesser included offense is submitted along with a greater offense and the jury is told that it can convict on only one charge. Under the usual procedure, however, the risk of an irrational compromise is reduced by the rule that a lesser included offense will not be submitted to the jury if the element that distinguishes the two offenses is not in dispute. See, e. g., Sansone v. United States, 380 U. S. 343 (1965); United States v. Tsanas, 572 F. 2d 340, 345-346 (CA2), cert. denied, 435 U. S. 995 (1978).

       The test later set forth in Blockburger was adopted by this Court in the context of multiple prosecutions nearly a century ago. See In re Nielsen, 131 U. S. 176, 186-188 (1889). See also In re Snow, 120 U. S. 274 (1887).

         Blockburger itself was a multiple-punishment case. In rejecting the defendant’s double jeopardy claim on the ground that each crime required proof of a fact which the other did not, 284 U. S., at 304, the Court relied on Justice Brandéis’ opinion for the Court in Albrecht v. United States, 273 U. S. 1 (1927), in which he had expressly analyzed a claim of multiple punishment in constitutional rather than statutory terms and rejected the claim because it would have been possible to commit each crime without committing the other, id., at 11.


author: Justice Marshall

text:
    HERMAN & MacLEAN v. HUDDLESTON et al.
    No. 81-680.
    Argued November 9, 1982
    Decided January 24, 1983

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

      James L. Truitt argued the cause for Herman & MacLean. With him on the briefs was Jack Pew, Jr.

      Robert H. Jaffe argued the cause for respondents in No. 81-680 and petitioners in No. 81-1076. With him on the brief were Myer Feldman, Jonathan M. Weisgall, Robert L. Deitz, and David S. Komiss.

      Paul Gonson argued the cause for the Securities and Exchange Commission as amicus curiae. With him on the brief urging affirmance in part and reversal in part were Solicitor General Lee, Deputy Solicitor General Shapiro, Jacob H. Stillman, and Richard A. Kirby.

      Together with No. 81-1076, Huddleston et al. v. Herman & MacLean et al., also on certiorari to the same court.

         William E. Hegarty, Victor M. Earle III, and Joseph W. Muccia filed a brief for Peat, Marwick, Mitchell & Co. as amicus curiae urging reversal.
      Briefs of amici curiae were filed by Edward J. Ross and Charles W. Boand for Arthur Anderson & Co.; and by John L. Warden, Philip K. Howard, and William J. Fitzpatrick for the Securities Industry Association.

   Justice Marshall

delivered the opinion of the Court.

These consolidated cases raise two unresolved questions concerning § 10(b) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 891, 15 U. S. C. §78j(b). The first is whether purchasers of registered securities who allege they were defrauded by misrepresentations in a registration statement may maintain an action under § 10(b) notwithstanding the express remedy for misstatements and omissions in registration statements provided by § 11 of the Securities Act of 1933 (1933 Act), 48 Stat. 82, as amended, 15 U. S. C. §77k. The second question is whether persons seeking recovery under § 10(b) must prove their cause of action by clear and convincing evidence rather than by a preponderance of the evidence.

I

In 1969 Texas International Speedway, Inc. (TIS), filed a registration statement and prospectus with the Securities and Exchange Commission offering a total of $4,398,900 in securities to the public. The proceeds of the sale were to be used to finance the construction of an automobile speedway. The entire issue was sold on the offering date, October 30, 1969. TIS did not meet with success, however, and the corporation filed a petition for bankruptcy on November 30, 1970.

In 1972 plaintiffs Huddleston and Bradley instituted a class action in the United States District Court for the Southern District of Texas on behalf of themselves and other purchasers of TIS securities. The complaint alleged violations of § 10(b) of the 1934 Act and SEC Rule 10b-5 promulgated thereunder, 17 CFR §240.10b-5 (1982). Plaintiffs sued most of the participants in the offering, including the accounting firm, Herman & MacLean, which had issued an opinion concerning certain financial statements and a pro forma balance sheet that were contained in the registration statement and prospectus. Plaintiffs claimed that the defendants had engaged in a fraudulent scheme to misrepresent or conceal material facts regarding the financial condition of TIS, including the costs incurred in building the speedway.

After a 3-week trial, the District Judge submitted the case to the jury on special interrogatories relating to liability. The judge instructed the jury that liability could be found only if the defendants acted with scienter. The judge also instructed the jury to determine whether plaintiffs had proved their cause of action by a preponderance of the evidence. After the jury rendered a verdict in favor of the plaintiffs on the submitted issues, the judge concluded that Herman & MacLean and others had violated § 10(b) and Rule 10b-5 by making fraudulent misrepresentations in the TIS registration statement. The court then determined the amount of damages and entered judgment for the plaintiffs.

On appeal, the United States Court of Appeals for the Fifth Circuit held that a cause of action may be maintained under § 10(b) of the 1934 Act for fraudulent misrepresentations and omissions even when that conduct might also be actionable under § 11 of the 1933 Act. 640 F. 2d 534, 540-543 (1981). However, the Court of Appeals disagreed with the District Court as to the appropriate standard of proof for an action under § 10(b), concluding that a plaintiff must prove his case by “clear and convincing” evidence. Id., at 545-546. The Court of Appeals reversed the District Court’s judgment on other grounds and remanded the case for a new trial. Id., at 547-550, 560.

We granted certiorari to consider whether an implied cause of action under § 10(b) of the 1934 Act will lie for conduct subject to an express civil remedy under the 1933 Act, an issue we have previously reserved, and to decide the standard of proof applicable to actions under § 10(b). 456 U. S. 914 (1982). We now affirm the Court of Appeals’ holding that plaintiffs could maintain an action under § 10(b) of the 1934 Act, but we reverse as to the applicable standard of proof.

HH H-1

The Securities Act of 1933 and the 1934 Act “constitute interrelated components of the federal regulatory scheme governing transactions in securities.” Ernst & Ernst v. Hochfelder, 425 U. S. 185, 206 (1976). The Acts created several express private rights of action, one of which is contained in § 11 of the 1933 Act. In addition to the private actions created explicitly by the 1933 and 1934 Acts, federal courts have implied private remedies under other provisions of the two laws. Most significantly for present purposes, a private right of action under § 10(b) of the 1934 Act and Rule 10b-5 has been consistently recognized for more than 35 years. The existence of this implied remedy is simply beyond peradventure.

The issue in this case is whether a party should be barred from invoking this established remedy for fraud because the allegedly fraudulent conduct would apparently also provide the basis for a damages action under §11 of the 1933 Act. The resolution of this issue turns on the fact that the two provisions involve distinct causes of action and were intended to address different types of wrongdoing.

Section 11 of the 1933 Act allows purchasers of a registered security to sue certain enumerated parties in a registered offering when false or misleading information is included in a registration statement. The section was designed to assure compliance with the disclosure provisions of the Act by imposing a stringent standard of liability on the parties who play a direct role in a registered offering. If a plaintiff purchased a security issued pursuant to a registration statement, he need only show a material misstatement or omission to establish his prima facie case. Liability against the issuer of a security is virtually absolute, even for innocent misstatements. Other defendants bear the burden of demonstrating due diligence. See 15 U. S. C. §77k(b).

Although limited in scope, § 11 places a relatively minimal burden on a plaintiff. In contrast, § 10(b) is a “catchall” anti-fraud provision, but it requires a plaintiff to carry a heavier burden to establish a cause of action. While a §11 action must be brought by a purchaser of a registered security, must be based on misstatements or omissions in a registration statement, and can only be brought against certain parties, a § 10(b) action can be brought by a purchaser or seller of “any security” against “cmy person” who has used “any manipulative or deceptive device or contrivance” in connection with the purchase or sale of a security. 15 U. S. C. § 78j (emphasis added). However, a § 10(b) plaintiff carries a heavier burden than a § 11 plaintiff. Most significantly, he must prove that the defendant acted with scienter, i. e., with intent to deceive, manipulate, or defraud.

Since § 11 and § 10(b) address different types of wrongdoing, we see no reason to carve out an exception to § 10(b) for fraud occurring in a registration statement just because the same conduct may also be actionable under § 11. Exempting such conduct from liability under § 10(b) would conflict with the basic purpose of the 1933 Act: to provide greater protection to purchasers of registered securities. It would be anomalous indeed if the special protection afforded to purchasers in a registered offering by the 1933 Act were deemed to deprive such purchasers of the protections against manipulation and deception that § 10(b) makes available to all persons who deal in securities.

While some conduct actionable under § 11 may also be actionable under § 10(b), it is hardly a novel proposition that the 1934 Act and the 1933 Act “prohibit some of the same conduct.” United States v. Naftalin, 441 U. S. 768, 778 (1979) (applying § 17(a) of the 1933 Act to conduct also prohibited by § 10(b) of the 1934 Act in an action by the SEC). “‘The fact that there may well be some overlap is neither unusual nor unfortunate.’” Ibid., quoting SEC v. National Securities, Inc., 393 U. S. 453, 468 (1969). In saving clauses included in the 1933 and 1934 Acts, Congress rejected the notion that the express remedies of the securities laws would pre-empt all other rights of action. Section 16 of the 1933 Act states unequivocally that “[t]he rights and remedies provided by this title shall be in addition to any and all other rights and remedies that may exist at law or in equity.” 15 U. S. C. §77p. Section 28(a) of the 1934 Act contains a parallel provision. 15 U. S. C. §78bb(a). These provisions confirm that the remedies in each Act were to be supplemented by “any and all” additional remedies.

This conclusion is reinforced by our reasoning in Ernst & Ernst v. Hochfelder, which held that actions under § 10(b) require proof of scienter and do not encompass negligent conduct. In so holding, we noted that each of the express civil remedies in the 1933 Act allowing recovery for negligent conduct is subject to procedural restrictions not applicable to a § 10(b) action. 425 U. S., at 208-210. We emphasized that extension of § 10(b) to negligent conduct would have allowed causes of action for negligence under the express remedies to be brought instead under § 10(b), “thereby nullifying] the effectiveness of the carefully drawn procedural restrictions on these express actions.” Id., at 210 (footnote omitted). In reasoning that scienter should be required in § 10(b) actions in order to avoid circumvention of the procedural restrictions surrounding the express remedies, we necessarily assumed that the express remedies were not exclusive. Otherwise there would have been no danger of nullification. Conversely, because the added burden of proving scienter attaches to suits under § 10(b), invocation of the § 10(b) remedy will not “nullify” the procedural restrictions that apply to the express remedies.

This cumulative construction of the remedies under the 1933 and 1934 Acts is also supported by the fact that, when Congress comprehensively revised the securities laws in 1975, a consistent line of judicial decisions had permitted plaintiffs to sue under § 10(b) regardless of the availability of express remedies. In 1975 Congress enacted the “most substantial and significant revision of this country’s Federal securities laws since the passage of the Securities Exchange Act in 1934.” See Securities Acts Amendments of 1975, Pub. L. 94-29, 89 Stat. 97. When Congress acted, federal courts had consistently and routinely permitted a plaintiff to proceed under § 10(b) even where express remedies under §11 or other provisions were available. In light of this well-established judicial interpretation, Congress’ decision to leave § 10(b) intact suggests that Congress ratified the cumulative nature of the § 10(b) action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 381-382 (1982); Lorillard v. Pons, 434 U. S. 575, 580-581 (1978).

A cumulative construction of the securities laws also furthers their broad remedial purposes. In enacting the 1934 Act, Congress stated that its purpose was “to impose requirements necessary to make [securities] regulation and control reasonably complete and effective.” 15 U. S. C. § 78b. In furtherance of that objective, § 10(b) makes it unlawful to use “any manipulative or deceptive device or contrivance” in connection with the purchase or sale of any security. The effectiveness of the broad proscription against fraud in § 10(b) would be undermined if its scope were restricted by the existence of an express remedy under § 11. Yet we have repeatedly recognized that securities laws combating fraud should be construed “not technically and restrictively, but flexibly to effectuate [their] remedial purposes.” SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 195 (1963). Accord, Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6, 12 (1971); Affiliated Ute Citizens v. United States, 406 U. S. 128, 151 (1972). We therefore reject an interpretation of the securities laws that displaces an action under § 10(b).

Accordingly, we hold that the availability of an express remedy under §11 of the 1933 Act does not preclude defrauded purchasers of registered securities from maintaining an action under § 10(b) of the 1934 Act. To this extent the judgment of the Court of Appeals is affirmed.

HH HH I — I

In a typical civil suit for money damages, plaintiffs must prove their casé by a preponderance of the evidence. Similarly, in an action by the SEC to establish fraud under § 17(a) of the 1933 Act, 15 U. S. C. § 77q(a), we have held that proof by a preponderance of the evidence suffices to establish liability. SEC v. C. M. Joiner Leasing Corp., 320 U. S. 344, 355 (1943). “Where . . . proof is offered in a civil action, as here, a preponderance of the evidence will establish the case . . . .” Ibid. The same standard applies in administrative proceedings before the SEC and has been consistently employed by the lower courts in private actions under the securities laws.

The Court of Appeals nonetheless held that plaintiffs in a § 10(b) suit must establish their case by clear and convincing evidence. The Court of Appeals relied primarily on the traditional use of a higher burden of proof in civil fraud actions at common law. 640 F. 2d, at 545-546. Reference to common-law practices can be misleading, however, since the historical considerations underlying the imposition of a higher standard of proof have questionable pertinence here. See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 744-745 (1975) (“[T]he typical fact situation in which the classic tort of misrepresentation and deceit evolved was light years away from the world of commercial transactions to which Rule 10b-5 is applicable”). Moreover, the antifraud provisions of the securities laws are not coextensive with common-law doctrines of fraud. Indeed, an important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry. See SEC v. Capital Gains Research Bureau, Inc., supra, at 186. We therefore find reference to the common law in this instance unavailing.

Where Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, we must prescribe one. See Steadman v. SEC, 450 U. S. 91, 95 (1981). See generally Blue Chip Stamps v. Manor Drug Stores, supra, at 749 (private cause of action under § 10(b) and Rule 10b-5 must be judicially delimited until Congress acts). In doing so, we are mindful that a standard of proof “serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Addington v. Texas, 441 U. S. 418, 423 (1979). See also In re Winship, 397 U. S. 358, 370-371 (1970) (Harlan, J., concurring). Thus, we have required proof by clear and convincing evidence where particularly important individual interests or rights are at stake. See, e. g., Santosky v. Kramer, 455 U. S. 745 (1982) (proceeding to terminate parental rights); Addington v. Texas, supra (involuntary commitment proceeding); Woodby v. INS, 385 U. S. 276, 285-286 (1966) (deportation). By contrast, imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of the evidence. See, e. g., United States v. Regan, 232 U. S. 37, 48-49 (1914) (proof by a preponderance of the evidence suffices in civil suits involving proof of acts that expose a party to a criminal prosecution). Thus, in interpreting a statutory provision in Steadman v. SEC, supra, we upheld use of the preponderance standard in SEC administrative proceedings concerning alleged violations of the antifraud provisions. The sanctions imposed in the proceedings included an order permanently barring an individual from practicing his profession. And in SEC v. C. M. Joiner Leasing Corp., 320 U. S., at 355, we held that a preponderance of the evidence suffices to establish fraud under § 17(a) of the 1933 Act.

A preponderance-of-the-evidence standard allows both parties to “share the risk of error in roughly equal fashion.” Addington v. Texas, supra, at 423. Any other standard expresses a preference for one side’s interests. The balance of interests in this case warrants use of the preponderance standard. On the one hand, the defendants face the risk of opprobrium that may result from a finding of fraudulent conduct, but this risk is identical to that in an action under § 17(a), which is governed by the preponderance-of-the-evidence standard. The interests of defendants in a securities case do not differ qualitatively from the interests of defendants sued for violations of other federal statutes such as the antitrust or civil rights laws, for which proof by a preponderance of the evidence suffices. On the other hand, the interests of plaintiffs in such suits are significant. Defrauded investors are among the very individuals Congress sought to protect in the securities laws. If they prove that it is more likely than not that they were defrauded, they should recover.

We therefore decline to depart from the preponderance-of-the-evidence standard generally applicable in civil actions. Accordingly, the Court of Appeals’ decision as to the appropriate standard of proof is reversed.

IV

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are otherwise remanded for proceedings consistent with this opinion.

It is so ordered.

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

       The case was transferred to the United States District Court for the Northern District of Texas in January 1973.

       Plaintiffs also alleged violations of, inter alia, § 17(a) of the 1933 Act, 15 U. S. C. § 77q(a). We have previously reserved decision on whether § 17(a) affords a private remedy, Teamsters v. Daniel, 439 U. S. 551, 557, n. 9 (1979), and we do so once again. Plaintiffs have abandoned their § 17(a) claim, Brief for Respondents in No. 81-680, p. 4, n. 6, and the Court of Appeals did not address the existence of a separate cause of action under § 17(a). Accordingly, there is no need for us to decide the issue.

       A pro forma balance sheet is one prepared on the basis of assumptions as to future events.

       The judge stated that reckless behavior could satisfy the scienter requirement. While this instruction reflects the prevailing view of the Courts of Appeals that have addressed the issue, see McLean v. Alexander, 599 F. 2d 1190, 1197, and n. 12 (CA3 1979) (collecting cases), we have explicitly left open the question whether recklessness satisfies the scienter requirement. Ernst & Ernst v. Hochfelder, 425 U. S. 185, 194, n. 12 (1976).

       The trial court also found that Herman & MacLean had aided and abetted violations of § 10(b). While several Courts of Appeals have permitted aider-and-abettor liability, see IIT, An International Investment Trust v. Cornfeld, 619 F. 2d 909, 922 (CA2 1980) (collecting cases), we specifically reserved this issue in Ernst & Ernst v. Hochfelder, supra, at 191-192, n. 7. Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 394 (1982) (discussing liability for participants in a conspiracy under analogous Commodity Exchange Act provision).

       See, e. g., Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 752, n. 15 (1975).

       The Fifth Circuit’s adoption of a clear-and-convincing-evidence standard in a private action under § 10(b) appears to be unprecedented. See 3 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 98.04, p. 930 (3d ed., 1981 Cum. Supp.). Other courts have employed a preponderance-of-the-evidence standard in private actions under the securities laws. See, e. g., Mihara v. Dean Witter & Co., 619 F. 2d 814, 824-825 (CA9 1980); Dzenits v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 F. 2d 168, 171, n. 2 (CA101974); Globus v. Law Research Service, Inc., 418 F. 2d 1276, 1291 (CA2 1969), cert. denied, 397 U. S. 913 (1970); Franklin Life Insurance Co. v. Commonwealth Edison Co., 451 F. Supp. 602, 607 (SD Ill. 1978), aff’d per curiam, 598 F. 2d 1109 (CA7), cert. denied, 444 U. S. 900 (1979).

       1933 Act, §§ 11, 12, 15, 15 U. S. C. §§ 77k, 111, 77o; 1934 Act, §§ 9, 16, 18, 15 U. S. C. §§ 78i, 78p, 78r.

       See, e. g., J. I. Case Co. v. Borak, 377 U. S. 426 (1964) (§ 14(a) of 1934 Act); Dan River, Inc. v. Unitex Ltd., 624 F. 2d 1216 (CA4 1980) (§ 13 of 1934 Act), cert. denied, 449 U. S. 1101 (1981); Kirshner v. United States, 603 F. 2d 234, 241 (CA2 1978) (§ 17(a) of 1934 Act), cert. denied, 442 U. S. 909 (1979). But see, e. g., Touche Ross & Co. v. Redington, 442 U. S. 560 (1979) (no implied private right of action under § 17(a) of 1934 Act); Piper v. Chris-Craft Industries, Inc., 430 U. S. 1 (1977) (defeated tender offeror has no implied private right of action under § 14(e) of 1934 Act).

       The right of action was first recognized in Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946). By 1961, four Courts of Appeals and several District Courts in other Circuits had recognized the existence of a private remedy under § 10(b) and Rule 10b-5, and only one District Court decision had reached a contrary conclusion. See 3 L. Loss, Securities Regulation 1763-1764, and nn. 260-263 (2d ed. 1961) (collecting cases). By 1969, the existence of a private cause of action hafd been recognized by 10 of the 11 Courts of Appeals. See 6 id., at 3871-3873 (Supp. 1969) (collecting cases). When the question whether an implied cause of action can be brought under § 10(b) and Rule 10b-5 was first considered in this Court, we confirmed the existence of such a cause of action without extended discussion. See Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6, 13, n. 9 (1971). We have since repeatedly reaffirmed that “the existence of a private cause of action for violations of the statute and the Rule is now well established.” Ernst & Ernst v. Hochfelder, 425 U. S., at 196 (citing prior cases).

       The Court of Appeals noted that the plaintiffs “apparently did have a Section 11 remedy.” 640 F. 2d 534, 541, n. 5 (1981). While accurate as to the two other defendants, this conclusion may be open to question with respect to Herman & MacLean. Accountants are liable under § 11 only for those matters which purport to have been prepared or certified by them. 15 U. S. C. § 77k(a)(4). Herman & MacLean contends that it did not “expertise” at least some of the materials that were the subject of the lawsuit, Tr. of Oral Arg. 6-8, which if true could preclude a § 11 remedy with respect to these materials.

       See H. R. Rep. No. 85, 73d Cong., 1st Sess., 9 (1933) (Section 11 creates “correspondingly heavier legal liability” in line with responsibility to the public).

       A § 11 action can be brought only against certain parties such as the issuer, its directors or partners, underwriters, and accountants who are named as having prepared or certified the registration statement. See 15 U. S. C. § 77k(a). At the same time, §§ 3 and 4 of the 1933 Act exclude a wide variety of securities (such as those issued by the Government and certain banks) and transactions (such as private ones and certain small offerings) from the registration requirement. 15 U. S. C. §§ 77c and 77d.

       See Feit v. Leasco Data Processing Equipment Corp., 332 F. Supp. 544, 575 (EDNY 1971); R. Jennings & H. Marsh, Securities Regulation 828-829 (4th ed. 1977).

       See Chiarella v. United States, 445 U. S. 222, 234-235 (1980).

       See Ernst & Ernst v. Hochfelder, supra, at 193.

       Cf. Mills v. Electric Auto-Lite Co., 396 U. S. 375, 390-391 (1970) (existence of express provisions for recovery of attorney’s fees in §§ 9(e) and 18(a) of 1934 Act does not preclude award of attorney’s fees under § 14(a) of Act).

       For example, a plaintiff in a § 11 action may be required to post a bond for costs, 15 U. S. C. § 77k(e), and the statute of limitations is only one year, § 77m. In contrast, § 10(b) contains no provision requiring plaintiffs to post security for costs. Also, courts look to the most analogous statute of limitations of the forum State, which is usually longer than the period provided for § 11 actions. See Ernst & Ernst v. Hochfelder, 425 U. S., at 210, n. 29.

       See Fischman v. Raytheon Mfg. Co., 188 F. 2d 783, 786-787 (CA2 1951); 1 A. Bromberg & L. Lowenfels, Securities Fraud & Commodities Fraud §2.4(403), pp. 2:179-2:180 (1982).

       Securities Acts Amendments of 1975: Hearings on S. 249 before the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, 94th Cong., 1st Sess., 1 (1975). As the Conference Report on the legislation explained, the 1975 Amendments were the culmination of “the most searching reexamination of the competitive, statutory, and economic issues facing the securities markets, the securities industry, and, of course, public investors, since the 1930’s.” H. R. Conf. Rep. No. 94-229, p. 91 (1975).

       See, e. g., Schaefer v. First National Bank of Lincolnwood, 509 F. 2d 1287, 1292-1293 (CA7 1975), cert, denied, 425 U. S. 943 (1976); Wolf v. Frank, 477 F. 2d 467, 475 (CA5), cert. denied, 414 U. S. 975 (1973); Jordan Bldg. Corp. v. Doyle, O’Connor & Co., 401 F. 2d 47, 51 (CA7 1968); Ellis v. Carter, 291F. 2d 270, 273-274 (CA9 1961); Fischman v. Raytheon Mfg. Co., supra, at 786-787; Om v. Eastman Dillon, Union Securities & Co., 364 F. Supp. 352, 355 (CD Cal. 1973); Stewart v. Bennett, 359 F. Supp. 878, 886 (Mass. 1973); Trussell v. United Underwriters, Ltd., 228 F. Supp. 757, 765-766 (Colo. 1964). Cf. Gilbert v. Nixon, 429 F. 2d 348, 355 (CA101970) (recognizing overlapping actions but resolving conflict in favor of express remedy where that remedy is “explicit”). Two early District Court decisions had refused to recognize an action under Rule 10b-5 in the face of overlap with §11. Rosenberg v. Globe Aircraft Corp., 80 F. Supp. 123 (ED Pa. 1948); Montague v. Electronic Corp. of America, 76 F. Supp. 933 (SDNY 1948). The latter case was not subsequently followed in the Southern District, e. g., Osborne v. Mallory, 86 F. Supp. 869 (SDNY 1949), and it has no precedential value in light of the Second Circuit’s decision in Fischman v. Raytheon Mfg. Co., supra. The Rosenberg decision stood alone at the time of the 1975 Amendments, and even that decision had not been followed in the District in which it was decided, Premier Industries, Inc. v. Delaware Valley Financial Corp., 185 F. Supp. 694 (ED Pa. 1960), or elsewhere within the same Circuit, Dauphin Corp. v. Redwall Corp., 201 F. Supp. 466 (Del. 1962). Since the 1975 Amendments, the lower courts have continued to recognize that an implied cause of action under § 10(b) can be brought regardless of whether express remedies are available. See, e. g., Berger v. Bishop Investment Corp., 695 F. 2d 302 (CA8 1982); Wachovia Bank & Trust Co. v. National Student Mar

        keting Corp., 209 U. S. App. D. C. 9, 21-26, 650 F. 2d 342, 354-359 (1980), cert. denied, 452 U. S. 954 (1981); Ross v. A. H. Robins Co., 607 F. 2d 545, 551-556 (CA2 1979), cert. denied, 446 U. S. 946 (1980); Pearlstein v. Justice Mortgage Investors, [1979] CCH Fed. Sec. L. Rep. ¶ 96,760, pp. 94, 973-94, 974 (ND Tex. 1978); In re Clinton Oil Company Securities Litigation, [1977-1978] CCH Fed. Sec. L. Rep. ¶ 96,015, p. 91,575 (Kan. 1977).

       Moreover, certain individuals who play a part in preparing the registration statement generally cannot be reached by a § 11 action. These include corporate officers other than those specified in 15 U. S. C. § 77k(a), lawyers not acting as “experts,” and accountants with respect to parts of a registration statement which they are not named as having prepared or certified. If, as Herman & MacLean argues, purchasers in registered offerings were required to rely solely on § 11, they would have no recourse against such individuals even if the excluded parties engaged in fraudulent conduct while participating in the registration statement. The exempted individuals would be immune from federal liability for fraudulent conduct even though § 10(b) extends to “any person” who engages in fraud in connection with a purchase or sale of securities.

       We also reject application of the maxim of statutory construction, expressio unius est exclusio alterius. See H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1173-1174 (tent. ed. 1958); Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv. L. Rev. 285, 290-291 (1963). As we stated in SEC v. C. M. Joiner Leasing Corp., 320 U. S. 344, 350-351 (1943), such canons “long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose.” See generally Silver v. New York Stock Exchange, 373 U. S. 341, 357 (1963) (favoring “an analysis which reconciles the operation of both statutory schemes with one another rather than holding one completely ousted”). We believe the maxim cannot properly be applied to a situation where the remedies redress different misconduct and where the remedial purposes of the Acts would be undermined by a presumption of exclusivity.

       See Addington v. Texas, 441 U. S. 418, 423 (1979).

       See Steadman v. SEC, 450 U. S. 91 (1981).

       See n. 7, supra.

       A higher standard of proof apparently arose in courts of equity when the chancellor faced claims that were unenforceable at law because of the Statute of Wills, the Statute of Frauds, or the parol evidence rule. See Note, Appellate Review in the Federal Courts of Findings Requiring More than a Preponderance of the Evidence, 60 Harv. L. Rev. 111, 112 (1946). Concerned that claims would be fabricated, the chancery courts imposed a more demanding standard of proof. The higher standard subsequently received wide acceptance in equity proceedings to set aside presumptively valid written instruments on account of fraud. See United States v. American Bell Telephone Co., 167 U. S. 224, 240-241 (1897); Southern Development Co. v. Silva, 125 U. S. 247, 249-250 (1888); Colorado Coal Co. v. United States, 123 U. S. 307, 316-319 (1887); Maxwell Land-Grant Case, 121 U. S. 325, 381 (1887) (“We take the general doctrine to be, that when in a court of equity it is proposed to set aside, to annul or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt”). Such proceedings bear little relationship to modern lawsuits under the federal securities laws.

       See SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 194 (1963) (common-law doctrines of fraud which developed around transactions involving tangible items of wealth are ill-suited to the sale of intangibles such as securities); 3 Loss, supra n. 10, at 1435.

       In Vance v. Terrazas, 444 U. S. 252, 266 (1980), we held that the Due Process Clause did not require proof beyond a preponderance of the evidence even in an expatriation proceeding. Cf. Nishikawa v. Dulles, 356 U. S. 129, 135-136 (1958) (in the absence of evidence of congressional intent to adopt a particular standard of proof, Court imposes clear-and-convincing-evidence standard in expatriation cases).

       The Court of Appeals also noted that the proof of scienter required in fraud cases is often a matter of inference from circumstantial evidence. If anything, the difficulty of proving the defendant’s state of mind supports a lower standard of proof. In any event, we have noted elsewhere that circumstantial evidence can be more than sufficient. Michalic v. Cleveland Tankers, Inc., 364 U. S. 325, 330 (1960). See TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 463, and n. 24 (1976).