source: Caselaw Access Project

author: Justice Blackmun Justice Rehnquist,

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text:
    CLEAVINGER et al. v. SAXNER et al.
    No. 84-732.
    Argued October 16, 1985
    Decided December 10, 1985
    Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and White, J., joined, post, p. 208.

      Deputy Solicitor General Geller argued the cause for petitioners. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, Samuel A. Alito, Jr., and Gloria C. Phares.

      G. Flint Taylor argued the cause for respondents. With him on the brief was Charles W. Hoffman.

        John K. Van de Kam/p, Attorney General of California, Steve White, Chief Assistant Attorney General, Arnold 0. Overoye, Assistant Attorney General, William George Prahl, Supervising Deputy Attorney General, Susan J. Orton, Deputy Attorney General, Charles A. Graddick, Attorney General of Alabama, Michael A. Lilly, Attorney General of Hawaii, and A. G. McClintock, Attorney General of Wyoming, filed a brief for the State of California et al. as amici curiae urging reversal.

        Stephen M. Latimer filed a brief for Prisoners’ Legal Services of New York, Inc., et al. as amici curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court.

This case presents the issue whether members of a federal prison’s Institution Discipline Committee, who hear cases in which inmates are charged with rules infractions, are entitled to absolute, as distinguished from qualified, immunity from personal damages liability for actions violative of the United States Constitution.

I

Respondents David Saxner and Alfred Cain, Jr., in January 1975 were inmates at the Federal Correctional Institution at Terre Haute, Ind. They were serving 4- and 5-year sentences, respectively, and each was within 18 months of a possible release date. Each was soon to appear before the parole board. The prison-conduct record of each was good.

On January 6, 1975, William Lowe, a Negro inmate at Terre Haute died in the prison hospital. He was the first of four Negro inmates to die there within the ensuing 7-month period. A work stoppage to protest Lowe’s death took place at the prison on January 7 and 8. Respondent Saxner, a white inmate who had served as a “jailhouse lawyer,” and respondent Cain, a Negro inmate who was the librarian for the African and New World Cultural Society, assert that neither of them participated in the stoppage. See Brief for Respondents 1. Each, however, was active in gathering information about Lowe’s death and about conditions at the prison hospital, and in passing that information to the press, Members of Congress, prison officials, and Saxner’s attorney. On February 14, respondents were cited in separate Incident Reports for encouraging other inmates to engage in work stoppage. App. 50, 52. Each was immediately placed in administrative segregation, that is, removed from the general inmate population, and assigned to a separate cell in an unused part of the hospital. See 28 CFR § 541.20(b) (1985).

On the following day, each respondent was given a copy of the Bureau of Prisons Policy Statement 7400.5c (subject: Inmate Discipline) (Oct. 4, 1974). See App. 25-49. Saxner signed a written notice which explained his rights at a hearing to be held before an Institution Discipline Committee. Among these were the right to have a written copy of the charge; the right to have a member of the prison staff represent him; the rights, except where institutional safety would be jeopardized, to be present at the hearing, to call witnesses, and to submit documentary evidence; and the right to receive a written explanation of the committee’s decision. Id., at 54. Although the record does not so disclose, we assume that respondent Cain received a similar notice at that time.

Respondents were brought before the Institution Discipline Committee on February 21. The committee was composed of petitioners Theodore Cleavinger, Associate Warden, as chairman; Marvin Marcadis, correctional supervisor; and Tom P. Lockett, chief of case management.

Respondent Saxner was accompanied at the hearing by Ralph Smith, staff counselor, whom Saxner had selected to represent him. After reading the charge and reviewing Saxner’s rights, the committee introduced Saxner’s Incident Report and three documents found in his cell. These were, respectively, a “press release” Saxner had sent to 50 newspapers; a four-page document which detailed interviews with inmates about their medical treatment at the prison hospital; and a letter from Saxner to an American Civil Liberties Union lawyer, Saunders, which enclosed the other two documents and which discussed medical conditions, possible litigation on behalf of the Lowe family and other inmates, communications with the press, and the obtaining of local counsel. The press release, among other things, advocated administrative approval of a prisoners’ union and amnesty for those who had participated in the work stoppage. Id., at 81. Neither the investigating officer nor the charging officer nor any guard was called as a witness. Saxner, however, testified and introduced affidavits of several inmates. His request that he be permitted to call inmates to confirm that he did not encourage any work stoppage was denied on the ground that such testimony would be cumulative. While admitting that he had written the press release and had mailed it to persons outside the prison without authorization, Saxner asserted his innocence on the specific charge referred. Id., at 60, 71.

The committee found respondent Saxner guilty of encouraging a work stoppage. Also, although not specifically so charged, he was found guilty of unauthorized use of the mail and of possession of contraband, that is, material advocating an illegal prisoners’ union. The committee ordered that Saxner be placed in administrative detention and forfeit 84 days of “good time.” His transfer to another institution was recommended. Id., at 57.

Respondent Cain’s hearing took place the same day before the same committee and immediately prior to Saxner’s hearing. Id., at 64. He was accompanied by J. R. Alvarado, a staff representative. He was advised of his rights. His Incident Report was produced. Two documents found in his cell (Saxner’s letter to Saunders and a manuscript concerning “Ideals and Proposals of the Prisoner Labor Union”) were introduced. Cain testified and denied that he had encouraged inmates not to work. He requested the right to cross-examine his accusers, but no other witness was called.

At the conclusion of Cain’s hearing, the committee found him guilty of encouraging a work stoppage and, although not specifically so charged, of possessing contraband, that is, “inflammatory material. . . supporting disruptive conduct in the institution.” Id., at 65. The committee ordered that Cain be placed in administrative detention and forfeit 96 days of “good time.” His transfer to another institution also was recommended. Ibid.

Respondents appealed to the Warden of the institution. The Warden ordered their release from administrative detention, restored the good time, and directed that each respondent’s record carry a notation that “the incident not reflect unfavorably” upon consideration for parole. Id., at 74, 77. The Warden refused, however, to expunge respondents’ records. Ibid. Saxner and Cain were released into the general prison population on March 21.

Respondents next appealed to the Regional Director of the Bureau of Prisons. The Regional Director ruled that the disciplinary report, the action by the committee on the incident, and material relevant thereto were to be expunged from each respondent’s record. Id., at 79, 80. Thus, in the end, after these appeals, respondents obtained all the administrative relief they sought. But in the meantime, for a definite interval, each had been condemned (improperly as it turned out) to “administrative detention.”

Respondent Saxner was paroled and released in April 1975. Respondent Cain was granted parole in June and released in December.

Meanwhile, in March 1975, respondents brought suit in the United States District Court for the Southern District of Indiana against petitioners, the Terre Haute Warden, and the institution’s administrative supervisor. Their third amended complaint alleged that the defendants had violated their rights under the First, Fourth, Fifth, Sixth, and Eighth Amendments. Id., at 12. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Respondents sought declaratory and injunctive relief and compensatory damages. App. 22.

The District Court granted petitioners’ motion to dismiss the complaint on the ground that their functioning as hearing officers entitled them to absolute immunity. Nearly two years later, however, in April 1981, the District Court, on reconsideration, reinstated the suit in light of its controlling court’s decision in Mary v. Ramsden, 635 F. 2d 590 (CA7 1980), where the Court of Appeals held that members of a disciplinary committee at a Wisconsin juvenile facility were entitled to only qualified immunity. App. 23.

The case then was tried to a jury. In response to special interrogatories, the jury found that petitioners had violated respondents’ Fifth Amendment due process rights. The jury awarded each respondent $1,500 compensatory damages against each petitioner, or a total of $4,500; each petitioner was thus subjected to liability totaling $3,000. Id., at 9.

Petitioners’ subsequent motion for judgment notwithstanding the verdict was denied. They appealed, contending, among other things, that, as members of the discipline committee, they were entitled to absolute immunity.

The United States Court of Appeals for the Seventh Circuit, by a divided vote, affirmed. Saxner v. Benson, 727 F. 2d 669 (1984). It held that petitioners’ claim for absolute immunity was foreclosed by Seventh Circuit precedent denying such immunity to state correctional officers serving in a similar capacity. Id., at 670. See Redding v. Fairman, 111 F. 2d 1105, 1117 (1983), cert. denied, 465 U. S. 1025 (1984); Chavis v. Rowe, 643 F. 2d 1281, 1288, cert. denied sub nom. Boles v. Chavis, 454 U. S. 907 (1981); Mary v. Ramsden, 635 F. 2d, at 600. Petitioners’ request for rehearing en banc was denied by a vote of 5 to 4. App. to Pet. for Cert. 36a.

Because of the importance of the issue, and because the Seventh Circuit rulings, although consistent with Jihaad v. O’Brien, 645 F. 2d 556, 561 (CA6 1981), were claimed to be in some conflict with the en banc decision of the Fourth Circuit in Ward v. Johnson, 690 F. 2d 1098 (1982), we granted certiorari. 469 U. S. 1206 (1985).

I — I I — I

A. This Court has observed: Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U. S. 547, 553-554 (1967). The Court specifically has pronounced and followed this doctrine of the common law for more than a century. In Bradley v. Fisher, 13 Wall. 335 (1872), it ruled that a federal judge may not be held accountable in damages for a judicial act taken within his court’s jurisdiction. Such immunity applies “however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” Id., at 347. “Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed.” Ibid. In Pierson v. Ray, supra, the Court held that absolute immunity shielded a municipal judge who was sued for damages under 42 U. S. C. § 1983 by clergymen who alleged that he had convicted them unconstitutionally for a peaceful protest against racial segregation. The Court stressed that such immunity was essential to protect the integrity of the judicial process. 386 U. S., at 554. And in Stump v. Sparkman, 435 U. S. 349 (1978), the Court once again enunciated this principle, despite any “informality with which [the judge] proceeded,” and despite any ex parte feature of the proceeding. Id., at 363, and n. 12.

With this judicial immunity firmly established, the Court has extended absolute immunity to certain others who perform functions closely associated with the judicial process. The federal hearing examiner and administrative law judge have been afforded absolute immunity. “There can be little doubt that the role of the modern federal hearing examiner or administrative law judge ... is ‘functionally comparable’ to that of a judge.” Butz v. Economou, 438 U. S. 478, 513 (1978). Full immunity also has been given to federal and state prosecutors. Yaselli v. Goff, 275 U. S. 503 (1927), aff’g 12 F. 2d 396 (CA2 1926); Imbler v. Pachtman, 424 U. S. 409, 424-426 (1976). The same is true for witnesses, including police officers, who testify in judicial proceedings. Witnesses are “integral parts of the judicial process” and, accordingly, are shielded by absolute immunity. Briscoe v. LaHue, 460 U. S. 325, 335 (1983). And the Court has noted the adoption in this country of the principle of immunity for grand jurors. See Imbler v. Pachtman, 424 U. S., at 423, n. 20. See also Butz v. Economou, 438 U. S., at 509-510.

Although this Court has not decided whether state parole officials enjoy absolute immunity as a matter of federal law, see Martinez v. California, 444 U. S. 277, 284 (1980), federal appellate courts have so held. See, e. g., Sellars v. Procunier, 641 F. 2d 1295, 1303 (CA9), cert. denied, 454 U. S. 1102 (1981); Evans v. Dillahunty, 711 F. 2d 828, 830-831 (CA8 1983); United States ex rel. Powell v. Irving, 684 F. 2d 494 (CA7 1982).

B. The Court has extended absolute immunity to the President when damages liability is predicated on his official act. Nixon v. Fitzgerald, 457 U. S. 731, 744-758 (1982). See Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982). “For executive officials in general, however, our cases make plain that qualified immunity represents the norm.” Ibid. See Scheuer v. Rhodes, 416 U. S. 232 (1974) (State Governor and his aides); Harlow v. Fitzgerald, supra (Presidential aides); Butz v. Economou, supra (Cabinet member, acknowledging, however, that there are “those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business,” 438 U. S., at 507); Procunier v. Navarette, 434 U. S. 555 (1978) (state prison officials); Wood v. Strickland, 420 U. S. 308 (1975) (school board members); Pierson v. Ray, supra (police officers). Spalding v. Vilas, 161 U. S. 483 (1896) (Postmaster General), and Barr v. Matteo, 360 U. S. 564 (1959) (Government officials), where full immunity was afforded, both antedated Bivens. In any event, “federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Butz v. Economou, 438 U. S., at 506; Harlow v. Fitzgerald, 457 U. S., at 808.

C. The Court has said that “in general our cases have followed a ‘functional’ approach to immunity law.” Id., at 810. “[0]ur cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant.” Briscoe v. LaHue, 460 U. S., at 342. Absolute immunity flows not from rank or title or “location within the Government,” Butz v. Economou, 438 U. S., at 511, but from the nature of the responsibilities of the individual official. And in Butz the Court mentioned the following factors, among others, as characteristic of the judicial process and to be considered in determining absolute as contrasted with qualified immunity: (a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. Id., at 512.

hH hH hH

We turn to the application of these principles to the facts of the present case. Judge Cudahy of the Court of Appeals, in his separate concurring opinion, 727 F. 2d, at 673, stressed the Butz factors and was persuaded by what he felt were the absence of procedural safeguards, the rare and exceptional character of absolute immunity, and the need for such immunity only when public policy requires it. Id., at 674-676.

Petitioners, in response, and seemingly in order to negate the significance of certain of the specified factors, point out that grand jury proceedings possess few procedural safeguards that are associated with court proceedings, and are largely immune from any type of judicial review. See, e. g., United States v. Calandra, 414 U. S. 338, 345 (1974); Costello v. United States, 350 U. S. 359 (1956). Petitioners also observe that prosecutorial decisionmaking is not subject to the formalities of trials; instead, the prosecutor exercises broad and generally unreviewable discretion. Yet grand jurors and prosecutors enjoy absolute immunity. Petitioners finally argue that the Court’s cases teach that absolute immunity shields an official if (a) the official performs an adjudicatory function comparable to that of a judge, (b) the function is of sufficient public importance, and (c) the proper performance of that function would be subverted if the official were subjected to individual suit for damages. Brief for Petitioners 21.

When we evaluate the claim of immunity for the committee members, we bear in mind that immunity status is for the benefit of the public as well as for the individual concerned. Pierson v. Ray, 386 U. S., at 554. The committee members, in a sense, do perform an adjudicatory function in that they determine whether the accused inmate is guilty or innocent of the charge leveled against him; in that they hear testimony and receive documentary evidence; in that they evaluate credibility and weigh evidence; and in that they render a decision. We recognize, too, the presence of some societal importance in this dispute-resolution function. The administration of a prison is a difficult undertaking at best, for it concerns persons many of whom have demonstrated a proclivity for antisocial, criminal, and violent conduct. See Hudson v. Palmer, 468 U. S. 517, 526-527 (1984). We also acknowledge that many inmates do not refrain from harassment and intimidation. The number of nonmeritorious prisoners’ cases that come to this Court’s notice is evidence of this. Tension between prison officials and inmates has been described as “unremitting.” Wolff v. McDonnell, 418 U. S. 539, 562 (1974). “Retaliation is much more than a theoretical possibility.” Ibid. And we do not underestimate the fact, stressed by petitioners, that committee members usually are persons of modest means and, if they are suable and unprotected, perhaps would be disinclined to serve on a discipline committee. See Ward v. Johnson, 690 P. 2d, at 1108.

We conclude, nonetheless, that these concerns, to the extent they are well grounded, are overstated in the context of constitutional violations. We do not perceive the discipline committee’s function as a “classic” adjudicatory one, as petitioners would describe it. Tr. of Oral Arg. 9-10. Surely, the members of the committee, unlike a federal or state judge, are not “independent”; to say that they are is to ignore reality. They are not professional hearing officers, as are administrative law judges. They are, instead, prison officials, albeit no longer of the rank and file, temporarily diverted from their usual duties. See Ward v. Johnson, 690 F. 2d, at 1115 (dissenting opinion). They are employees of the Bureau of Prisons and they are the direct subordinates of the warden who reviews their decision. They work with the fellow employee who lodges the charge against the inmate upon whom they sit in judgment. The credibility determination they make often is one between a co-worker and an inmate. They thus are under obvious pressure to resolve a disciplinary dispute in favor of the institution and their fellow employee. See Ponte v. Real, 471 U. S. 491, 513 (1985) (dissenting opinion). It is the old situational problem of the relationship between the keeper and the kept, a relationship that hardly is conducive to a truly adjudicatory performance.

Neither do we equate this discipline committee membership to service upon a traditional parole board. The board is a “neutral and detached” hearing body. Morrissey v. Brewer, 408 U. S. 471, 489 (1972). The parole board member has been described as an impartial professional serving essentially “ ‘as an arm of the sentencing judge.’” Sellars v. Procunier, 641 F. 2d., at 1302, n. 15, quoting Bricker v. Michigan Parole Board, 405 F. Supp. 1340, 1345 (ED Mich. 1975). And in the penalty context, the parole board is constitutionally required to provide greater due process protection than is the institution discipline committee. Wolff v. McDonnell, 418 U. S., at 561.

We relate this committee membership, instead, to the school board service the Court had under consideration in Wood v. Strickland, 420 U. S. 308 (1975). The school board members were to function as “adjudicators in the school disciplinary process,” and they were to “judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations.” Id., at 319. Despite the board’s adjudicative function of that extent, the Court concluded that the board members were to be protected by only qualified immunity. After noting the suggestion of the presence of a deterrence-from-service factor, the Court concluded that “absolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.” Id., at 320.

That observation and conclusion are equally applicable here. It is true, of course, that the “prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.” Ingraham v. Wright, 430 U. S. 651, 669 (1977). But in Ingraham it was also said that even if schoolchildren and their parents do not have a prisoner’s motive or proclivity to institute harassing lawsuits, they have “little need for the protection of the Eighth Amendment,” for “the openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner.” Id., at 670. If qualified immunity is sufficient for the schoolroom, it should be more than sufficient for the jailhouse where the door is closed, not open, and where there is little, if any, protection by way of community observation.

Petitioners assert with some vigor that procedural formality is not a prerequisite for absolute immunity. They refer to well-known summary and ex parte proceedings, such as the issuance of search warrants and temporary restraining orders, and the setting of bail. And they sound a note of practicality by stating that recasting prison disciplinary tribunals in the mold of formal administrative bodies would be inimical to the needs of prison discipline and security. It is said that committee procedures fully comply with, and indeed exceed, what Wolff v. McDonnell, supra, requires, that they are sufficiently “judicial” to qualify for absolute immunity, and that Wo Iff “would be undone” as a practical matter if absolute immunity were not afforded. Brief for Petitioners 30. In any event, it is asserted, committee proceedings contain ample safeguards to ensure the avoidance or correction of constitutional errors. Among these are the qualifications for committee service; prior notice to the inmate; representation by a staff member; the right to present certain evidence at the hearing; the right to be present; the requirement for a detailed record; the availability of administrative review at three levels (demonstrated by the relief obtained on review by these respondents at the first two levels); and the availability of ultimate review in federal court under 28 U. S. C. §2241. Finally, it is said that qualified immunity would provide insufficient protection for committee members.

We are not persuaded. To be sure, the line between absolute immunity and qualified immunity often is not an easy one to perceive and structure. That determination in this case, however, is not difficult, and we readily conclude that these committee members fall on the qualified-immunity side of the line.

Under the Bureau’s disciplinary policy in effect at the time of respondents’ hearings, few of the procedural safeguards contained in the Administrative Procedure Act under consideration in Butz were present. The prisoner was to be afforded neither a lawyer nor an independent nonstaff representative. There was no right to compel the attendance of witnesses or to cross-examine. There was no right to discovery. There was no cognizable burden of proof. No verbatim transcript was afforded. Information presented often was hearsay or self-serving. The committee members were not truly independent. In sum, the members had no identification with the judicial process of the kind and depth that has occasioned absolute immunity.

Qualified immunity, however, is available to these committee members. That, we conclude, is the proper point at which to effect the balance between the opposing considerations. This less-than-absolute protection is not of small consequence. As the Court noted in Butz, 438 U. S., at 507-508, insubstantial lawsuits can be recognized and be quickly disposed of, and firm application of the Federal Rules of Civil Procedure “will ensure that federal officials are not harassed by frivolous lawsuits.” Id., at 508. All the committee members need to do is to follow the clear and simple constitutional requirements of Wolff v. McDonnell, supra; they then should have no reason to fear substantial harassment and liability. Qualified immunity has been widely imposed on executive officials who possess greater responsibilities. See, e. g., Scheuer v. Rhodes, Butz v. Economou, Harlow v. Fitzgerald, all supra, and Mitchell v. Forsyth, 472 U. S. 511 (1985). “[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law, and . . . insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment.” Butz v. Economou, 438 U. S., at 506-507. See also Barr v. Matteo, 360 U. S., at 588-589 (Brennan, J., dissenting); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S., at 411 (Harlan, J., concurring in judgment). See Gray, Private Wrongs of Public Servants, 47 Calif. L. Rev. 303, 339 (1959). Public policy has not dictated otherwise.

It is the business of prison officials, of course, to maintain order within their institutions. But this fact does not support a claim that every step taken to protect constitutional rights of prisoners will lead to a breakdown in institutional discipline and security. Routine and automatic arguments to this effect have been made before and have been rejected by this Court. See Johnson v. Avery, 393 U. S. 483, 486-487 (1969); Lee v. Washington, 390 U. S. 333, 334 (1968); Ex parte Hull, 312 U. S. 546 (1941).

We likewise are not impressed with the argument that anything less than absolute immunity will result in a flood of litigation and in substantial procedural burdens and expense for committee members. This argument, too, has been made before. But this Court’s pronouncements in Harlow v. Fitzgerald, 457 U. S., at 813-820, place the argument in appropriate perspective, for many cases may be disposed of without the necessity of pretrial discovery proceedings. Our experience teaches us that the vast majority of prisoner cases are resolved on the complaint alone. Of those prisoners whose complaints survive initial dismissal, few attempt discovery and fewer still actually obtain it. See Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610 (1979). And any expense of litigation largely is alleviated by the fact that a Government official who finds himself as a defendant in litigation of this kind is often represented, as in this case, by Government counsel. If the problem becomes acute, the Government has alternatives available to it: it might decide to indemnify the defendant official; Congress could make the claim a subject for the Federal Tort Claims Act; and Congress could even consider putting in place administrative law judges to preside at prison committee hearings.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Rehnquist,

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

The Court concludes that the members of the Institution Discipline Committee of a federal prison are more like school board members than they are like administrative law judges or members of a parole, board, and that therefore they are not entitled to absolute immunity from liability for damages. Concededly the hearings in which these officials perform their adjudicatory function do not include all of the procedural safeguards or the adherence to written precedent that surround the function of an administrative law judge, but I do not read Butz v. Economou, 438 U. S. 478 (1978), as making these factors dispositive against a claim for absolute immunity. I also think that the factors peculiar to the prison environment counsel in favor of such an immunity for these officials.

Litigation before administrative law judges is generally conducted by lawyers, who are trained to suppress their dislike of, or contempt for, the particular judge before whom they try their case. The lawyers and their clients come from their homes and hotels to a government building in the morning, present their case to the judge, go and have lunch, return in the afternoon, and again present their case. When the court recesses for the day, the parties and their lawyers return to their homes and hotels. At least one side will be disappointed with the ultimate ruling of the judge, but there is little reason to think that they will bear personal animus or hostility toward the judge as a result of his decision.

Inside the prison walls, however, a considerably different atmosphere appears to obtain. A prisoner charged with a serious violation of prison regulations and threatened with administrative detention and loss of good time may have quite different emotions when appearing before the Institution Discipline Committee than does, for example, the plant manager of an employer charged with a violation of the National Labor Relations Act appearing before an administrative law judge. “Prison fife, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration.” Jones v. North Carolina Prisoners’ Labor Union, 433 U. S. 119, 132 (1977).

Our observations in Preiser v. Rodriguez, 411 U. S. 475 (1973), about the relationship between a State and its prisoners are equally applicable to the relationship between the Federal Government and its prisoners:

“The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen. For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State.” Id., at 492.

In Wolff v. McDonnell, 418 U. S. 539 (1974), our first major decision applying the Due Process Clause of the Fourteenth Amendment to prison disciplinary proceedings, we said:

“Prison disciplinary proceedings . . . take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends. They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life. . . . Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace. Relationships among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.” Id., at 561-562.

Not only may emotions run higher and tensions be exacerbated in the prison environment, but prisoners simply are not subject to many of the constraints which often deter members of the population at large from litigating at the drop of a hat. We have held, for example, that prisoners in confinement are entitled to free access to lawbooks or some other legal assistance. Bounds v. Smith, 430 U. S. 817 (1977). And the great majority of prisoners qualify for in forma pauperis status, which entitles them to relief from statutory filing fees. With less to profitably occupy their time than potential litigants on the outside, and with a justified feeling that they have much to gain and virtually nothing to lose, prisoners appear to be far more prolific litigants than other groups in the population. And prisoners have made increasing use of § 1983 and Bivens-type suits in recent years: 18,856 such suits were filed in federal court in the year ending June 80, 1984, as compared to just 6,606 in 1975. Administrative Office of the United States Courts, Annual Report of the Director 143, Table 24 (1984).

In light of the foregoing, I think a slightly different balancing of the ledger is called for in the case of prison disciplinary officials than in the case of administrative law judges. The latter are surrounded by greater procedural protections for the litigants, and are governed by precedent. But the former operate in a far more volatile environment, are called upon to make decisions more quickly, and are much more likely to be the object of harassing litigation in the absence of absolute immunity. If in fact the administrative system set up by the government offers administrative relief from these officials’ mistakes, and thereby permits the vindication of constitutional claims in this manner, I believe that the grant of absolute immunity meets the conditions set out in Butz v. Economou, 438 U. S. 478 (1978).

Here we need not look far for the availability or speed of administrative relief. Both respondents appeared before the Institution Discipline Committee on February 21, 1975. A few days later that committee issued its ruling, and respondents appealed to the Warden. On March 21, 1975, the Warden granted most of the relief requested, ordering respondents released from administrative segregation and restoring their forfeited good time. He also directed that their records carry a notation that the incident should not adversely affect their chances for parole. Respondents then appealed to the Regional Director of the Bureau of Prisons, who on April 11, 1975, granted respondents’ final request that all mention of the incident be expunged from their records. The entire administrative proceeding, from the day on which the hearing before the committee was held to the final ruling of the Regional Director granting respondents all of the relief requested, took less than two months.

In Price v. Johnston, 334 U. S. 266 (1948), we said that “[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Id., at 285. It requires no more than a commonsense application of this observation to the general principles laid down in Butz, supra, to conclude that the members of the Institution Discipline Committee are entitled to absolute immunity from liability for their decisions.

I respectfully dissent.

       This activity apparently resulted in a visit to the Terre Haute facility by an Assistant Surgeon General and in a lawsuit concerning the last of the four hospital deaths. See Green v. Carlson, 581 F. 2d 669 (CA7 1978), aff’d, 446 U. S. 14 (1980).

       The Policy Statement did not provide for cross-examination, representation by a lawyer, verbatim record of the proceeding, or nonagency or judicial review. Neither did it specify the standard of proof or the standard of punishment.

       The Solicitor General advises us, see Brief for Petitioners 3, n. 4, that a committee of this kind at the Terre Haute facility usually was composed of three members. By regulation, the chairman and one other member must be of department-head level, or higher. See 28 CFR § 541.16(b) (1985). The reporting officer, investigating officer, and any person who was a witness to the incident or played a significant part in having the charge referred, may not be a member of the committee except “where virtually every staff member in the institution witnessed the incident in whole or in part.” Ibid.

       Judgment was entered in favor of the defendant Warden and the defendant administrative supervisor. Respondents did not contest this aspect of the judgment on appeal.

       The sole question raised by petitioners in this Court is whether, as committee members, they were entitled to absolute immunity. Petitioners state that they have not challenged — although they do not concede— the ruling that they violated “clearly established constitutional rights” of respondents. See Brief for Petitioners 7, n. 8.


author: Per Curiam.

text:
    EASTERN AIR LINES, INC. v. MAHFOUD on behalf of MAHFOUD et al.
    No. 83-1807.
    Argued January 15, 1985
    Reargued October 9, 1985
    Decided December 10, 1985

      Richard M. Sharp reargued the cause for petitioner. With him on the briefs were Jeffrey C. Martin, Suzanne E. Meeker, Francis G. Weller, and Marc J. Yellin.

      George E. Farrell reargued the cause and filed a brief for respondent.

         Juanita M. Madole and Donald W. Madole filed a brief for Dina Avecilla et al. as amici curiae urging affirmance.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Brennan took no part in the decision of this case.


author: Justice Stevens Justice Powell,

text:
    REGENTS OF THE UNIVERSITY OF MICHIGAN v. EWING
    No. 84-1273.
    Argued October 8, 1985
    Decided December 12, 1985
    Stevens, J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, post, p. 228.

      Roderick K. Daane argued the cause for petitioner. With him on the briefs was Peter A. Davis.

      Michael M. Conway argued the cause for respondent. With him on the brief was Mary K. Butler

      Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Wallace, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, Leonard Schaitman, and Freddi Lipstein; for the American Council on Education et al. by Eugene D. Gul-land, Catherine W. Brown, Sheldon Elliot Steinbach, and Joseph Anthony Keyes, Jr.; for the Curators of the University of Missouri et al. by Marvin E. Wright and William F. Amet; and for Duke University et al. by Robert B. Donin, Daniel Steiner, Eugene J. McDonald, Estelle A. Fishbein, Michael C. Weston, and Peter H. Ruger.

        Michael H. Gottesman, Robert M. Weinberg, Joy L. Koletsky, Laurence Gold, and David M. Silberman filed a brief for the National Education Association et al. as amici curiae urging affirmance.

        Anne H. Franke and Jacqueline W. Mintz filed a brief for the American Association of University Professors as amicus curiae.

   Justice Stevens

delivered the opinion of the Court.

Respondent Scott Ewing was dismissed from the University of Michigan after failing an important written examination. The question presented is whether the University’s action deprived Ewing of property without due process of law because its refusal to allow him to retake the examination was an arbitrary departure from the University’s past practice. The Court of Appeals held that his constitutional rights were violated. We disagree.

I — I

In the fall of 1975 Ewing enrolled m a special 6-year program of study, known as “Inteflex,” offered jointly by the undergraduate college and the Medical School. An undergraduate degree and a medical degree are awarded upon successful completion of the program. In order to qualify for the final two years of the Inteflex program, which consist of clinical training at hospitals affiliated with the University, the student must successfully complete four years of study including both premedical courses and courses in the basic medical sciences. The student must also pass the “NBME Part I” — a 2-day written test administered by the National Board of Medical Examiners.

In the spring of 1981, after overcoming certain academic and personal difficulties, Ewing successfully completed the courses prescribed for the first four years of the Inteflex program and thereby qualified to take the NBME Part I. Ewing failed five of the seven subjects on that examination, receiving a total score of 235 when the passing score was 345. (A score of 380 is required for state licensure and the national mean is 500.) Ewing received the lowest score recorded by an Inteflex student in the brief history of that program.

On July 24,1981, the Promotion and Review Board individually reviewed the status of several students in the Inteflex program. After considering Ewing’s record in some detail, the nine members of the Board in attendance voted unanimously to drop him from registration in the program.

In response to a written request from Ewing, the Board reconvened a week later to reconsider its decision. Ewing appeared personally and explained why he believed that his score on the test did not fairly reflect his academic progress or potential. After reconsidering the matter, the nine voting members present unanimously reaffirmed the prior action to drop Ewing from registration in the program.

In August, Ewing appealed the Board’s decision to the Executive Committee of the Medical School. After giving Ewing an opportunity to be heard in person, the Executive Committee unanimously approved a motion to deny his appeal for a leave of absence status that would enable him to retake Part I of the NBME examination. In the following year, Ewing reappeared before the Executive Committee on two separate occasions, each time unsuccessfully seeking readmission to the Medical School. On August 19, 1982, he commenced this litigation in the United States District Court for the Eastern District of Michigan.

II

Ewing’s complaint against the Regents of the University of Michigan asserted a right to retake the NBME Part I test on three separate theories, two predicated on state law and one based on federal law. As a matter of state law, he alleged that the University’s action constituted a breach of contract and was barred by the doctrine of promissory estoppel. As a matter of federal law, Ewing alleged that he had a property interest in his continued enrollment in the Inteflex program and that his dismissal was arbitrary and capricious, violating his “substantive due process rights” guaranteed by the Fourteenth Amendment and entitling him to relief under 42 U. S. C. § 1983.

The District Court held a 4-day bench trial at which it took evidence on the University’s claim that Ewing’s dismissal was justified as well as on Ewing’s allegation that other University of Michigan medical students who had failed the NBME Part I had routinely been given a second opportunity to take the test. The District Court described Ewing’s unfortunate academic history in some detail. Its findings, set forth in the margin, reveal that Ewing “encountered immediate difficulty in handling the work,” Ewing v. Board of Regents, 559 F. Supp. 791, 793 (1983), and that his difficulties — in the form of marginally passing grades and a number of incompletes and makeup examinations, many experienced while Ewing was on a reduced course load — persisted throughout the 6-year period in which he was enrolled in the Inteflex program.

Ewing discounted the importance of his own academic record by offering evidence that other students with even more academic deficiencies were uniformly allowed to retake the NBME Part I. See App. 107-111. The statistical evidence indicated that of the 32 standard students in the Medical School who failed Part I of the NBME since its inception, all 32 were permitted to retake the test, 10 were allowed to take the test a third time, and 1 a fourth time. Seven students in the Inteflex program were allowed to retake the test, and one student was allowed to retake it twice. Ewing is the only student who, having failed the test, was not permitted to retake it. Dr. Robert Reed, a former Director of the Inteflex program and a member of the Promotion and Review Board, stated that students were “routinely” given a second chance. 559 F. Supp., at 794. Accord, App. 8, 30, 39-40, 68, 73, 163. Ewing argued that a promotional pamphlet released by the Medical School approximately a week before the examination had codified this practice. The pamphlet, entitled “On Becoming a Doctor,” stated:

“According to Dr. Gibson, everything possible is done to keep qualified medical students in the Medical School. This even extends to taking and passing National Board Exams. Should a student fail either part of the National Boards, an opportunity is provided to make up the failure in a second exam.” Id., at 113.

The District Court concluded that the evidence did not support either Ewing’s contract claim or his promissory es-toppel claim under governing Michigan law. There was “no sufficient evidence to conclude that the defendants bound themselves either expressly or by a course of conduct to give Ewing a second chance to take Part I of the NBME examination.” 559 F. Supp., at 800. With reference to the pamphlet “On Becoming A Doctor,” the District Court held that “even if [Ewing] had learned of the pamphlet’s contents before he took the examination, and I find that he did not, I would not conclude that this amounted either to an unqualified promise to him or gave him a contract right to retake the examination.” Ibid.

With regard to Ewing’s federal claim, the District Court determined that Ewing had a constitutionally protected property interest in his continued enrollment in the Inteflex program and that a state university’s academic decisions concerning the qualifications of a medical student are “subject to substantive due process review” in federal court. Id., at 798. The District Court, however, found no violation of Ewing’s due process rights. The trial record, it emphasized, was devoid of any indication that the University’s decision was “based on bad faith, ill will or other impermissible ulterior motives”; to the contrary, the “evidence demonstrate^] that the decision to dismiss plaintiff was reached in a fair and impartial manner, and only after careful and deliberate consideration.” Id., at 799. To “leave no conjecture” as to his decision, the District Judge expressly found that “the evidence demonstrate^] no arbitrary or capricious action since [the Regents] had good reason to dismiss Ewing from the program.” Id., at 800.

Without reaching the state-law breach-of-contract and promissory-estoppel claims, the Court of Appeals reversed the dismissal of Ewing’s federal constitutional claim. The Court of Appeals agreed with the District Court that Ewing’s implied contract right to continued enrollment free from arbitrary interference qualified as a property interest protected by the Due Process Clause, but it concluded that the University had arbitrarily deprived him of that property in violation of the Fourteenth Amendment because (1) “Ewing was a ‘qualified’ student, as the University defined that term, at the time he sat for NBME Part I”; (2) “it was the consistent practice of the University of Michigan to allow a qualified medical student who initially failed the NBME Part I an opportunity for a retest”; and (3) “Ewing was the only University of Michigan medical student who initially failed the NBME Part I between 1975 and 1982, and was not allowed an opportunity for a retest.” Ewing v. Board of Regents, 742 F. 2d 913, 916 (CA6 1984). The Court of Appeals therefore directed the University to allow Ewing to retake the NBME Part I, and if he should pass, to reinstate him in the Inteflex program.

We granted the University’s petition for certiorari to consider whether the Court of Appeals had misapplied the doctrine of “substantive due process.” 470 U. S. 1083 (1985). We now reverse.

HH HH HH

In Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 78, 91-92 (1978), we assumed, without deciding, that federal courts can review an academic decision of a public educational institution under a substantive due process standard. In this case Ewing contends that such review is appropriate because he had a constitutionally protected property interest in his continued enrollment in the Inteflex program. But remembering Justice Brandéis’ admonition not to “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,”’ Ashwander v. TVA, 297 U. S. 288, 347 (1936) (concurring opinion), we again conclude, as we did in Horowitz, that the precise facts disclosed by the record afford the most appropriate basis for decision. We therefore accept the University’s invitation to “assume the existence of a constitutionally protectible property right in [Ewing’s] continued enrollment,” and hold that even if Ewing’s assumed property interest gave rise to a substantive right under the Due Process Clause to continued enrollment free from arbitrary state action, the facts of record disclose no such action.

As a preliminary matter, it must be noted that any substantive constitutional protection against arbitrary dismissal would not necessarily give Ewing a right to retake the NBME Part I. The constitutionally protected interest alleged by Ewing in his complaint, App. 15, and found by the courts below, derives from Ewing’s implied contract right to continued enrollment free from arbitrary dismissal. The District Court did not find that Ewing had any separate right to retake the exam and, what is more, explicitly “reject[ed] the contract and promissory estoppel claims, finding no sufficient evidence to conclude that the defendants bound themselves either expressly or by a course of conduct to give Ewing a second chance to take Part I of the NBME examination.” 559 F. Supp., at 800. The Court of Appeals did not overturn the District Court’s determination that Ewing lacked a tenable contract or estoppel claim under Michigan law, see supra, at 220, and n. 5, and we accept its reasonable rendering of state law, particularly when no party has challenged it.

The University’s refusal to allow Ewing to retake the NBME Part I is thus not actionable in itself. It is, however, an important element of Ewing’s claim that his dismissal was the product of arbitrary state action, for under proper analysis the refusal may constitute evidence of arbitrariness even if it is not the actual legal wrong alleged. The question, then, is whether the record compels the conclusion that the University acted arbitrarily in dropping Ewing from the Inteflex program without permitting a reexamination.

It is important to remember that this is not a case in which the procedures used by the University were unfair in any respect; quite the contrary is true. Nor can the Regents be accused of concealing nonacademic or constitutionally impermissible reasons for expelling Ewing; the District Court found that the Regents acted in good faith.

Ewing’s claim, therefore, must be that the University misjudged his fitness to remain a student in the Inteflex program. The record unmistakably demonstrates, however, that the faculty’s decision was made conscientiously and with careful deliberation, based on an evaluation of the entirety of Ewing’s academic career. When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Cf. Youngberg v. Romeo, 457 U. S. 307, 323 (1982).

Considerations of profound importance counsel restrained judicial review of the substance of academic decisions. As Justice White has explained:

“Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is . . . only to underline Mr. Justice Black’s constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable.” Moore v. East Cleveland, 431 U. S. 494, 543-544 (1977) (White, J., dissenting).

See id., at 502 (opinion of Powell, J.). Added to our concern for lack of standards is a reluctance to trench on the prerogatives of state and local educational institutions and our responsibility to safeguard their academic freedom, “a special concern of the First Amendment.” Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967). If a “federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies,” Bishop v. Wood, 426 U. S. 341, 349 (1976), far less is it suited to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions — decisions that require “an expert evaluation of cumulative information and [are] not readily adapted to the procedural tools of judicial or administrative decision-making.” Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S., at 89-90.

This narrow avenue for judicial review precludes any conclusion that the decision to dismiss Ewing from the Inteflex program was such a substantial departure from accepted academic norms as to demonstrate that the faculty did not exercise professional judgment. Certainly his expulsion cannot be considered aberrant when viewed in isolation. The District Court found as a fact that the Regents “had good reason to dismiss Ewing from the program.” 559 F. Supp., at 800. Before failing the NBME Part I, Ewing accumulated an unenviable academic record characterized by low grades, seven incompletes, and several terms during which he was on an irregular or reduced course load. Ewing’s failure of his medical boards, in the words of one of his professors, “merely culminate[d] a series of deficiencies. . . . In many ways, it’s the straw that broke the camel’s back.” App. 79. Accord, id., at 7, 54-55, 72-73. Moreover, the fact that Ewing was “qualified” in the sense that he was eligible to take the examination the first time does not weaken this conclusion, for after Ewing took the NBME Part I it was entirely reasonable for the faculty to reexamine his entire record in the light of the unfortunate results of that examination. Admittedly, it may well have been unwise to deny Ewing a second chance. Permission to retake the test might have saved the University the expense of this litigation and conceivably might have demonstrated that the members of the Promotion and Review Board misjudged Ewing’s fitness for the medical profession. But it nevertheless remains true that his dismissal from the Inteflex program rested on an academic judgment that is not beyond the pale of reasoned academic decisionmaking when viewed against the background of his entire career at the University of Michigan, including his singularly low score on the NBME Part I examination.

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

It is so ordered.

Justice Powell,

concurring.

Although I join the Court’s opinion holding that respondent presents no violation of the substantive due process right that he asserts, I think it unnecessary to assume the existence of such a right on the facts of this case. Respondent alleges that he had a property interest in his continued enrollment in the University’s Inteflex program, and that his dismissal was arbitrary and capricious. The dismissal allegedly violated his substantive due process rights guaranteed by the Fourteenth Amendment, providing the basis for his claim under 42 U. S. C. § 1983.

I

As the Court correctly points out, respondent’s claim to a property right is dubious at best. Ante, at 222, n. 7. Even if one assumes the existence of a property right, however, not every such right is entitled to the protection of substantive due process. While property interests are protected by procedural due process even though the interest is derived from state law rather than the Constitution, Board of Regents v. Roth, 408 U. S. 564, 577 (1972), substantive due process rights are created only by the Constitution.

The history of substantive due process “counsels caution and restraint.” Moore v. East Cleveland, 431 U. S. 494, 502 (1977) (opinion of Powell, J., for a plurality). The determination that a substantive due process right exists is a judgment that “ ‘certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.’” Ibid., quoting Poe v. Ullman, 367 U. S. 497, 543 (1961) (Harlan, J., dissenting). In the context of liberty interests, this Court has been careful to examine each asserted interest to determine whether it “merits” the protection of substantive due process. See, e. g., East Cleveland, supra; Roe v. Wade, 410 U. S. 113 (1973); Griswold v. Connecticut, 381 U. S. 479 (1965). “Each new claim to [substantive due process] protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed.” Poe, supra, at 544 (Harlan, J., dissenting).

The interest asserted by respondent — an interest in continued enrollment from which he derives a right to retake the NBME — is essentially a state-law contract right. It bears little resemblance to the fundamental interests that previously have been viewed as implicitly protected by the Constitution. It certainly is not closely tied to “respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms,” Griswold, supra, at 501 (Harlan, J., concurring in judgment). For these reasons, briefly summarized, I do not think the fact that Michigan may have labeled this interest “property” entitles it to join those other, far more important interests that have heretofore been accorded the protection of substantive due process. Cf. Harrah Independent School District v. Martin, 440 U. S. 194 (1979).

h — i 1 — 1

I agree fully with the Court’s emphasis on the respect and deference that courts should accord academic decisions made by the appropriate university authorities. In view of Ewing’s academic record that the Court charitably characterizes as “unfortunate,” this is a case that never should have been litigated. After a 4-day trial in a District Court, the case was reviewed by the Court of Appeals for the Sixth Circuit, and now is the subject of a decision of the United States Supreme Court. Judicial review of academic decisions, including those with respect to the admission or dismissal of students, is rarely appropriate, particularly where orderly administrative procedures are followed — as in this case.

       The Inteflex program has since been lengthened to seven years.

       At this and later meetings Ewing excused his NBME Part I failure because his mother had suffered a heart attack 18 months before the examination; his girlfriend broke up with him about six months before the examination; his work on an essay for a contest had taken too much time; his makeup examination in pharmacology was administered just before the NBME Part I; and his inadequate preparation caused him to panic during the examination.

       A fourth count of Ewing’s complaint advanced a claim for damages under 42 U. S. C. § 1983. The District Court held that the Board of Regents is a state instrumentality immunized from liability for damages under the Eleventh Amendment, and dismissed this count of the complaint. Ewing v. Board of Regents, 552 F. Supp. 881 (ED Mich. 1982).

         “In the fall of 1975, when Ewing enrolled in the program, he encountered immediate difficulty in handling the work and he did not take the final examination in Biology. It was not until the following semester that he completed this course and received a C. His performance in his other first semester courses was as follows: a C in Chemistry 120, a C in his writing course, and an incomplete in the Freshman Seminar. In the next semester he took Chemistry 220, a Freshman Seminar, and Psychology 504. He received a B in the Freshman Seminar, a C in Chemistry 220, but he withdrew from Psychology 504. He was advised at that time that he could not take the Patient Care Course, usually given during the fall of an Inteflex student’s second year, and he was placed on an irregular program. Because of these difficulties, at the July 14, 1976 meeting of the Promotion and Review Board he requested a leave of absence, and when this was approved, he left the program.
      “During the summer of 1976 while on leave, he took two Physics courses at Point Loma College in California. He reentered the Inteflex program at the University of Michigan in the winter 1977 term. In that term he repeated Chemistry 220 in which he received an A-. In the spring of 1977, he passed the Introduction to the Patient Care course.
      “In the 1977-78 year, he completed the regular Year II program. But then he encountered new difficulty. In the fall of 1978 he received an incomplete in Clinical Studies 400, which was converted to a Pass; a B in Microbiology 420; and an incomplete in Gross Anatomy 507. The Gross Anatomy incomplete was converted to a C — by a make-up examination. During the winter of 1979 he received a C — in Genetics 505, a C in Microbiology 520, an E in Microanatomy and General Pathology 506, a B in Creative Writing, and a Pass in Clinical Studies 410. He appealed the Micro-anatomy and General Pathology grade, requesting a change from an E to a D, and a make-up exam to receive a Pass. His appeal was denied by the Grade Appeal Committee, and he was again placed on an irregular program; he took only the Clinical Studies 420 course in the spring 1979 semester.
      “In July 1979, Ewing submitted a request to the Promotion and Review Board for an irregular program consisting of a course in Pharmacology in the fall and winter 1979-80 and a course in Human Illness and Neuroscience in 1980-81, thus splitting the fourth year into two years. The Board denied this request and directed him to take the fourth year curriculum in one academic year. He undertook to do so. He removed his deficiency in Microanatomy and General Pathology 506 by repeating the course during the winter 1980 semester and received a C +. In the spring term of 1980 he passed Developmental Anatomy with a B - grade, and he received a C grade in Neuroscience I 509 after a reexamination. In the fall of 1980, he received a passing grade in Neuroscience 609 and Pharmacology 626, and in the winter term of 1981, he received a passing grade in Clinical Studies 510 and a deficiency in Pharmacology 627. He was given a makeup examination in this course, and he received a 67.7 grade.
      “He then took Part I of the NBME . . . .” Ewing v. Board of Regents, 559 P. Supp., at 793-794.

       In a footnote, the Court of Appeals stated: “Because we believe this case can be disposed of on the Section 1983 claim, this Court does not expressly reach the breach of contract or promissory estoppel claims.” Ewing v. Board of Regents, 742 F. 2d 913, 914, n. 2 (CA6 1984).

       The University’s petition for certiorari also presented the question whether the Eleventh Amendment constituted a complete bar to the action because it was brought against the “Board of Regents of the University of Michigan,” App. 13, a body corporate. Cf. Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam); Alabama v. Pugh, 438 U. S. 781 (1978) (per curiam). After the petition was granted, however, respondent Ewing filed a motion to amend the complaint by joining the individual members of the Board of Regents as named defendants in their official capacities. The University did not oppose that motion. Tr. of Oral Arg. 12-13.
      Granting the motion merely conforms the pleadings to the “course of proceedings” in the District Court. Cf. Kentucky v. Graham, 473 U. S. 159, 167, n. 14 (1985); Brandon v. Holt, 469 U. S. 464, 469 (1985). The record reveals that the Regents frequently referred to themselves in the plural, as “defendants,” indicating that they understood the suit to be against them individually, in their official capacities, rather than against the Board as a corporate entity. App. 11. Likewise, the District Court held that “defendants did not act in violation of Ewing’s due process rights,” 559 F. Supp., at 799, and accordingly found “in favor of the defendants,” id., at 800. We consequently grant the motion, thereby allowing Ewing to name as defendants the individual members of the Board of Regents in their official capacities. See Patsy v. Florida Board of Regents, 457 U. S. 496, 516, n. 19 (1982). Given our resolution of the case, we need not consider the question whether the relief sought by Ewing would be available under Eleventh Amendment principles.

       Ewing and the courts below reasoned as follows: In Board of Regents v. Roth, 408 U. S. 564, 577 (1972), this Court held that property interests protected by due process are “defined by existing rules or understandings that stem from an independent source such as state law.” See Goss v. Lopez, 419 U. S. 565, 572-573 (1975). In a companion case, Perry v. Sindermann, 408 U. S. 593, 601-602 (1972), we held that “agreements implied from ‘the promisor’s words and conduct in the light of the surrounding circumstances’ ” could be independent sources of property interests. See Bishop v. Wood, 426 U. S. 341, 344 (1976) (implied contracts). According to an antiquated race discrimination decision of the Michigan Supreme Court (whose principal holding has since been overtaken by events), “when one is admitted to a college, there is an implied understanding that he shall not be arbitrarily dismissed therefrom.” Booker v. Grand Rapids Medical College, 156 Mich. 95, 99-100, 120 N. W. 589, 591 (1909). From the foregoing, Ewing would have us conclude that he had a protectible property interest in continued enrollment in the Inteflex program.

       Tr. of Oral Arg. 3. Consistent with this suggestion, petitioner’s answer to Ewing’s complaint “admitted] that, under Michigan law, [Ewing] may have enjoyed a property right and interest in his continued enrollment in the Inteflex Program.” App. 21.

       Although there is some ambiguity in its opinion, we understand the Court of Appeals to have found “clearly erroneous” the District Court’s rejection of Ewing’s federal substantive due process claim solely because of the “undisputed evidence of a consistent pattern of conduct” — namely, the “substantial and uncontroverted evidence in the trial record that at the time Ewing took the NBME Part I, medical students were routinely given a second opportunity to pass it.” 742 F. 2d, at 915. The Court of Appeals found no “rule” to the effect that medical students are entitled to retake failed examinations. Indeed, it relied on the University’s “promotional pamphlet entitled ‘On Becoming a Doctor’ ” only to the extent that it “memorialized the consistent practice of the medical school with respect to students who initially fail that examination.” Id., at 916 (emphasis added).
      A property interest in a second examination, however, cannot be inferred from a consistent practice without some basis in state law. Yet in this case the Court of Appeals did not reverse the District Court’s finding that Ewing was not even aware of the contents of the pamphlet and left standing its holding that the statements in this promotional tract did not “amoun[t] either to an unqualified promise to him or ... a contract right to retake the examination” under state law. 559 F. Supp., at 800. We recognize, of course, that “mutually explicit understandings” may operate to create property interests. Perry v. Sindermann, 408 U. S., at 601. But such understandings or tacit agreements must support “a legitimate claim of entitlement” under ‘“an independent source such as state law . . . .’” Id., at 602, n. 7 (quoting Board of Regents v. Roth, 408 U. S., at 577). The District Court, it bears emphasis, held that the University’s liberal retesting custom gave rise to no state-law entitlement to retake the NBME Part I. We rejected an argument similar to Ewing’s in Board of Regents v. Roth. In that case Dr. Roth asserted a property interest in continued employment by virtue of the fact that “of four hundred forty-two non-tenured professors, four were not renewed during [a particular] academic year.” Brief for Respondent in Board of Regents v. Roth, O. T. 1971, No. 71-162, p. 28 (footnote and citation omitted). Absent a state statute or university rule or “anything approaching a ‘common law’ of reemployment,” however, we held that Dr. Roth had no property interest in the renewal of his teaching contract. Board of Regents v. Roth, 408 U. S., at 578, n. 16.

       “In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.” Propper v. Clark, 337 U. S. 472, 486-487 (1949). Accord, Haring v. Prosise, 462 U. S. 306, 314, n. 8 (1983); Leroy v. Great Western United Corp., 443 U. S. 173, 181, n. 11 (1979); Butner v. United States, 440 U. S. 48, 58 (1979); Bishop v. Wood, 426 U. S., at 345-347.

       “University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation.” Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 78, 96, n. 6 (1978) (Powell, J., concurring). See id., at 90-92 (opinion of the Court).

       Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, see Keyishian v. Board of Regents, 385 U. S., at 603; Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (opinion of Warren, C. J.), but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself, see University of California Regents v. Bakke, 438 U. S. 265, 312 (1978) (opinion of Powell, J.); Sweezy v. New Hampshire, 354 U. S., at 263 (Frankfurter, J., concurring in result). Discretion to determine, on academic grounds, who may be admitted to study, has been described as one of “the four essential freedoms” of a university. University of California Regents v. Bakke, 438 U. S., at 312 (opinion of Powell, J.) (quoting Sweezy v. New Hampshire, supra, at 263 (Frankfurter, J., concurring in result)) (internal quotations omitted).

       Even viewing the ease from Ewing’s perspective, we cannot say that the explanations and extenuating circumstances he offered were so compelling that their rejection can fairly be described as irrational. For example, the University might well have concluded that Ewing’s sensitivity to difficulties in his personal life suggested an inability to handle the stress inherent in a career in medicine. The inordinate amount of time Ewing devoted to his extracurricular essay writing may reasonably have revealed to the University a lack of judgment and an inability to set priorities.

       Nor does the University’s termination of Ewing substantially deviate from accepted academic norms when compared with its treatment of other students. To be sure, the University routinely gave others an opportunity to retake the NBME Part I. But despite tables recording that some students with more incompletes or low grades were permitted to retake the examination after failing it the first time, App. 105-111, and charts indicating that these students lacked the outside research and honor grade in clinical work that Ewing received, id., at 119-120, we are not in a position to say that these students were “similarly situated” with Ewing. The Promotion and Review Board presumably considered not only the raw statistical data but also the nature and seriousness of the individual deficiencies and their concentration in particular disciplines — in Ewing’s case, the hard sciences. The Board was able to take into account the numerous incom-pletes and makeup examinations Ewing required to secure even marginally passing grades, and it could view them in connection with his reduced course loads. Finally, it was uniquely positioned to observe Ewing’s judgment, self-discipline, and ability to handle stress, and was thus especially well situated to make the necessarily subjective judgment of Ewing’s prospects for success in the medical profession. The insusceptibility of promotion decisions such as this one to rigorous judicial review is borne out by the fact that 19 other Inteflex students, some with records that a judge might find “better” than Ewing’s, were dismissed by the faculty without even being allowed to take the NBME Part I a first time. Id., at 165-166. Cf. id., at 66 (nine Inteflex students terminated after suffering one deficiency and failing one course after warning).

      See Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 78, 96, n. 6 (1978) (opinion of Powell, J.), cited ante, at 225, n. 11. See also University of California Regents v. Bakke, 438 U. S. 265, 312 (1978) (opinion of Powell, J.) (“Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment”); Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967).


author: Chief Justice Burger Justice Blackmun,

text:
    UNITED STATES v. ROJAS-CONTRERAS
    No. 84-1023.
    Argued October 9, 1985
    Decided December 16, 1985

      BURGER, C. J., delivered the opinion of the Court, in which White, MARSHALL, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, in which Brennan, J., joined, post, p. 237.

      Patty Merkamp Stemler argued the cause for the United States. With her on the briefs were former Solicitor General Lee, Acting Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joshua I. Schwartz.

      Judy Clarke, by appointment of the Court, 470 U. S. 1048, argued the cause and filed a brief for respondent.
   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve a conflict in the Circuits as to whether (a) the Speedy Trial Act of 1974, 18 U. S. C. § 3161 et seq., as amended, prohibits commencement of a trial less than 30 days after arraignment on a superseding indictment; and (b) assuming a violation of the Speedy Trial Act in this case, was that error harmless?

I

On December 7, 1981, respondent, who is not a citizen of the United States, was convicted of illegal entry into this country and was sentenced to one year’s imprisonment. After serving his sentence, respondent returned to Mexico.

Again, on February 13, 1983, he entered the United States illegally and was apprehended by United States Border Patrol agents. On February 18, 1983, a federal grand jury sitting in the Southern District of California returned a two-count indictment charging respondent with felony illegal entry under 8 U. S. C. § 1325 and with reentry by a deported alien under 8 U. S. C. § 1326. The indictment stated that the judgment of conviction for the prior illegal entry, which formed the predicate for the enhancement of the § 1325 offense to a felony, was “rendered on or about December 17, 1981.” The date of the previous conviction was actually December 7, 1981. On February 18, 1983, respondent, appearing through counsel, was arraigned on the indictment. Trial was set for April 19, 1983.

On March 21, 1983, the Government informed respondent of the correct date of the previous conviction, and on April 15, 1983, the grand jury returned a superseding indictment which was identical with the original indictment in all respects except that it stated that the date of the previous conviction was “on or about December 7, 1981.” Respondent was arraigned on the superseding indictment on April 18, 1983.

Later that day at a pretrial conference, respondent’s counsel moved for a 30-day continuance of the trial scheduled to begin the next day contending that the Speedy Trial Act, as construed by the Court of Appeals for the Ninth Circuit in United States v. Arkus, 675 F. 2d 245 (1982), required that a new 30-day trial preparation period be granted following the return of a superseding indictment. The District Court denied respondent’s motion for a 30-day continuance, citing the Seventh Circuit’s decision in United States v. Horton, 676 F. 2d 1165 (1982), and distinguishing Arkus. Respondent was convicted of felony illegal entry into the United States.

The Court of Appeals reversed, holding that under its decision in United States v. Harris, 724 F. 2d 1452 (CA9 1984), which in turn relied on its decision in Arkus, respondent was entitled to a new 30-day trial preparation period following his arraignment on the superseding indictment. Citing its decision in United States v. Daly, 716 F. 2d 1499 (CA9 1983), the Court of Appeals held that reversal of respondent’s conviction was required to remedy the Speedy Trial Act violation because “any pretrial preparation period shorter than thirty days is inadequate per se. No showing of prejudice is required.”

We granted certiorari, 469 U. S. 1207 (1985). We reverse.

II

Our starting point, of course, is the language of the statute. The Speedy Trial Act of 1974, as amended in 1979, 18 U. S. C. §3161 et seq., establishes inside and outside time limits for commencing trial in criminal cases. Section 3161(c)(2), the provision at issue in this case, provides:

“Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se” (emphasis added).

The statute clearly fixes the beginning point for the trial preparation period as the first appearance through counsel. It does not refer to the date of the indictment, much less to the date of any superseding indictment. Given this unambiguous language, we have no choice but to conclude that Congress did not intend that the 30-day trial preparation period begin to run from the date of filing of a superseding indictment.

That conclusion finds additional support in the language of § 3161(c)(1). That section establishes the outside time limit within which trial must commence under the Act and explicitly refers to the date of the indictment as one of the relevant dates for determining that time limit:

“[T]he trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs” (emphasis added).

It is clear that Congress knew how to provide for the computation of time periods under the Act relative to the dáte of an indictment. Had Congress intended that the 30-day trial preparation period of § 3161(c)(2) commence or recommence on such a date, it would have so provided.

Because the language of § 3161(c)(2) is a clear expression of congressional intent, we need not resort to the legislative history of that section. We note, however, that the legislative history is wholly consistent with our reading of that section. The 30-day trial preparation period was not included in the original Speedy Trial Act as it was enacted in 1975 but was incorporated into the Act with the 1979 amendments to the Act. Speedy Trial Act Amendments Act of 1979, Pub. L. 96-43, 93 Stat. 327. The legislative history of the 1979 revisions suggests that the source of the 30-day trial preparation period was a set of Guidelines issued by the Judicial Council of the United States Court of Appeals for the Second Circuit. See Hearings on S. 961 and S. 1028 before the Senate Committee on the Judiciary, 96th Cong., 1st Sess., 122, 386-436 (1979). The Guidelines were issued to assist the trial judges sitting in the Second Circuit in interpreting the provisions of the Act. Id., at 386. These Guidelines provided that “whenever the time between arraignment and the scheduled trial date does not exceed thirty (30) days, the Court shall. . . view a request for an adjournment of trial to a date beyond thirty (30) days but within the sixty (60) day limit, liberally . . . Id., at 392-393. The Guidelines also stated that, in the situation where a superseding indictment adds new charges, trial of the original charges must begin “within the time limit for commencement of trial on the original indictment or information.” Id., at 417. Taking these two statements from the Guidelines together, it appears that, although the Second Circuit was clearly concerned that a defendant be given a pretrial preparation period of at least 30 days, the filing of a superseding indictment was not enough by itself to require the restarting of that 30-day period.

Applying § 3161(c)(2) to the facts of this case, we conclude that the requirements of that section were met here. The record reflects that respondent’s first appearance through counsel occurred on February 18, 1983. Trial was not commenced until April 19, 1983. Respondent was, therefore, afforded a pretrial preparation period twice as long as the minimum required by § 3161(c)(2).

In concluding as we do that the Act does not require that the 30-day trial preparation period be restarted upon the filing of a superseding indictment, we do not hold that a defendant must always be compelled to go to trial less than 30 days after the filing of such an indictment. The Act itself places broad discretion in the District Court to grant a continuance when necessary to allow further preparation. Section 3161(h)(8) authorizes the trial judge to grant a continuance if “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” The authority of the District Court to grant an “ends of justice” continuance should take care of any case in which the Government seeks a superseding indictment which operates to prejudice a defendant.

Here respondent was clearly not prejudiced by the return of the superseding indictment. The initial indictment recited that the judgment on the prior illegal entry had been rendered “on or about December 17, 1981.” The superseding indictment did nothing except to correct that phrase to read “on or about December 7, 1981.” Even if we were prepared to hold that December 7 is not “on or about” December 17, we would nevertheless be compelled to conclude that respondent was not prejudiced by the change.

Since the Act did not prohibit the commencement of the trial less than 30 days after arraignment on the superseding indictment, we need not address the question whether the District Court’s refusal to grant the continuance requested by respondent was harmless error.

The Court of Appeals’ construction of the Act ignored its plain language and would frustrate its basic purpose which is manifest in its very title: The speedy trial of criminal cases. That construction was error, and we reverse.

Reversed.

Justice Blackmun,

with whom Justice Brennan joins, concurring in the judgment.

I concur in the result the Court reaches and therefore in its judgment. The Court today holds that the Speedy Trial Act does not mandate a new 30-day defense-preparation period following return of a superseding indictment. I agree with the Court that that holding is strongly guided by the express purpose of the Speedy Trial Act. But because I find neither the language of the Act particularly clear nor its legislative history at all helpful, I refrain from joining the opinion’s statutory analysis.

The term “superseding indictment” refers to a second indictment issued in the absence of a dismissal of the first. The Act nowhere refers to a superseding indictment, and seems to assume that dismissal of the first indictment will precede issuance of the second. See 18 U. S. C. §§ 3161(d)(1) and 3161(h)(6). Section 3161(c)(2), which establishes the 30-day defense-preparation period “from the date on which the defendant first appears through counsel,” therefore can provide only the starting point of the inquiry. The question before the Court is whether that language may be interpreted to refer to the defendant’s appearance on the indictment upon which he ultimately goes to trial, or whether one must read that language to refer to the defendant’s appearance on the first indictment. Despite the fact that the legislative history of the Act is of no assistance, we are guided in our task by the purpose and the structure of the Act.

The Speedy Trial Act “gave effect to a Federal defendant’s right to speedy trial under the Sixth Amendment and acknowledged the danger to society represented by accused persons on bail for prolonged periods of time.” H. R. Rep. No. 96-390, p. 3 (1979). To accomplish these goals, the Act provides strict time limits for each stage of the criminal trial process. The Act, as amended, requires that a defendant be brought to trial within 70 days of his first appearance through counsel. See 18 U. S. C. § 3161(c)(1). For 30 of those days, the Government cannot proceed to trial, in order that the defendant may prepare his case.

Because the criminal process does not always proceed in a linear fashion, the Act addresses second indictments that occur, unlike in this case, following dismissal of the first indictment. When an indictment is dismissed on motion of the defendant, and the defendant is thereafter reindicted, both the 30-day and 70-day periods run anew. See 18 U. S. C. § 3161(d)(1). In contrast, however, when an indictment is dismissed on motion of the Government, and the defendant is thereafter reindicted, both the 30-day and 70-day periods continue to run from the first indictment, with the proviso that the period during which no indictment is outstanding is excluded from the 70-day calculation. See 18 U. S. C. § 3161(h)(6). The difference in treatment protects against governmental circumvention of the speedy-trial guarantee.

Neither of these reindictment provisions applies here, because the second indictment was issued in the absence of dismissal of the first. The provisions demonstrate, however, that the 30-day and 70-day periods were intended to operate in tandem; where one runs anew, so should the other. In this case, therefore, the structure of the statute suggests that either both periods should continue to run upon issuance of a superseding indictment, or both should start anew. To permit a new 30-day period, but not a new 70-day period, could lead to a result surely not intended by Congress, namely, that there is no day on which a defendant could be brought to trial. To avoid that possibility, respondent argues that the second 30-day period could simply be excluded from the continuing 70-day period in which a defendant must be brought to trial. But the Act’s comprehensive list of express exclusions counsels one to read Congress’ failure to exclude certain periods of time as a considered judgment that those periods are to be included in the speedy-trial calculation, or as a recognition that the need for such an exclusion will not arise under the statutory scheme.

In light of Congress’ intent to bring defendants quickly to trial, it would make little sense to restart both the 30-day and 70-day periods whenever there is a superseding indictment. Frequently, a superseding indictment is used to drop charges or parties or, as here, to make a minor correction, leaving the charges and the evidence necessary to defend against them unaffected. These kinds of changes should not create a need for further preparation time; indeed, in some instances, superseding indictments may lessen the defense burden. Where a superseding indictment of this type is issued, the Court’s holding today permits the defendant to be brought to trial without unnecessary delay.

Like the Court, I fully recognize that a superseding indictment may add to a defendant’s burden in preparing for trial. In the event of additional charges, or of material changes, a defendant well may need additional preparation time. Under the Act, a defendant then may seek an “ends of justice” continuance, to be granted in the discretion of the trial court. See 18 U. S. C. § 3161(h)(8)(A). This continuance is available whether the need for additional time is occasioned by a superseding indictment or otherwise. Indeed, the 1979 amendments to the Speedy Trial Act not only mandated the 30-day defense-preparation period, but also provided that one basis for granting a continuance is if “the failure to grant such a continuance . . . would deny counsel for the defendant . . . the reasonable time necessary for effective preparation.” 18 U. S. C. § 3161(h)(8)(B)(iv). The constitutional right to assistance of counsel is rendered meaningless if a defendant is forced to trial in the absence of adequate time to prepare. To avoid prejudicing a defendant, a continuance should be granted where there is a meaningful possibility that a superseding indictment will require an alteration or adjustment in the planned defense. Trial courts should bear in mind that counsel may require time fully to analyze the impact of the superseding indictment, and to explore any options it presents or precludes.

The Speedy Trial Act assures that defendants will be brought to trial quickly, but without undermining the Constitution’s guarantee of effective assistance of counsel. Because the Court’s holding today upholds that essential promise of the Act, I concur in the judgment.

       Compare United States v. Guzman, 754 F. 2d 482 (CA2 1985), cert. pending, No. 84-1604; United States v. Rush, 738 F. 2d 497 (CA1 1984), cert. denied, 470 U. S. 1004 (1985); United States v. Williford, No. 83-1376 (CA5, Feb. 27, 1984) (unpublished opinion), cert. denied, 469 U. S. 893 (1984); United States v. Horton, 676 F. 2d 1165 (CA7 1982), cert. denied, 459 U. S. 1201 (1983); and United States v. Todisco, 667 F. 2d 255 (CA2 1981), cert. denied, 455 U. S. 906 (1982), with United States v. Rojas-Contreras, No. 83-5089 (CA9, Mar. 2, 1984) (case below; unpublished opinion). See also United States v. Feldman, 761 F. 2d 380 (CA7 1985).

       The record does not disclose why the indictment was not corrected by a motion for amendment in the District Court.

       Respondent’s counsel also argued that he needed the additional time to consult a fingerprint expert and to review respondent’s immigration file. However, the ultimate fact to which such evidence related, i. e., that respondent and the person arrested in 1981 were one and the same, was ultimately stipulated to by respondent.

       As the Court observes, ante, at 235, the notion that the Act might operate to deny defendants the necessary time adequately to prepare for trial had its genesis in the Guidelines issued by the Judicial Council of the United States Court of Appeals for the Second Circuit (Guidelines). See Hearings on S. 961 and S. 1028 before the Senate Committee on the Judiciary, 96th Cong., 1st Sess., 122, 386-436 (1979) (Hearings). However, in enacting the 1979 amendments, Congress did not adopt the Second Circuit’s Guidelines; in fact, Congress rejected the Guidelines’ discretionary grant of a defense-preparation period, opting instead for a mandatory 30-day period. In light of this fundamental difference between the Act and the Guidelines, the latter’s details can provide little help for today’s decision. In any event, the Guidelines do not answer the question before us. Under them, where a superseding indictment contains charges not included in the original indictment, trial of the original charges must begin “within the time limit for commencement of trial on the original indictment or information.” Hearings, at 417. This language plainly instructs that as to the original charges contained in a superseding indictment, no new 30-day and 70-day periods begin to run. As to any new charges, however, the Guidelines at least suggest that the clock for the 70-day time to trial must be restarted. Ibid. It is not obvious under the Guidelines whether a modified charge of the sort before us today would be treated the same as the original charge, and the Guidelines are silent on the question whether to accord the defendant the opportunity to seek an additional discretionary preparation period where the 70-day period ran anew.

       Because time granted under an “ends of justice” continuance is expressly excluded from the 70-day period, any preparation time granted would not jeopardize the Government’s ability to bring the defendant to trial. See 18 U. S. C. § 3161(h)(8)(A).

       Following enactment of the 1979 amendments, the Committee on the Administration of the Criminal Law recommended precisely this analysis. The Committee advised district courts that, in the event of a superseding indictment, the 30-day preparation period should not run anew, but “the trial court should use its scheduling discretion to ensure that the defense has time to prepare in the circumstances of the particular case.” See Judicial Conference of the United States, Committee on the Administration of the Criminal Law, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended, p. 14 (1981).