author: Mr. Justice White Mr. Justice Brennan,

text:
    UNITED STATES v. HAVENS
    No. 79-305.
    Argued March 19, 1980
    Decided May 27, 1980

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, and in Part I of which Stewart and Stevens, JJ., joined, post, p. 629.

      Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General McCree and Assistant Attorney General Heymann.

      William C. Lee argued the cause and filed a brief for respondent.
   Mr. Justice White

delivered the opinion of the Court.

The petition for certiorari filed by the United States in this criminal case presented a single question: whether evidence suppressed as the fruit of an unlawful search .and seizure may nevertheless be used to impeach a defendant's false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the defendant's testimony on direct examination. We issued the writ, 444 U. S. 962 (1979).

I

Respondent was convicted of importing, conspiring to import, and intentionally possessing a controlled substance, cocaine. According to the evidence at his trial, Havens and John McLeroth, both attorneys from Ft. Wayne, Ind., boarded a flight from Lima, Peru, to Miami, Fla. In Miami, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing under his outer clothing. McLeroth implicated respondent, who had previously cleared customs and who was then arrested. His luggage was seized and searched without a warrant. The officers found no drugs but seized a T-shirt from which pieces had been cut that matched the pieces that had been sewn to McLeroth’s T-shirt. The T-shirt and other evidence seized in the course of the search were suppressed on motion prior to trial.

Both men were charged in a three-count indictment, but McLeroth pleaded guilty to one count and testified against Havens. Among other things, he asserted that Havens had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Havens took the stand in his own defense and denied involvement in smuggling cocaine. His direct testimony included the following:

“Q. And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony?
“A. Yes, I did.
“Q. Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru?
“A. I did not.” App. 34.

On cross-examination, Havens testified as follows:

“Q. Now, on direct examination, sir, you testified that on the fourth trip you had absolutely nothing to do with the wrapping of any bandages or tee shirts or anything involving Mr. McLeroth; is that correct?
“A. I don’t — I said I had nothing to do with any wrapping or bandages or anything, yes. I had nothing to do with anything with McLeroth in connection with this cocaine matter.
“Q. And your testimony is that you had nothing to do with the sewing of the cotton swatches to make pockets on that tee shirt?
“A. Absolutely not.
“Q. Sir, when you came through Customs, the Miami International Airport, on October 2, 1977, did you have in your suitcase Size 38-40 medium tee shirts?” Id., at 35.

An objection to the latter question was overruled and questioning continued:

“Q. On that day, sir, did you have in your luggage a Size 38-40 medium man’s tee shirt with swatches of clothing missing from the tail of that tee shirt?
“A. Not to my knowledge.
“Q. Mr. Havens, I’m going to hand you what is Government’s Exhibit 9 for. identification and ask you if this tee shirt was in your luggage on October 2nd, 1975 [sic] ?
“A. Not to my knowledge. No.” Id., at 46.

Respondent Havens also denied having told a Government agent that the T-shirts found in his luggage belonged to McLeroth.

On rebuttal, a Government agent testified that Exhibit 9 had been found in respondent’s suitcase and that Havens claimed the T-shirts found in his bag, including Exhibit 9, belonged to McLeroth. Over objection, the T-shirt was then admitted into evidence, the jury being instructed that the rebuttal evidence should be considered only for impeaching Havens’ credibility.

The Court of Appeals reversed, relying on Agnello v. United States, 269 U. S. 20 (1925), and Walder v. United States, 347 U. S. 62 (1954). The court held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. 592 F. 2d 848 (CA5 1979). We reverse.

II

In Agnello v. United States, supra, a defendant charged with conspiracy to sell a package, of cocaine testified on direct examination that he had possessed the packages involved but did not know what was in them. On cross-examination, he denied ever having seen narcotics and ever having seen a can of cocaine which was exhibited to him and which had been illegally seized from his apartment. The can of cocaine was permitted into evidence on rebuttal. Agnello was convicted and his conviction was affirmed by the Court of Appeals. This Court reversed, holding that the Fourth Amendment required exclusion of the evidence. The Court pointed out that “[i]n his direct examination, Agnello was not asked and did not testify concerning the can of cocaine” and “did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search.” 269 U. S., at 35. The Court also said, quoting from Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920), that the exclusionary rule not only commands that illegally seized evidence “shall not be used before the Court but that it shall not be used at all.” 269 U. S., at 35.

The latter statement has been rejected in our later cases, however, and Agnello otherwise limited. In Walder v. United States, supra, the use of evidence obtained in an illegal search and inadmissible in the Government’s case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v. United States, 232 U. S. 383 (1914), to hold otherwise. Similarly, in Harris v. New York, 401 U. S. 222 (1971), and Oregon v. Hass, 420 U. S. 714 (1975), statements taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. 401 U. S., at 225.

These cases were understood by the Court of Appeals to hold that tainted evidence, inadmissible when offered as part of the Government’s main case, may not be used as rebuttal evidence to impeach a defendant’s credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination; a statement made for the first time on cross-examination may not be so impeached. This approach required the exclusion of the T-shirt taken from Havens’ luggage because, as the Court of Appeals read the record, Havens was asked nothing on his direct testimony about the incriminating T-shirt or about the contents of his luggage; the testimony about the T-shirt, which the Government desired to impeach first appeared on cross-examination, not on direct.

It is true that Agnello involved the impeachment of testimony first brought out on cross-examination and that in Walder, Harris, and Hass, the testimony impeached was given by the defendant while testifying on direct examination. In our view, however, a flat rule permitting only statements on direct examination to be impeached misapprehends the underlying rationale of Walder, Harris, and Hass. These cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence. - Furthermore, in Walder, the Court said that in Agnello, the Government had “smuggled in” the impeaching opportunity in the course of cross-examination. The Court also relied on the statement in Agnello, supra, at 35, that Agnello had done nothing “to justify cross-examination in respect of the evidence claimed to have been obtained by the search.” The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence.

In reversing the District Court in the case before us, the Court of Appeals did not stop to consider how closely the cross-examination about the T-shirt and the luggage was connected with matters gone into in direct examination. If these questions would have been suggested to a reasonably competent cross-examiner by Havens’ direct testimony, they were not “smuggled in”; and forbidding the Government to impeach the answers to these questions by using contrary and reliable evidence in its possession fails to take account of our cases, particularly Harris and Hass. In both cases, the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant’s obligation to speak the truth in response to proper questions. We rejected the notion that the defendant’s constitutional shield against having illegally seized evidence used against him could be “perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” 401 U. S., at 226. See also Oregon v. Hass, supra, at 722, 723. Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case. It was only a “speculative possibility” that also making it unavailable to the government for otherwise proper impeachment would contribute substantially in this respect. Harris v. New York, supra, at 225. Oregon v. Hass, supra, at 723.

Neither Harris nor Hass involved the impeachment of assertedly false testimony first given on cross-examination, but the reasoning of those cases controls this one. There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. Oregon v. Hass, supra, at 722. We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. Bryson v. United States, 396 U. S. 64, 72 (1969); United States v. Knox, 396 U. S. 77 (1969). It is essential, therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant’s obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. Brown v. United States, 356 U. S. 148, 154-155 (1958). He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination. Cf. United States v. Apfelbaum, 445 U. S. 115 (1980); Bryson v. United States, supra; United States v. Knox, supra; United States v. Wong, 431 U. S. 174 (1977). In terms of impeaching a defendant’s seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant’s statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded.

We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and Hass. In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its ease in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.

In arriving at its judgment, the Court of Appeals noted that in response to defense counsel’s objection to the impeaching evidence on the ground that the matter had not been “covered on direct,” the trial court had remarked that “[i]t does not have to be covered on direct.” The Court of Appeals thought this was error since in its view illegally seized evidence could be used only to impeach a statement made on direct examination. As we have indicated, we hold a contrary view; and we do not understand the District Court to have indicated that the Government’s question, the answer to which is sought to be impeached, need not be proper cross-examination in the first instance. The Court of Appeals did not suggest that either the cross-examination or the impeachment of Havens would have been improper absent the use of illegally seized evidence, and we cannot accept respondent’s suggestions that because of the illegal search and seizure, the Government’s questions about the T-shirt were improper cross-examination. McLeroth testified that Havens had assisted him in preparing the T-shirt for smuggling. Havens, in his direct testimony, acknowledged McLeroth’s prior testimony that the cocaine “was taped or draped around his body and so on” but denied that he had “ever engage [d] in that kind of activity with Mr. McLeroth. . . .” This testimony could easily be understood as a denial of any connection with McLeroth’s T-shirt and as a contradiction of McLeroth’s testimony. Quite reasonably, it seems to us, the Government on cross-examination called attention to his answers on direct and then asked whether he had anything to do with sewing the cotton swatches on McLeroth’s T-shirt. This was cross-examination growing out of Havens’ direct testimony; and, as we hold above, the ensuing impeachment did not violate Havens’ constitutional rights.

We reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Brennan,

joined by Mr. Justice Marshall and joined in Part I by Mr. Justice Stewart and Mr. Justice Stevens,

dissenting.

The Court upholds the admission at trial of illegally seized evidence to impeach a defendant’s testimony deliberately elicited by the Government under the cover of impeaching an accused who takes the stand in his own behalf. I dissent. Criminal defendants now told that prosecutors are licensed to insinuate otherwise inadmissible evidence under the guise of cross-examination no longer have the unfettered right to elect whether or not to testify in their own behalf.. Not only is today’s decision an unwarranted departure from prior controlling cases, but, regrettably, it is yet another element in the trend to depreciate the constitutional protections guaranteed the criminally accused.

I

The question before us is not of first impression. The identical issue was confronted in Agnello v. United States, 269 U. S. 20 (1925), which determined — contrary to the instant decision — that it was constitutionally impermissible to admit evidence obtained in violation of the Fourth Amendment to rebut a defendant’s response to a matter first raised during the Government’s cross-examination. Subsequently, Walder v. United States, 347 U. S. 62 (1954), affirmed the introduction of unlawfully acquired evidence to impeach an accused’s false assertions about previous conduct that had been offered during direct testimony. But Walder took pains to draw the distinction between its own holding and Agnello, noting that “the defendant [Walder] went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping [and untrue] claim that he had never dealt in or possessed any narcotics.” 347 U. S., at 65. In “shar[p] contras[t],” in Agnello, “the Government . . . tried to smuggle [the tainted evidence] ... in on cross-examination,” and “elicit[ed] the expected denial. . . .” 347 U. S., at 66.

The Court’s recent decisions have left Agnello undisturbed. Harris v. New York, 401 U. S. 222 (1971), allowed the government to use inadmissible uncounseled statements to impeach direct examination. So, too, Oregon v. Hass, 420 U. S. 714 (1975), reaffirmed Harris in the context of impeachment of the defendant’s direct testimony. Significantly, neither decision intimated that Agnello had lost vitality, or that the distinction emphasized by Walder had been effaced.

The Court’s opinion attempts to discredit Agnello by casting a strawman as its holding, and then demolishing the pitiful scarecrow of its own creation. Specifically, the Court cites Agnello’s quotation of language from Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920), that “illegally seized evidence 'shall not ... be used at all,’ ” ante, at 624, and then refers to the subsequent decisions that indeed permit limited use of that evidence for impeachment. But the actual principle of Agnello, as discerned by Walder, is that the Government may not employ its power of cross-examination to predicate the admission of illegal evidence. In other words, impeachment by cross-examination about — or introduction of— suppressible evidence must be warranted by defendant’s statements upon direct questioning. That principle is not at all inconsistent with later cases holding that the defendant may not take advantage of evidentiary suppression to advance specific perjurious claims as part of his direct case.

Nor is it correct to read Agnello as turning upon the tenuity of the link between the cross-examination involved there and the subject matter of the direct examination. Ante, at 625. The cross-examination about Agnello’s previous connection with cocaine was reasonably related to his direct testimony that he lacked knowledge that the commodity he was transporting was cocaine. 269 U. S., at 29-30. For “[t]he possession by Frank Agnello of the can of cocaine which was seized tended to show guilty knowledge and criminal intent on his part. . . .” Id., at 35. Thus, the constitutional flaw found in Agnello was that the introduction of the tainted evidence had been prompted by statements of the accused first elicited upon cross-examination. And the case was so read in Walder v. United States. That decision specifically stated that a defendant “must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.” 347 U. S., at 65. Since as a matter of the law of evidence it would be perfectly permissible to cross-examine a defendant as to his denial of complicity in the crime, the quoted passage in Walder must be understood to impose a further condition before the prosecutor may refer to tainted evidence — that is, some particular direct testimony by the accused that relies upon “the Government’s disability to challenge his credibility.” Ibid.

In fact, the Court’s current interpretation of Agnello and Walder simply trivializes those decisions by transforming their Fourth Amendment holdings into nothing more than a constitutional reflection of the common-law evidentiary rule of relevance.

Finally, the rationale of Harris v. New York and Oregon v. Hass does not impel the decision at hand. The exclusionary rule exception established by Harris and Hass may be fairly easily cabined by defense counsel’s willingness to forgo certain areas of questioning. But the rule prescribed by the Court in this case passes control of the exception to the Government, since the prosecutor can lay the predicate for admitting otherwise suppressible evidence with his own questioning. To be sure, the Court requires that cross-examination be “proper”; however, traditional evidentiary principles accord parties fairly considerable latitude in cross-examining opposing witnesses. See C. McCormick, Law of Evidence §§ 21-24 (2d ed. 1972). In practical terms, therefore, today’s holding allows even the moderately talented prosecutor to “work in . . . evidence on cross-examination [as it would] in its case in chief. . . .” Walder v. United States, 347 U. S., at 66. To avoid this consequence, a defendant will be compelled to forgo testifying on his own behalf.

“[T]he Constitution guarantees a defendant the fullest opportunity to meet the accusation against him.” Id., at 65; see Harris v. New York, supra, at 229-230 (Brennan, J., dissenting). Regrettably, surrender of that guarantee is the price the Court imposes for the defendant to claim his right not to be convicted on the basis of evidence obtained in violation of the Constitution. I cannot agree that one constitutional privilege must be purchased at the expense of another.

II

The foregoing demonstration of its break with precedent provides a sufficient ground to condemn the present ruling— unleashing, as it does, a hitherto relatively confined exception to the exclusionary rule. But I have a more fundamental difference with the Court’s holding here, which culminates the approach taken in Harris v. New York and Oregon v. Hass. For this sequence of decisions undercuts the constitutional canon that convictions cannot be procured by governmental lawbreaking. See Harris v. New York, 401 U. S., at 226-232 (Brennan, J., dissenting); Oregon v. Hass, 420 U. S., at 724-725 (Brennan, J., dissenting).

“ ‘[I]t is monstrous that courts should aid or abet the lawbreaking police officer.’ ” Id., at 724, quoting Harris v. New York, supra, at 232 (Brennan, J., dissenting). And what is especially troubling about these cases is the mode of analysis employed by the Court. In each, the judgment that tainted evidence may be admitted has been bottomed upon a determination that the “incremental furthering” of constitutional ends would not be sufficient to warrant exclusion of otherwise probative evidence. Ante, at 627; see Oregon v. Hass, supra, at 721; Harris v. New York, supra, at 225.

Of course, “[tjhere is no gainsaying that arriving at the truth is a fundamental goal of our legal system.” Ante, at 626. But it is also undeniable that promotion of that objective must be consonant with other ends, in particular those enshrined in our Constitution. I still hope that the Court would not be prepared to acquiesce in torture or other police conduct that “shocks the conscience” even if it demonstrably advanced the factfinding process. At any rate, what is important is that the Constitution does not countenance police misbehavior, even in the pursuit of truth. The processes of our judicial system may not be fueled by the illegalities of government authorities. See, e. g., Mapp v. Ohio, 367 U. S. 643 (1961).

Nevertheless, the Court has undertaken to strike a “balance” between the “policies” it finds in the Bill of Rights and the “competing interesft]” in accurate trial determinations. Ante, at 627. This balancing effort is completely freewheeling. Far from applying criteria intrinsic to the Fourth and Fifth Amendments, the Court resolves succeeding cases simply by declaring that so much exclusion is enough to deter police misconduct. Ante, at 626, 627; see Oregon v. Hass, supra, at 721; Harris v. New York, supra, at 225; cf. Stone v. Powell, 428 U. S. 465, 486-489 (1976); United States v. Calandra, 414 U. S. 338, 350-352 (1974). That hardly conforms to the disciplined analytical method described as “legal reasoning,” through which judges endeavor to formulate or derive principles of decision that can be applied consistently and predictably.

Ultimately, I fear, this ad hoc approach to the exclusionary rule obscures the difference between judicial decisionmaking and legislative or administrative policymaking. More disturbingly, by treating Fourth and Fifth Amendment privileges as mere incentive schemes, the Court denigrates their unique status as constitutional protections. Yet the efficacy of the Bill of Rights as the bulwark of our national liberty depends precisely upon public appreciation of the special character of constitutional prescriptions. The Court is charged with the responsibility to enforce constitutional guarantees; decisions such as today’s patently disregard that obligation.

Accordingly, I dissent.

       Federal Rule of Evidence 611 does provide for limitation of the scope of cross-examination “to the subject matter of the direct examination and matters affecting the credibility of the witness.” But even these constraints need not be adopted by the States, which are generally free to fashion their own rules of evidence.

       Although evidence of prior inconsistent utterances or behavior may ostensibly be offered merely to attack a defendant’s credibility by contradicting his trial testimony, such evidence can also serve to buttress the affirmative elements of the prosecution’s case. Thus, almost anytime an accused takes the stand, the prosecution will have an opportunity to enhance its case in chief. And it is unrealistic to assume that limiting instructions will afford the defendant significant protection. Cf. Bruton v. United States, 391 U. S. 123 (1968).


source: Caselaw Access Project

author: Mr. Justice Marshall

license: Public Domain

text:
    GOMEZ v. TOLEDO
    No. 79-5601.
    Argued April 16, 1980
    Decided May 27, 1980
    Marshall, J., delivered the opinion for a unanimous Court. RbhN-quist, J., filed a concurring statement, post, p. 642.

      Michael Avery argued the cause for petitioner. With him on the brief was David Budovsky.

      Federico Cedo Alzamora argued the cause and filed a brief for respondent.

        Leon Friedman and Bruce J. Ennis filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

   Mr. Justice Marshall

delivered the opinion of the Court.

The question presented is whether, in an action brought under 42 U. S. C. § 1983 against a public official whose position might entitle him to qualified immunity, a plaintiff must allege that the official has acted in bad faith in order to state a claim for relief or, alternatively, whether the defendant must plead good faith as an affirmative defense.

I

Petitioner Carlos Rivera Gomez brought this action against respondent, the Superintendent of the Police of the Commonwealth of Puerto Rico, contending that respondent had violated his right to procedural due process by discharging him from employment with the Police Department’s Bureau of Criminal Investigation. Basing jurisdiction on 28 U. S. C. § 1343 (3), petitioner alleged the following facts in his complaint. Petitioner had been employed as an agent with the Puerto Rican police since 1968. In April 1975, he submitted a sworn statement to his supervisor in which he asserted that two other agents had offered false evidence for use in a criminal case under their investigation. As a result of this statement, petitioner was immediately transferred from the Criminal Investigation Corps for the Southern Area to Police Headquarters in San Juan, and a few weeks later to the Police Academy in Gurabo, where he was given no investigative authority. In the meantime respondent ordered an investigation of petitioner’s claims, and the Legal Division of the Police Department concluded that all of petitioner's factual allegations were true.

In April 1976, while still stationed at the Police Academy, petitioner was subpoenaed to give testimony in a criminal case arising out of the evidence that petitioner had alleged to be false. At the trial petitioner, appearing as a defense witness, testified that the evidence was in fact false. As a result of this testimony, criminal charges, filed on the basis of information furnished by respondent, were brought against petitioner for the allegedly unlawful wiretapping pf the agents’ telephones. Respondent suspended petitioner in May 1976 and discharged him without a hearing in July. In October, the District Court of Puerto Rico found no probable cause to believe that petitioner was guilty of the allegedly unlawful wiretapping and, upon appeal by the prosecution, the Superior Court affirmed. Petitioner in turn sought review of his discharge before the Investigation, Prosecution, and Appeals Commission of Puerto Rico, which, after a hearing, revoked the discharge order rendered by respondent and ordered that petitioner be reinstated with backpay.

Based on the foregoing factual allegations, petitioner brought this suit for damages, contending that his discharge violated his right to procedural due process, and that it had caused him anxiety, embarrassment, and injury to his reputation in the community. In his answer, respondent denied a number of petitioner’s allegations of fact and asserted several affirmative defenses. Respondent then moved to dismiss the complaint for failure to state a cause of action, see Fed. Rule Civ. Proc. 12(b)(6), and the District Court granted the motion. Observing that respondent was entitled to qualified immunity for acts done in good faith within the scope of his official duties, it concluded that petitioner was required to plead as part of his claim for relief that, in committing the actions alleged, respondent was motivated by bad faith. The absence of any such allegation, it held, required dismissal of the complaint. The United States Court of Appeals for the First Circuit affirmed. 602 F. 2d 1018 (1979).

We granted certiorari to resolve a conflict among the Courts of Appeals. 444 U. S. 1031 (1980). We now reverse.

II

Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” 42 U. S. C. § 1983. This statute, enacted to aid in “ The preservation of human liberty and human rights,’ ” Owen v. City of Independence, 445 U. S. 622, 636 (1980), quoting Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (Rep. Shellabarger), reflects a congressional judgment that a “damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees,” 445 U. S., at 651. As remedial legislation, § 1983 is to be construed generously to further its primary purpose. See 445 U. S., at 636.

In certain limited circumstances, we have held that public officers are entitled to a qualified immunity from damages liability under § 1983. This conclusion has been based on an unwillingness to infer from legislative silence a congressional intention to abrogate immunities that were both “well established at common law” and “compatible with the purposes of the Civil Rights Act.” 445 U. S., at 638. Findings of immunity have thus been “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, 424 U. S. 409, 421 (1976). In Pierson v. Ray, 386 U. S. 547, 555 (1967), for example, we concluded that a police officer would be “excus[ed] from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” And in other contexts we have held, on the basis of “[c]ommon-law tradition . . . and strong public-policy reasons,” Wood v. Strickland, 420 U. S. 308, 318 (1975), that certain categories of executive officers should be allowed qualified immunity from liability for acts done on the basis of an objectively reasonable belief that those acts were lawful. See Procunier v. Navarette, 434 U. S. 555 (1978) (prison officials); O’Connor v. Donaldson, 422 U. S. 563 (1975) (superintendent of state hospital); Wood v. Strickland, supra (local school board members); Scheuer v. Rhodes, 416 U. S. 232 (1974) (state Governor and other executive officers). Cf. Owen v. City of Independence, supra (no qualified immunity for municipalities).

Nothing in the language or legislative history of § 1983, however, suggests that in an action brought against a public official whose position might entitle him to immunity if he acted in good faith, a plaintiff must allege bad faith in order to state a claim for relief. By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe v. Pape, 365 U. S. 167, 171 (1961). Petitioner has made both of the required allegations. He alleged that his discharge by respondent violated his right to procedural due process, see Board of Regents v. Roth, 408 U. S. 564 (1972), and that respondent acted under color of Puerto Rican law. See Monroe v. Pape, supra, at 172-187.

Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff’s cause of action; instead we have described it as a defense available to the official in question. See Procunier v. Navarette, supra, at 562; Pierson v. Ray, supra, at 556, 557; Butz v. Economou, 438 U. S. 478, 508 (1978). Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed. Rule Civ. Proc. 8 (c) (defendant must plead any “matter constituting an avoidance or affirmative defense”) ; 5 C. Wright & A. Miller, Federal Practice and Procedure § 1271 (1969). It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith.

Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant. Thus we have stated that “[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” Scheuer v. Rhodes, supra, at 247-248. The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether “[t]he official himself [is] acting sincerely and with a belief that he is doing right,” Wood v. Strickland, supra, at 321. There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will even claim that he does. The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official’s belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law.

The decision of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Rehnquist joins the opinion of the Court, reading it as he does to leave open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity.

       The complaint originally named the Commonwealth of Puerto Rico and the police of the Commonwealth of Puerto Rico as additional defendants, but petitioner consented to their dismissal from the action. See App. 14, n. 1.

       That section grants the federal district courts jurisdiction “[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for, equal rights of citizens or of all persons within the jurisdiction of the United States.”

       At this stage of the proceedings, of course, all allegations of the complaint must be accepted as true.

       This decision was in accord with earlier decisions in that Circuit. See, e. g., Gaffney v. Silk, 488 F. 2d 1248 (1973); Kostka v. Hogg, 560 F. 2d 37 (1977); Maiorana v. MacDonald, 596 F. 2d 1072 (1979).

       Other Courts of Appeals have held that the burden of pleading a defense of good faith lies with the defendant. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F. 2d 1339, 1348 (CA2 1972) ; Skehan v. Board of Trustees of Bloomsburg State College, 538 F. 2d 53, 61-62 (CA3) (en banc), cert. denied, 429 U. S. 979 (1976); Bryan v. Jones, 530 F. 2d 1210, 1213 (CA5) (en banc), cert. denied, 429 U. S. 865 (1976); Jones v. Perrigan, 459 F. 2d 81, 83 (CA6 1972); Tritsis v. Backer, 501 F. 2d 1021, 1022-1023 (CA7 1974); Landrum v. Moats, 576 F. 2d 1320, 1324-1325, 1329 (CA8), cert. denied, 439 U. S. 912 (1978); Martin v. Duffie, 463 F. 2d 464, 468 (CA10 1972); Dellums v. Powell, 184 U. S. App. D. C. 275, 284-285, 566 F. 2d 167, 175-176 (1977), cert. denied, 438 U. S. 916 (1978). Cf. McCray v. Burrell, 516 F. 2d 357, 370 (CA4 1975) (en banc) (burden of proof), cert. dism’d, 426 U. S. 471 (1976); Gilker v. Baker, 576 F. 2d 245 (CA9 1978) (same).

       Section 1983 provides in full: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       Actions under Puerto Rican law come within both § 1983 and its jurisdictional predicate, 28 U. S. C. § 1343 (3). Examining Board v. Flores de Otero, 426 U. S. 672 (1976).

       As then Dean Charles Clark stated over 40 years ago: “It seems to be considered only fair that certain types of things which in common law pleading were matters in confession and avoidance — i. e., matters which seemed more or less to admit the general complaint and yet to suggest some other reason why there was no right — must be specifically pleaded in the answer, and that has been a general rule.” ABA, Proceedings Institute at Washington and Symposium at New York City on the Federal Rules of Civil Procedure 49 (1939). See also 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1270-1271 (1969). Cf. FTC v. A. E. Staley Mfg. Co., 324 U. S. 746, 759 (1945) (good-faith defense under Robinson-Patman Act); Barcellona v. Tiffany English Pub., Inc., 597 F. 2d 464, 468 (CA5 1979); Cohen v. Ayers, 596 F. 2d 733, 739-740 (CA7 1979); United States v. Kroll, 547 F. 2d 393 (CA7 1977).


author: Per Curiam.

text:
    CATALANO, INC., et al. v. TARGET SALES, INC., et al.
    No. 79-1101.
    Decided May 27, 1980
   Per Curiam.

Petitioners, a conditionally certified class of beer retailers in the Fresno, Cal., area, brought suit against respondent wholesalers alleging that they had conspired to eliminate short-term trade credit formerly granted on beer purchases in violation of § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1. The District Court entered an interlocutory order, which among other things, denied petitioners’ “motion to declare this a case of per se illegality,” and then certified to the United States Court of Appeals for the Ninth Circuit, pursuant to 28 U. S. C. § 1292 (b), the question whether the alleged agreement among competitors fixing credit terms, if proved, was unlawful on its face. The Court of Appeals granted permission to appeal, and, with one judge dissenting, agreed with the District Court that a horizontal agreement among competitors to fix credit terms does not necessarily contravene the antitrust laws. 605 F. 2d 1097 (1979). We grant the petition for certiorari and reverse the judgment of the Court of Appeals,

For purposes of decision we assume the following facts alleged in the amended complaint to be true. Petitioners allege that, beginning in early 1967, respondent wholesalers secretly agreed, in order to eliminate competition among themselves, that as of December 1967 they would sell to retailers only if payment were made in advance or upon delivery. Prior to the agreement, the wholesalers had extended credit without interest up to the 30- and 42-day limits permitted by state law. According to the petition, prior to the agreement wholesalers had competed with each other with respect to trade credit, and the credit terms for individual retailers had varied substantially. After entering into the agreement, respondents uniformly refused to extend any credit at all.

The Court of Appeals decided that the credit-fixing agreement should not be characterized as a form of price fixing. The court suggested that such an agreement might actually enhance competition in two ways: (1) “by removing a barrier perceived by some sellers to market entry,” and (2) “by the increased visibility of price made possible by the agreement to eliminate credit.” Id., at 1099.

In dissent, Judge Blumenfeld expressed the opinion that an agreement to eliminate credit was a form of price fixing. Id., at 1104. He reasoned that the extension of interest-free credit is an indirect price reduction and that the elimination of such credit is therefore a method of raising prices:

“The purchase of goods creates an obligation to pay for them. Credit is one component of the overall price paid for a product. The cost to a retailer of purchasing goods consists of (1) the amount he has to pay to obtain the goods, and (2) the date on which he has to make that payment. If there is a differential between a purchase for cash and one on time, that difference is not interest but part of the price. See Hogg v. Ruffner, 66 U. S. (1 Black) 115, 118-119 . . . (1861). Allowing a retailer interest-free short-term credit on beer purchases effectively reduces the price of beer, when compared to a requirement that the retailer pay the same amount immediately in cash; and, conversely, the elimination of free credit is the equivalent of a price increase.” Id., at 1103.

It followed, in his view, that the agreement was just as plainly anticompetitive as a direct agreement to raise prices. Consequently, no further inquiry under the rule of reason, see National Society of Professional Engineers v. United States, 435 U. S. 679 (1978), was required in order to establish the agreement's unlawfulness.

Our cases fully support Judge Blumenfeld’s analysis and foreclose both of the possible justifications on which the majority relied. In Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 7-8 (1979), we said:

“In construing and applying the Sherman Act's ban against contracts, conspiracies, and combinations in restraint of trade, the Court has held that certain agreements or practices are so ‘plainly anticompetitive,' National Society of Professional Engineers v. United States, 435 U. S. 679, 692 (1978); Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 50 (1977), and so often ‘lack . . . any redeeming virtue,’ Northern Pac. R. Co. v. United States, 356 U. S. 1, 5 (1958), that they are conclusively presumed illegal without further examination under the rule of reason generally applied in Sherman Act cases.”

A horizontal agreement to fix prices is the archetypal example of such a practice. It has long been settled that an agreement to fix prices is unlawful per se. It is no excuse that the prices fixed are themselves reasonable. See, e. g., United States v. Trenton Potteries Co., 273 U. S. 392, 397-398 (1927); United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 340-341 (1897). In United States v. Socony-Vacuum Oil Co., 310 U. S. 160 (1940), we held that an agreement among competitors to engage in a program of buying surplus gasoline on the spot market in order to prevent prices from falling sharply was unlawful without any inquiry into the reasonableness of the program, even though there was no direct agreement on the actual prices to be maintained. In the course of the opinion, the Court made clear that

“the machinery employed by a combination for price-fixing is immaterial.
“Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” Id., at 223.

Thus, we have held agreements to be unlawful per se that had substantially less direct impact on price than the agreement alleged in this ease. For example, in Sugar Institute v. United States, 297 U. S. 553, 601-602 (1936), the Court held unlawful an agreement to adhere to previously announced prices and terms of sale, even though advance price announcements are perfectly lawful and even though the particular prices and terms were not themselves fixed by private agreement. Similarly, an agreement among competing firms of professional engineers to refuse to discuss prices with potential customers until after negotiations have resulted in the initial selection of an engineer was held unlawful without requiring further inquiry. National Society of Professional Engineers v. United States, supra, at 692-693. Indeed, a horizontal agreement among competitors to use a specific method of quoting prices may be unlawful. Cf. FTC v. Cement Institute, 333 U. S. 683, 690-693 (1948).

It is virtually self-evident that extending interest-free credit for a period of time is equivalent to giving a discount equal to the value of the use of the purchase price for that period of time. Thus, credit terms must be characterized as an inseparable part of the price. An agreement to terminate the practice of giving credit is thus tantamount to an agreement to eliminate discounts, and thus falls squarely within the traditional per se rule against price fixing. While it may be that the elimination of a practice of giving variable discounts will ultimately lead in a competitive market to corresponding decreases in the invoice price, that is surely not necessarily to be anticipated. It is more realistic to view an agreement to eliminate credit sales as extinguishing one form of competition among the sellers. In any event, when a particular concerted activity entails an obvious risk of anti-competitive impact with no apparent potentially redeeming value, the fact that a practice may turn out to be harmless in a particular set of circumstances will not prevent its being declared unlawful per se.

The majority of the panel of the Court of Appeals suggested, however, that a horizontal agreement to eliminate credit sales may remove a barrier to other sellers who may wish to enter the market. But in any case in which competitors are able to increase the price level or to curtail production by agreement, it could be argued that the agreement has the effect of making the market more attractive to potential new entrants. If that potential justifies horizontal agreements among competitors imposing one kind of voluntary restraint or another on their competitive freedom, it would seem to follow that the more successful an agreement is in raising the price level, the safer it is from antitrust attack. Nothing could be more inconsistent with our cases.

Nor can the informing function of the agreement, the increased price visibility, justify its restraint on the individual wholesaler’s freedom to select his own prices and terms of sale. For, again, it is obvious that any industrywide agreement on prices will result in a more accurate understanding of the terms offered by all parties to the agreement. As the Sugar Institute case demonstrates, however, there is a plain distinction between the lawful right to publish prices and terms of sale, on the one hand, and an agreement among competitiors limiting action with respect to the published prices, on the other.

Thus, under the reasoning of our cases, an agreement among competing wholesalers to refuse to sell unless the retailer makes payment in cash either in advance or upon delivery is “plainly anticompetitive.” Since it is merely one form of price fixing, and since price-fixing agreements have been adjudged to lack any “redeeming virtue,” it is conclusively presumed illegal without further examination under the rule of reason.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Title 28 U. S. C. § 1292 (b) provides:
      “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.”

       In pertinent part, the District Judge's order read as follows:
      “ 'In the opinion of the Court, this order involves a controlling question of law, whether an agreement among competitors to eliminate the extension of trade credit constitutes a per se violation of Section 1 of the Sherman Act (15 U. S. C. § 1), as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order will materially advance the ultimate termination of the litigation since this issue is central to the conduct of discovery and trial of this case.' ” App. D to Pet. for Cert.

       The District Court had also granted summary judgment against two plaintiffs for failure to establish injury in fact. Those plaintiffs appealed separately. The Court of Appeals consolidated their appeal with the appeal taken pursuant to § 1292 (b) and unanimously reversed that portion of the District Court's order. No review is sought in this Court of that ruling.

       See Record 152.

       Cal. Bus. & Prof. Code Ann. §25509 (West Supp. 1980).

       Pet. for Cert. 4.

       Senior District Judge for the District of Connecticut, sitting by designation.

       Respondents nowhere suggest a procompetitive justification for a horizontal agreement to fix credit. Their argument is confined to disputing that settled case law establishes that such an agreement is unlawful on its face.

       The quotation from Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958), is drawn from the following passage: “[TJhere are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of -per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation . . . — an inquiry so often wholly fruitless when undertaken. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing. . . .”

       The Court there held that an agreement to use a multiple basing point pricing system was an unfair method of competition prohibited by § 5 of the Federal Trade Commission Act, 15 U. S. C. § 45, even though the same conduct would also violate § 1 of the Sherman Act.

       See Fortner Enterprises, Inc. v. United States Steel Corp., 394 U. S. 495, 507 (1969): “In the usual sale on credit the seller, a single individual or corporation, simply makes an agreement determining when and how much he will be paid for his product. In such a sale the credit may constitute such an inseparable part of the purchase price for the item that the entire transaction could be considered to involve only a single product.”
      See also G. Lamb & C. Shields, Trade Association Law and Practice 129 (rev. ed. 1971) (“Credit terms are increasingly viewed as elements of price, and any interference with the elements of price is regarded as illegal per se under the Sherman Act”). Cf. P. Areeda, Antitrust Analysis 878 (2d ed. 1974) (“To charge cash and credit customers the same price is, economically speaking, to discriminate against the former”); Hogg v. Ruffner, 1 Black 115, 118-119 (1861).

       Cf. Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588, 600 (1925), in which the Court upheld an exchange of information concerning credit in order to prevent fraud on the members of the association, but also noted that “[t]he evidence falls far short of establishing any understanding on the basis of which credit was to be extended to customers or that any co-operation resulted from the distribution of this information, or that there were any consequences from it other than such as would naturally ensue from the exercise of the individual judgment of manufacturers in determining, on the basis of available information, whether to extend credit or to require cash or security from any given customer.”
      See also Swift & Co. v. United States, 196 U. S. 375, 392, 394 (1905);
        Wall Products Co. v. National Gypsum Co., 326 F. Supp. 295 (ND Cal. 1971).


author: Per Curiam. Mr. Justice Marshall,

text:
    HARRIS, SECRETARY OF HEALTH AND HUMAN SERVICES v. ROSARIO et al.
    No. 79-1294.
    Decided May 27, 1980
   Per Curiam.

The Aid to Families with Dependent Children program (AFDC), 49 Stat. 627, as amended, 42 U. S. C. § 601 et seq., provides federal financial assistance to States and Territories to aid families with needy dependent children. Puerto Rico receives less assistance than do the States, 42 U. S. C. §§ 1308 (a)(1), 1396d (b) (1976 ed. and Supp. II). Appellees, AFDC recipients residing in Puerto Rico, filed this class action against the Secretary of Health, Education, and Welfare (now the Secretary of Health and Human Services) in March 1977 in the United States District Court for the District of Puerto Rico; they challenged the constitutionality of 42 U. S. C. §§ 1308 and 1396d (b), claiming successfully that the lower level of AFDC reimbursement provided to Puerto Rico violates the Fifth Amendment's equal protection guarantee.

We disagree. Congress, which is empowered under the Territory Clause of the Constitution, U. S. Const., Art. IV, § 3, cl. 2, to “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States,” may treat Puerto Rico differently from States so long as there is a rational basis for its actions. In Califano v. Torres, 435 U. S. 1 (1978) (per curiam) , we concluded that a similar statutory-classification was rationally grounded on three factors: Puerto Rican residents do not contribute to the federal treasury; the cost of treating Puerto Rico as a State under the statute would be high; and greater benefits could disrupt the Puerto Rican economy. These same considerations are forwarded here in support of §§ 1308 and 1396d (b), Juris. Statement 12-14, and we see no reason to depart from our conclusion in Torres that they suffice to form a rational basis for the challenged statutory classification.

We reverse.

So ordered.

Mr. Justice Brennan and Mr. Justice Blackmun, not now being persuaded that the Court’s summary disposition in Califano v. Torres, 435 U. S. 1 (1978), so clearly controls this case, would note probable jurisdiction and set the case for oral argument.

Mr. Justice Marshall,

dissenting.

The Court today rushes to resolve important legal issues without full briefing or oral argument. The sole authority cited for the majority’s result is another summary decision by this Court. The need for such haste is unclear. The dangers of such decisionmaking are clear, however, as the Court’s analysis is, in my view, ill-conceived in at least two respects.

The first question that merits plenary attention is whether Congress, acting pursuant to the Territory Clause of the Constitution, U. S. Const., Art. IV, § 3, cl. 2, “may treat Puerto Rico differently from States so long as there is a rational basis for its actions.” Ante, at 651-652. No authority is cited for this proposition. Our prior decisions do not support such a broad statement.

It is important to remember at the outset that Puerto Ricans are United States citizens, see 8 U. S. C. § 1402, and that different treatment to Puerto Rico under AFDC may well affect the benefits paid to these citizens. While some early opinions of this Court suggested that various protections of the Constitution do not apply to Puerto Rico, see, e. g., Downes v. Bidwell, 182 U. S. 244 (1901); Balzac v. Porto Rico, 258 U. S. 298 (1922), the present validity of those decisions is questionable. See Torres v. Puerto Rico, 442 U. S. 465, 475-476 (1979) (Brennaan, J., concurring in judgment). We have already held that Puerto Rico is subject to the Due Process Clause of either the Fifth or Fourteenth Amendment, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 668-669, n. 5 (1974), and the equal protection guarantee of either the Fifth or the Fourteenth Amendment, Examining Board v. Flores de Otero, 426 U. S. 572, 599-601 (1976). The Fourth Amendment is also fully applicable to Puerto Rico, either directly or by operation of the Fourteenth Amendment, Torres v. Puerto Rico, supra, at 471. At least four Members of this Court are of the view that all provisions of the Bill of Rights apply to Puerto Rico. 442 U. S., at 475-476 (Brennan, J., joined by Stewart, Marshall, and Blackmun, JJ., concurring in judgment).

Despite these precedents, the Court suggests today, without benefit of briefing or argument, that Congress needs only a rational basis to support less beneficial treatment for Puerto Rico, and the citizens residing there, than is provided to the States and citizens residing in the States. Heightened scrutiny under the equal protection component of the Fifth Amendment, the Court concludes, is simply unavailable to protect Puerto Rico or the citizens who reside there from discriminatory legislation, as long as Congress acts pursuant to the Territory Clause. Such a proposition surely warrants the full attention of this Court before it is made part of our constitutional jurisprudence.

Califano v. Torres, 435 U. S. 1 (1978) (per curiam), the only authority upon which the majority relies, does not stand for the proposition the Court espouses today. In that decision, also reached through summary procedures and over the objections of two Members of the Court, see id., at 5 (statement of Brennan, J.; statement of Marshall, J.), the Court held that the right to travel was not violated by a provision of the Social Security Act pursuant to which persons residing in the United States lost their supplemental security income benefits upon moving to Puerto Rico. While the plaintiffs in that case had also challenged the provision on equal protection grounds, the District Court relied entirely on the right to travel, and therefore no equal protection question was before this Court. The Court merely referred to the equal protection claim briefly in a footnote, id., at 3, n. 4. Observing that Puerto Rico’s relationship with the United States was unique, the Court simply noted that the District Court had “apparently acknowledged that Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it.” Ibid. , That Puerto Rico has an unparalleled relationship with the United States does not lead ineluctably to the legal principle asserted here. At most, reading more into that single footnote of dictum than it deserves, Califano v. Torres may suggest that under the equal protection component of the Due Process Clause of the Fifth Amendment, Puerto Rico may be treated differently from the States if there is a rational basis for the discrimination when Congress enacts a law providing for governmental payments of monetary benefits. See id., at 5. That is a more limited view than is asserted in this case, but even that position should be reached only after oral argument and full briefing. Ibid, (statement of Marshall, J.).

I also object to the Court’s reliance on the effect greater benefits could have on the Puerto Rican economy. Ante, at 652. See also Califano v. Torres, supra, at 5, n. 7. This rationale has troubling overtones. It suggests that programs designed to help the poor should be less fully applied in those areas where the need may be the greatest, simply because otherwise the relative poverty of recipients compared to other persons in the same geographic area will somehow be upset. Similarly, reliance on the fear of disrupting the Puerto Rican economy implies that Congress intended to preserve or even strengthen the comparative economic position of the States vis-a-vis Puerto Rico. Under this theory, those geographic units of the country which have the strongest economies presumably would get the most financial aid from the Federal Government since those units would be the least likely to be “disrupted.” Such an approach to a financial assistance program is not so clearly rational as the Court suggests, and there is no citation by the Court to any suggestion in the legislative history that Congress had these economic concerns in mind when it passed the portion of the AFDC program presently being challenged. Nor does appellant refer to any evidence in the record supporting the notion that such a speculative fear of economic disruption is warranted. In my view it is by no means clear that the discrimination at issue here could survive scrutiny under even a deferential equal protection standard.

Ultimately this case raises the serious issue of the relationship of Puerto Rico, and the United States citizens who reside there, to the Constitution. An issue of this magnitude deserves far more careful attention than it has received in Califano v. Torres and in the present case. I would note probable jurisdiction and set the case for oral argument. Accordingly, I dissent from the Court’s summary disposition.

      For example, the Secretary estimates that the additional cost of treating Puerto Rico as a State for AFDC purposes alone would be approximately $30 million per year, and, if the decision below were to apply equally to various other reimbursement programs under the Social Security Act, the total annual cost could exceed $240 million. Juris. Statement 12, n. 13.

       The District Court certified the plaintiff class as “all United States citizens residing in the Commonwealth of Puerto Rico, which [sic] are recipients of public assistance under the Aid to the Families with Dependent Children category and that have been, are and will be discriminated [against] solely on the basis of their residence.” App. to Juris. Statement 2a.
      It is unclear whether the Court’s Territory Clause analysis is intended to apply only where the discrimination is against the Government of Puerto Rico and not against persons residing there. Such a distinction would lack substance in any event. The discrimination against Puerto Rico under the AFDC program must also operate as a discrimination against United States citizens residing in Puerto Rico who would benefit, one way or another, from such increased federal aid to Puerto Rico.

       The District Court concluded that “[w]e are not here concerned with the alleged power of Congress to establish disparate treatment towards the United States citizens who reside in Puerto Rico. Rather, the focus of our attention should be directed to determining whether a constitutional right of a citizen of the United States has been improperly penalized while he is within one of these States. We see this as the more relevant framing of the issues because although Plaintiff lost his benefits while physically in Puerto Rico, the statutory prohibitions that permitted this result came into play from the very moment when they exerted their force upon Plaintiff. From this standpoint, Plaintiff is in the same position now as if he would have remained in Connecticut and brought a declaratory judgment suit there. . . .” Torres v. Mathews, 426 F. Supp. 1106, 1110 (1977) (emphasis deleted).

       The question presented in Califano v. Torres was whether the sections of the Social Security Act excluding residents of Puerto Rico from the Supplemental Security Income program “deny due process to individuals who upon moving to Puerto Rico lose the benefits to which they were entitled while residing in the United States.” Juris. Statement, O. T. 1977, No. 77-88,p. 2. See also id., at 9-11.

       The accuracy of this assessment of the District Court’s opinion is open to question. See n. 2, supra.

       Appellant’s suggestion that increased federal reimbursements might not go to the class members at all but instead be used to provide other services or to lower taxes, see Juris. Statement 10, demonstrates the speculative nature of this fear of economic disruption.