author: Justice Marshall

text:
    HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. EDWARDS
    No. 82-874.
    Argued November 30, 1983
    Decided March 21, 1984

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

      John H. Garvey argued the cause for petitioner. On the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, Edwin S. Kneedler, and Frank A. Rosenfeld.

      Neal S. Dudovitz argued the cause for respondent. With him on the brief was Eileen Sweeney.

   Justice Marshall

delivered the opinion of the Court.

This case raises an issue concerning this Court’s mandatory jurisdiction. Federal courts of appeals have jurisdiction over appeals from all final decisions of district courts, “except where a direct review may be had in the Supreme Court.” 28 U. S. C. § 1291. Section 1252 of Title 28 provides for such a direct appeal from a United States court’s judgment, in a civil proceeding to which the Government is a party, holding that an Act of Congress is unconstitutional. The issue before us is whether the Court of Appeals properly dismissed for lack of jurisdiction the Secretary of Health and Human Services’ appeal from a proceeding in which a federal statute was declared unconstitutional, but in which the Secretary challenged only the District Court’s remedy.

I

Respondent filed this suit against the Secretary of Health and Human Services in the United States District Court for the Northern District of California in October 1980. On behalf of a nationwide class of Social Security applicants and recipients, respondent challenged the constitutionality of § 211(a)(5)(A) of the Social Security Act, 64 Stat. 502, as amended, 42 U. S. C. § 411(a)(5)(A), which established a gender-based presumption concerning the allocation of income from family businesses in community property States. In pretrial proceedings, the Secretary argued that the constitutional ruling sought by the class was unnecessary because the Secretary acquiesced in judicial precedents holding the challenged provision unconstitutional. Indeed, shortly after respondent’s complaint was filed, the Attorney General formally notified Congress that the Executive would not defend the constitutionality of the section. The District Court nevertheless rejected the Secretary’s claim of mootness, and granted respondent’s motion for summary judgment. According to the court, although the Secretary “essentially conceded the unconstitutionality of § 411(a)(5)(A),” a ruling on the merits was necessary because the Department was still applying the challenged statutory section.

Having held the statute unconstitutional, the District Court turned to the issue of relief. The unconstitutional provision had provided that all gross income and deductions derived from a nonpartnership trade or business in community property jurisdictions should be attributed to the husband unless the wife could establish that she exercised substantially all of the management and control of the business, in which case all income would be treated as the wife’s. Having struck down this gender-based presumption, the court found the respondent class entitled to an allocation of co-proprietor income between the spouses’ earnings accounts on the basis of the relative amount of labor contributed by each. Finding that retroactive application of its holding was appropriate under the tests of Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971), the court found that class members “are entitled to a recomputation of their earnings records, extending back to the beginning of Social Security if necessary.” Edwards v. Schweiker, No. C-80-3959 (ND Cal., Jan. 22, 1982). The court entered judgment March 23, 1982.

The following week the Secretary filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. In the Secretary’s docketing statement, filed on May 5, 1982, the Secretary fisted only matters concerning the remedy ordered by the District Court, noting that the Government conceded the unconstitutionality of the statute. Respondent filed a motion to dismiss the Secretary’s appeal, contending that the Court of Appeals did not have jurisdiction under 28 U. S. C. § 1291 “where a direct review may be had in the Supreme Court. ” Respondent argued that the Secretary had such a right to direct review to the Supreme Court under 28 U. S. C. § 1252, because the District Court had held a statute unconstitutional in a civil action to which a United States officer was a party. In a one-sentence order dated July 27, 1982, the Court of Appeals for the Ninth Circuit granted respondent’s motion to dismiss for lack of jurisdiction, citing Donovan v. Richland County Assn. for Retarded Citizens, 454 U. S. 389 (1982) (per curiam). The Secretary timely filed a petition for certiorari to the Ninth Circuit seeking our review of this dismissal. Because the petition raised an important question concerning this Court’s mandatory docket, we granted certiorari. 459 U. S. 1200 (1983). We conclude that a party does not have a right to direct review in the Supreme Court under 28 U. S. C. § 1252 unless the holding of federal statutory unconstitutionality is in issue. We therefore vacate and remand for reinstatement of the appeal.

HH I — I

In the normal course, a party dissatisfied with the judgment of a United States district court must first appeal to the court of appeals, and may then petition for a writ of certiorari in the Supreme Court. Recourse to the court of appeals is a matter of right, 28 U. S. C. § 1291; writs of certiorari are granted at the discretion of the Supreme Court, § 1254(1). The general rule of discretionary Supreme Court review is not without exceptions. Although this Court’s mandatory jurisdiction has been minimized through legislation such as the Judge’s Bill of 1925 and the 1976 repeal of most of the Three Judge District Court Act, Congress has identified a narrow group of cases that merit the immediate and mandatory attention of this Court. Section 1252 is such a direct appeal provision.

When a party has a right to pursue a direct appeal to this Court under § 1252, the normal route for appellate review is blocked, and a court of appeals is without jurisdiction. Donovan v. Richland County Assn, for Retarded Citizens, supra, at 389-390. Thus, the consequence of an erroneous choice of forum can be to preclude any court’s review, because by the time a party discovers its error, appeal to the correct forum may be untimely. To avoid that consequence, litigants ought to be able to apply a clear test to determine whether, as an exception to the general rule of appellate review, they must perfect an appeal directly to the Supreme Court. Such a test, of course, must be crafted “with precision and with fidelity to the terms by which Congress has expressed its wishes” in the jurisdictional statute. Cheng Fan Kwok v. INS, 392 U. S. 206, 212 (1968).

The Secretary and respondent offer different tests. Respondent’s position is that when the “literal requirements of § 1252 are satisfied,” only the Supreme Court has jurisdiction. Williams v. Zbaraz, 448 U. S. 358, 366 (1980); see also INS v. Chadha, 462 U. S. 919, 929 (1983) (“express requisites for an appeal under § 1252 . . . have been met”). Section 1252 establishes four prerequisites for a direct appeal to the Supreme Court: the order appealed from must issue from an enumerated court; the United States or an agency or officer must be a party; the proceeding must be civil; and the order must hold an Act of Congress unconstitutional. Those prerequisites are met in the present case. Therefore, respondent argues, the Secretary’s sole avenue for appellate review of the judgment was by direct appeal to this Court. Because the Secretary did not file a notice of appeal to this Court within 30 days of the District Court’s order, 28 U. S. C. § 2101(a), respondent contends that the Secretary has lost her right to appellate review of any aspect of the District Court’s orders.

The Secretary claims that direct review under §1252 is available only when the correctness of the constitutional holding is at issue. She argues that a close examination of the statute and its enactment supports the conclusion that the constitutional holding must be raised on appeal, and not merely decided below, before a party must invoke direct review by the Supreme Court. Under this reading, the Secretary sought review in the proper forum because she challenged the scope of the District Court’s remedy and not the correctness of its constitutional ruling. Indeed, by the Secretary’s reasoning, had she filed an appeal in this Court, we would have dismissed for lack of jurisdiction.

To articulate a test to resolve the present dispute and to provide guidance for litigants and courts in future cases, we begin with the language and structure of the statute itself.

“Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.
“A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court.” 28 U. S. C. § 1252.

A literal reading of § 1252 tells us that parties have a right to direct appeal from a “judgment, decree or order,” and not merely a right to direct appeal of a court’s “holding an Act of Congress unconstitutional.” Under the literal language, a party not contesting the constitutional holding would seem to be required to proceed directly to this Court for review of other aspects of the court’s judgment. That literal reading gains support from the fact that Congress has not limited our review under § 1252 to the federal constitutional issue, but has mandated that when we have properly asserted jurisdiction under § 1252, the whole case is to come before us.

Section 1252, however, presents a case in which “to give the surface literal meaning to a jurisdictional provision . . . would not be consistent with the ‘sense of the thing’ and would confer upon this Court a jurisdiction beyond what ‘naturally and properly belongs to it.’” When Congress created the exceptional right to bypass the court of appeals, it directly linked that right to a lower court’s invalidation of an Act of Congress. Although it is in the nature of cases and controversies that the court’s judgment may address not only the issue of statutory constitutionality, but other issues as well, such as attorney’s fees, remedy, or related state-law claims, the natural sense of the jurisdictional provision is that the holding of statutory unconstitutionality, not these other issues, is what Congress wished this Court to review in the first instance. Thus, the sense of the statute and the literal language are at loggerheads.

The structure of § 1252 helps resolve this tension, and leads us towards the common-sense view that the constitutional holding must be at issue for direct review in this Court to lie. The first paragraph of § 1252 grants the right of direct appeal from the judgment holding an Act of Congress unconstitutional; the second paragraph brings before us the whole case, including appeals filed before and after the constitutional appeal. The clear implication of the second paragraph is that parties may have properly lodged appeals in other courts prior to a § 1252 filing. Only after a party has filed a notice of direct appeal pursuant to § 1252 must all other appeals and cross-appeals in the case be taken here. The necessary corollary is that in the absence of such notice, other appeals in the case will follow the normal route for appellate review. The conclusion inherent in the structure of § 1252 is that not all appeals in a case in which an Act of Congress has been held unconstitutional must be taken directly to this Court. Because direct review is linked to a court’s holding a federal statute unconstitutional, the logical test of which appeals from a judgment must be brought directly to this Court and which, standing alone, must follow the normal route of appellate review, is whether the issue on appeal is the holding of statutory unconstitutionality.

The history of the enactment of § 1252’s statutory predecessor also guides us to a conclusion that Congress considered the jurisdictional predicate for mandatory direct review by the Supreme Court to be appeal from the constitutional holding. Three interrelated justifications for expediting final determinations of the constitutionality of federal statutes recur in discussions of the direct appeal provision. First, when a federal judge strikes down an act of a coequal branch of government, the decision implicates separation of powers, not only through the original exercise of judicial review, but also through this Court’s exercise of discretion to hear such a case. By mandating direct review, Congress asserted its prerogative to define a category of important cases that the Court is not free to ignore. Second, Congress justified imposing mandatory jurisdiction on the Supreme Court because of the need for certainty and uniformity in federal government when an Act may have been declared unconstitutional. It is significant that the first paragraph of § 1252 authorizes a direct appeal to this Court only in civil actions “to which the United States or any of its agencies, or any officer or employee thereof, ... is a party”; no direct appeal lies if there are only nonfederal parties to the suit. That language reveals a congressional purpose to assure an expeditious means of affirming or removing the restraint on the Federal Government’s administration of the law when it would be bound by a holding that the law in question is unconstitutional.

Finally, Congress expressed its sense that declarations of unconstitutionality have ramifications beyond the interests of litigants in the particular case. For this reason, the predecessor statute created the right of intervention by the Attorney General in cases between private parties when the constitutionality of an Act of Congress was drawn into question, as well as the right to direct appeal from a holding of unconstitutionality. The Senate Report emphasized that the “decision of the constitutional question may affect the public at large, may be in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes a duty to all the citizens of securing to them their common rights.” S. Rep. No. 963, 75th Cong., 1st Sess., 4 (1937).

The first two of these concerns are not implicated in cases in which the Government concedes statutory unconstitutionality by its decision not to appeal that aspect of the district court’s judgment. Such cases raise no separation-of-powers issue, nor do they implicate the need for certainty and uniformity in the administration of federal law. In the present case, for example, the Attorney General, charged with enforcing federal laws, informed the Congress that he agreed with the courts that the challenged provision in the Social Security Act was unconstitutional. Furthermore, prior to seeking review of the District Court’s judgment, the Secretary had agreed not to enforce the statute anywhere and the District Court’s remedial order was in effect nationwide. The decision not to raise the issue of statutory unconstitutionality on appeal obviously was intended to bind the Secretary in her nationwide administration of the Social Security Act. When the court and the affected agency reach the same conclusion, there is no need to resort to direct review under 28 U. S. C. § 1252 in an effort to remove the binding effect on the Executive Branch’s administration of the law.

The only justification for exerting mandatory jurisdiction in such cases might be the considerable ramifications of district court orders; here, for example, the District Court’s remedy provided retroactive relief for a nationwide class. We do not believe that serious consequences alone can support the exercise of our § 1252 jurisdiction. Congress did not enact an open-ended “impact” test for determining which cases should come to this Court for direct review. Although remedial aspects of a case are important, the touchstone of direct appeal under § 1252 is not a party’s or our own judgment of the significance of a decision. We exercise that judgment under our discretion to grant certiorari in any civil or criminal case before, as well as after, rendition of judgment. 28 U. S. C. §1254(1); this Court’s Rule 18. In § 1252, Congress mandated direct review not simply for decisions with impact, but rather for decisions whose impact was predicated upon a potentially incorrect exercise of judicial review. See nn. 15, 16, supra.

Not only are Congress’ justifications for creating an expedited method of direct review not present in cases such as this, but a construction of § 1252 that would require us to review collateral issues coming to us as independent matters, rather than as pendent to the holding of statutory unconstitutionality, would undermine the effectiveness of the direct appeal provision. If we were to adopt respondent’s construction of the language, this Court would be required to give precedence to issues outside the congressional definition of public importance. We would, for example, be obliged to crowd our docket with appeals concerned solely with attorney’s fee awards or pendent claims arising under state law— matters that would typically fail to meet our criteria for discretionary review. See this Court’s Rule 17. Appeals of this sort would almost certainly be better handled by the courts of appeals, which is where they will lie under the interpretation of § 1252 that we adopt today.

HH HH HH

We conclude, therefore, that § 1252 does not warrant a construction that would require appeals raising only issues other than statutory unconstitutionality to be taken directly to this Court. If the four prerequisites to direct appeal pursuant to 28 U. S. C. § 1252 are met, and a party seeks review of the court’s holding that an Act of Congress is unconstitutional, that party should file a notice of appeal to the Supreme Court. If a party does not contest the holding of statutory unconstitutionality, and seeks review only of another portion of the court’s judgment, the party should file a notice of appeal to the appropriate court of appeals. Although the formal prerequisites to direct appeal under § 1252 were met in the present case, the Secretary did not contest the holding of statutory unconstitutionality. Therefore, the Secretary’s appeal belonged in the first instance in the Court of Appeals, which should not have dismissed the appeal for lack of jurisdiction. The judgment of the Court of Appeals is therefore vacated, and the cause is remanded for reinstatement of the Secretary’s appeal.

It is so ordered.

       The District Court certified a class of “[a]ll applicants for or recipients of Old Age, Survivors and Disability Insurance benefits, 42 U. S. C. § 401 et seq., on their own accounts as wage earners whose applications have been denied or for whom the monthly benefit amount has been reduced due to the omission from their earnings records of income earned while married and operating a trade or business in a community property state, as required by 42 U. S. C. § 411(a)(5)(A).” Edwards v. Schweiker, No. C-80-3959 (ND Cal, May 22, 1981). The class was further limited to members who received a final decision from the Secretary within the 60 days prior to the filing of the lawsuit or at any time thereafter. Edwards v. Schweiker, No. C-80-3959 (ND Cal., Mar. 19, 1982).

       In the latter half of 1980, several courts held that the statutory presumption violated the equal protection element of the Due Process Clause. Hester v. Harris, 631F. 2d 53, 55-56 (CA5 1980); Carrasco v. Secretary of Health, Education and Welfare, 628 F. 2d 624, 627-631 (CA1 1980); Becker v. Harris, 493 F. Supp. 991, 994-996 (ED Cal. 1980). These courts remanded to the Secretary to formulate new standards for crediting self-employment income in community property States. 631 F. 2d, at 56-57; 628 F. 2d, at 631; 493 F. Supp., at 997.
      Although the Secretary had argued that § 211(a)(5)(A) is merely an eligibility requirement, not a constitutionally suspect classification based on gender, the Solicitor General later concluded that the statutory presumption could not be defended under the standards announced by this Court in Califano v. Westcott, 443 U. S. 76 (1979) (provision that rests on stereotypical gender presumptions, without more, violates due process), and Califano v. Goldfarb, 430 U. S. 199 (1977) (classification by gender must serve and be substantially related to important governmental objectives).

       Executive Communication 4772, 126 Cong. Rec. 29377 (1980) (notice that Solicitor General would not take an appeal from the District Court’s holding in Becker v. Harris, supra); Executive Communication 5587, 126 Cong. Rec. 29295 (1980) (same). Congress has required the Attorney General to notify both Houses of Congress in any case in which the Attorney General considers an enacted law, at issue in the case, to be unconstitutional. See note following 28 U. S. C. §519 (1982 ed.).
      In July 1981, the agency’s concession that § 211(a)(5)(A) of the Act is unconstitutional was published as Social Security Ruling 81-17c (C. E. 1981) (acquiescing in Becker v. Harris, supra). “Once published, a ruling is binding on all components of the Social Security Administration in accordance with [20 CFR pt. 422]. Rulings do not have the force and effect of the law or regulations but are to be relied upon as precedents in determining other cases where the facts are basically the same. A ruling may be superseded, modified, or revoked by later legislation, regulations, court decisions or rulings.” Social Security Rulings iii (C. E. 1981).
      Neither Congress nor the agency had modified the statute or implementing regulations at the time this case was argued.

         Edwards v. Schweiker, No. C-80-3959 (ND Cal., May 22,1981). Petitioner did not file an appeal challenging the ruling that the statute was unconstitutional. The jurisdictional statute at issue in this case permits, but does not require, an interlocutory appeal from a holding of unconstitutionality. 28 U. S. C. § 1252; see United States v. Clark, 445 U. S. 23, 26-27, n. 2 (1980) (Government need not appeal before final judgment is entered).

         Edwards v. Schweiker, No. C-80-3959, p. 2, n. 2 (ND Cal., Jan. 22, 1982) (referring to order of May 22, 1981).

       The notice of appeal from the judgment of March 23, 1982, does not state the ground of appeal, nor is it its function to do so. See Fed. Rule App. Proc. 3(c).

       The relevant portion of the docketing statement provided:
      “H. Brief Description of Nature of Action and Result Below:
      “Plaintiffs challenged the constitutionality of 42 U. S. C. 411(a)(5)(A), which requires that where both the husband and wife worked in a family business in a community property State, all of the self-employment income must be allocated to the husband. The government conceded the statute’s unconstitutionality, and the remaining issues concerned relief, in particular, the standard to apply in place of the invalid statutory standard. The district court certified a class action, and ordered that the Secretary recompute benefits on the principle that the self-employment income of the business be split between husband and wife on the basis of their relative amounts of labor.
      “I. Issues to be raised on Appeal:
      “The issues on appeal may include: (1) whether the district court’s standard based on relative amount of labor should be applied rather than the Secretary’s standard based on whether there was a true partnership between the spouses; (2) whether it was error to apply the new rule to earnings records dating back to the beginning of the self-employment program; (3) whether it was error to require that no individual lose benefits as a result of the recomputation required under the order; and (4) whether the notice that the court required be sent to potential class members is appropriate.”

       Act of Feb. 13, 1925, 43 Stat. 936. See Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 98, and n. 16 (1974).

       Act of Aug. 12, 1976, Pub. L. 94-381, §§ 1, 2, 90 Stat. 1119 (repealing 28 U. S. C. §§ 2281, 2282 (1970 ed.), amending §§ 2284, 2403). For a discussion of classes of cases that have been removed from the Court’s mandatory jurisdiction since 1971, see Tushnet, The Mandatory Jurisdiction of the Supreme Court — Some Recent Developments, 46 U. Cin. L. Rev. 347, 359 (1977).

       Cf. 28 U. S. C. § 1254(2) (party may appeal a court of appeals’ invalidation of a state statute on federal grounds, but review on appeal “shall be restricted to the Federal questions presented”).

         Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, 94 (1960) (Frankfurter, J., dissenting) (quoting American Security & Trust Co. v. District of Columbia, 224 U. S. 491, 495 (1912)).

       For cases discussing our jurisdiction over the whole case when a direct appeal is properly filed pursuant to 28 U. S. C. § 1252, see United States v. American Friends Service Committee, 419 U. S. 7, 12, n. 7 (1974) (per

        curiam); United States v. Raines, 362 U. S. 17, 27, n. 7 (1960). When we consider the whole case, we are not only implementing Congress’ jurisdictional intent expressed in paragraph two of 28 U. S. C. § 1252. We are also exercising judicial discretion to administer our caseload to secure the just, speedy, and inexpensive determination of actions. Fed. Rule Civ. Proc. 1. But neither paragraph two of § 1252 nor our principle of case management should come into play unless we have established first that the Court has appellate jurisdiction.

       Act of Aug. 24, 1937, ch. 754, §2, 50 Stat. 752, provided:
      “In any suit or proceeding in any court of the United States to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is a party, or in which the United States has intervened and become a party, and in which the decision is against the constitutionality of any Act of Congress, an appeal may be taken directly to the Supreme Court of the United States by the United States or any other party . . . .”
      As in the current version, appeal could be taken from an interlocutory or final judgment, decree or order. Congress mandated that such appeals “shall be heard by the Supreme Court of the United States at the earliest possible time and shall take precedence over all other matters not of a like character.” Ibid. The whole thrust of the bill was its focus on the special importance of lower court invalidations of federal statutes.

       Floor debate affirms that Congress understood that the predicate to direct appeal was that a party would seek review of the holding that a statute was unconstitutional. The bill’s sponsor, Representative Sumners, explicated the section to mean that the Government “may appeal directly to the Supreme Court in order to expedite the determination of the constitutional question.” 81 Cong. Rec. 3272 (1937); see also id., at 3260 (remarks of Rep. Sumners) (case would come up to Court just on question of constitutionality); id., at 3257 (remarks of Rep. Michener) (bill affects only constitutional questions); id., at 3256 (remarks of Rep. Brewster) (bill eliminates delays in determining constitutional question). The sponsor emphasized the “good, practical common sense” in having “just as little delay between the enactment of Congress and the determination [of its constitutionality] as can be arranged.” Id., at 3268 (remarks of Rep. Sumners).

       The impetus in the mid-1930’s to establish expedited appeal of holdings of statutory unconstitutionality was courts’ response to much of the New Deal legislation, such as enjoining operation of the newly created Tennessee Valley Authority. See, e. g., Appeals from Federal Courts, Hearings on S. 2176 before the Senate Committee on the Judiciary, 74th Cong, 1st Sess., 13-16 (1935).

       As then Senator Hugo L. Black, sponsor in the 74th Congress of a bill for direct appeal from injunctions preventing the effectuation of Acts of Congress explained:
      “I see no reason why ... we should not say to the Supreme Court, ‘. . . [i]t is not for you to determine whether you will take the case or not. Those who are charged primarily with enforcing the law in this country are bound to be in closer contact with the necessity for a speedy decision than you are in your court room, and they have determined that this is a case of such great national moment and importance that it must be decided at once.’” Id., at 20.
      One commentator suggests that the existence and current definition of § 1252 mandatory jurisdiction rests on a policy of separation of powers. Tushnet, 46 U. Cin. L. Rev., at 358-365. Congressional enactment of mandatory jurisdiction provisions incorporates what the author refers to as the “importance” standard. Thus, the impact of a ruling regarding a statute is recognized as having particularly broad impact.

       See, e. g., McLucas v. DeChamplain, 421 U. S. 21, 31 (1975) (§1252 language permits appeal where the Government has participated in litigation “and thus will be bound by a holding of unconstitutionality”).

       The 1937 Act provided for notice to the Attorney General of private litigation “whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question,” and intervention by the United States as of right “for presentation of evidence . . . and argument upon the question of the constitutionality of such Act.” Act of Aug. 24, 1937, ch. 754, 50 Stat. 751. The current version of this portion of the original bill appears at 28 U. S. C. § 2403(a).

       See also 81 Cong. Rec. 3268 (1937) (remarks of Rep. Michener) (“If,” “when,” and “[w]here the constitutionality [of Acts of Congress] is questioned, more than the rights of individual litigants in the suit are involved. The rights of all the people who might be affected by the laws are involved, and in these days time is of the essence in many of these important cases coming before the Supreme Court”); id., at 3265 (remarks of then Rep. Fred M. Vinson) (When the constitutionality of an Act of Congress has been drawn into question, that question “affects not only the litigants in the particular case, but it affects many others. It ought to be decided right in the public interest”).

       See n. 4, supra. Such concurrence of views between the Executive Branch and the Judiciary does not necessarily preclude a case or controversy over the constitutionality of a federal statute. In INS v. Chadha, 462 U. S. 919 (1983), for example, the agency and the private party agreed that a federal provision was unconstitutional. Congress, however, had intervened as a party, and contested the holding. The constitutionality of the one-House legislative veto was therefore squarely presented on direct appeal to this Court. But that is not the situation in the present case.


source: Caselaw Access Project

author: Justice Powell Justice Brennan,

license: Public Domain

text:
    BLUM, COMMISSIONER, NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES v. STENSON
    No. 81-1374.
    Argued January 11, 1984
    Decided March 21, 1984

      Powell, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 902.

      Melvyn R. Leventhal, Deputy First Assistant Attorney General of New York, argued the cause for petitioner. With him on the briefs were Robert Abrams, Attorney General, Dennis H. Allee, First Assistant Attorney General, Peter H. Schiff, George D. Zuckerman, Deputy Solicitor General, and Marion R. Buchbinder and Frederick K. Mehlman, Assistant Attorneys General.

      Leon Silverman argued the cause for respondent. With him on the brief were Kalman Finkel, Arthur J. Fried, John E. Kirklin, and Linda R. Blumkin.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Deputy Assistant Attorney General Kuhl, Joshua I. Schwartz, William Ranter, and Mark W. Pennak; for the State of Alabama et al. by Kenneth 0. Eikenberry, Attorney General of Washington, and Thomas F. Carr, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim

        Jones of Idaho, Neil Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, JohnD. Ashcroft of Missouri, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kim-melman of New Jersey, Rufus L. Edmisten of North Carolina, Robert 0. Wefald of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Michael Turpén of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Chauncey H. Browning of West Virginia, Bronson C. La Fol-lette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Judith S. Yogman and Carl Valvo, Assistant Attorneys General.
      Briefs of amici curiae urging affirmance were filed for the Alliance for Justice by Laura Macklin; for the California Coalition of Welfare Rights Organizations by Mary S. Burdick and Rickard A. Rothschild; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Jack Green-berg, James M. Nabrit III, Charles Stephen Ralston, Steven L. Winter, Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, Norman J. Chachkin, E. Richard Larson, Burt Neubome, Kenneth Kimerling, Joaquin G. Avila, and Morris J. Bailer; for the National Education Association et al. by Michael H. Gottesman, Robert M. Weinberg, Julia Penny Clark, Robert H. Chanin, and Lawrence A. Poltrock; for the New York State Bar Association et al. by Haliburton Fales II; and for Oliver Hill et al. by Armand Derfner and Stephen P. Berzon.

   Justice Powell

delivered the opinion of the Court.

Title 42 U. S. C. § 1988 (1976 ed., Supp. V) provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hensley v. Eckerhart, 461 U. S. 424 (1983). Adjustments to that fee then may be made as necessary in the particular case. The two issues in this case are whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates, and whether, and under what circumstances, an upward adjustment of an award based on prevailing market rates is appropriate under § 1988.

I

A

This suit was brought in 1978 by respondent on behalf of a statewide class of Medicaid recipients pursuant to 42 U. S. C. § 1983 in the District Court for the Southern District of New York. Under New York law, one who is eligible to receive benefits under the Supplemental Security Income (SSI) program, 42 U. S. C. § 1381 et seq. (1976 ed. and Supp. V), automatically is eligible to receive Medicaid benefits. N. Y. Soc. Serv. Law § 363 et seq. (McKinney 1976). Prior to this suit, persons who qualified for Medicaid in this fashion automatically lost their benefits if they thereafter became ineligible for SSI payments. The case was decided on cross-motions for summary judgment after only one set of plaintiff’s interrogatories had been served and answered. On these motions, the District Court certified the class and rendered final judgment in favor of the class.

The court enjoined the prior practice of automatic termination of benefits, and prescribed procedural rights for the certified class that included “(a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1335 (1979). The Court of Appeals for the Second Circuit affirmed in an unpublished oral opinion from the bench. Affirmance order, Stenson v. Blum, 628 F. 2d 1345, cert. denied, 449 U. S. 885 (1980). Respondent’s subsequent request for an award of reasonable attorney’s fees under § 1988 is the subject of the present case.

B

Throughout this litigation, respondent was represented by attorneys from the Legal Aid Society of New York, a private nonprofit law office. In November 1980, respondent filed a request for attorney’s fees for the period December 1978 through the end of the litigation. Her three attorneys sought payment for some 809 hours of work at rates varying from $95 to $105 per hour. This amounted to approximately $79,312. Respondent’s total fee request, however, reflected a 50% increase in that fee. In her brief to the District Court, respondent explained that such an increase was necessary to compensate for the complexity of the case, the novelty of the issues, and the “great benefit” achieved. The total requested fee amounted to approximately $118,968. Petitioner opposed the fee award on the grounds that the rates were exorbitant, the number of hours charged were unreasonable and duplicative, and the 50% “bonus” was improper.

Petitioner submitted no evidence to support her claim that the hours and rates charged by respondent were unreasonable. Instead, petitioner rested her claim that the hours were duplicative and excessive and the rates exorbitant on arguments contained in her brief to the District Court and on that court’s discretion. Petitioner requested an eviden-tiary hearing on the issue of reasonable billable hours only if the District Court found that the discussion in her brief did not justify reductions in the number of hours charged. Finally, petitioner argued that the 50% “bonus” requested by respondent was improper because it would be paid by the public.

The District Court held that both the hours expended and the rates charged were reasonable. It also held that the fee calculated by multiplying the number of hours times the hourly rates should be increased by the requested 50% because of the quality of representation, the complexity of the issues, the riskiness of success, and the “great benefit to a large class” that was achieved. 512 F. Supp. 680, 685 (1981). The District Court awarded the plaintiff class the requested fee of $118,968.

The Court of Appeals affirmed in an unpublished opinion. No. 81-7385 (CA2, Oct. 19, 1981). Affirmance order, 671 F. 2d 493 (1981). We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney’s fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates. 461 U. S. 956 (1983).

hH I — I

Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under § 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under § 1988 be calculated according to the cost of providing legal services ráther than according to the prevailing market rate. The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He argues that market rates reflect the level of compensation necessary to attract profit-making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates “confer an unjustified windfall or subsidy upon legal services organizations.” Brief for United States as Amicus Curiae 6.

Resolution of these two arguments begins and ends with an interpretation of the attorney’s fee statute. The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney’s fee to prevailing civil rights litigants. In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes:

“It is intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N. C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976).

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. None of these four cases made any mention of a cost-based standard. Petitioner’s argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of § 1988.

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD ¶9444 (CD Cal. 1974), make this explicit. In Stanford Daily, the court held that it “must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” 64 F. R. D., at 681. In Davis, the court held:

“In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel . . . are employed by ... a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” 8 EPD, at 5048-5049.

We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of “windfall profits” it expressly intended to prohibit.

The statute and legislative history establish that “reasonable fees” under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel. The policy arguments advanced in favor of a cost-based standard should be addressed to Congress rather than to this Court.

Ill

We address now the second question presented: whether a 50% upward adjustment in the fee was — as petitioner argues — an abuse of discretion by the District Court. Petitioner makes two separate but related arguments. First, she asserts that a reasonable attorney’s fee is calculated by multiplying the reasonable number of hours expended times a reasonable hourly rate and that any upward adjustment of that fee is improper. In the alternative, she argues that the 50% upward adjustment in this case constitutes a clear abuse of discretion.

A

Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear. In actions to enforce federal civil rights, § 1988 authorizes a court, “in its discretion,” to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The legislative history explains that “a reasonable attorney’s fee” is one that is “adequate to attract competent counsel, but . . . [that does] not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). As noted, the Senate Report identified four cases that had calculated correctly a reasonable attorney’s fee.

In Hensley v. Eckerhart, 461 U. S. 424 (1983), we reviewed the cases cited in the legislative history of § 1988 and concluded that the “product of reasonable hours times a reasonable rate” normally provides a “reasonable” attorney’s fee within the meaning of the statute. Id., at 434. Hensley also recognized that “in some cases of exceptional success an enhanced award may be justified.” Id., at 435. In view of our recognition that an enhanced award may be justified “in some cases of exceptional success,” we cannot agree with petitioner’s argument that an “upward adjustment” is never permissible. The statute requires a “reasonable fee,” and there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high. When, however, the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee contemplated by § 1988.

B

The issue remaining is the appropriateness of an upward adjustment to the fee award in this case. The burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant. The record before us contains no evidence supporting an upward adjustment to fees calculated under the basic standard of reasonable rates times reasonable hours. The affidavits of respondent’s attorneys do not claim, or even mention, entitlement to a bonus or upward revision. Respondent’s brief to the District Court merely states in conclusory fashion that an upward adjustment to the fee is necessary because the issues were novel, the litigation was complex, and the results were of far-reaching significance to a large class of people. The District Court, without elaboration, accepted these conclu-sory reasons for approving the upward adjustment and supplied additional reasons of its own. In awarding the 50% increase, the court referred to the complexity of the litigation, the novelty of the issues, the high quality of representation, the “great benefit” to the class, and the “riskiness” of the lawsuit. The Court of Appeals, in affirming, shed no light on why it thought this substantial upward adjustment was appropriate. In a single sentence, it simply repeated the unsupported conclusions of the District Court.

The reasons offered by the District Court to support the upward adjustment do not withstand examination. The novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel and thus do not warrant an upward adjustment in a fee based on the number of billable hours times reasonable hourly rates. There may be cases, of course, where the experience and special skill of the attorney will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue. In those cases, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates. Neither complexity nor novelty of the issues, therefore, is an appropriate factor in determining whether to increase the basic fee award.

The District Court, having tried the case, was in the best position to conclude that “the quality of representation was high.” In view of the reputation of the Legal Aid Society and its staff, we have no doubt that this was true. The “quality of representation,” however, generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.” See Hensley, 461 U. S., at 435. Respondent offered no such evidence in this case, and on this record the District Court’s rationale for providing an upward adjustment for quality of representation is a clear example of double counting. In justifying the high hourly rates used to calculate the fee award, the District Court explained:

“The rates requested here are consonant with fee awards in cases of similar complexity and difficulty. . . . [T]hey are fair in view of these attorneys^] experience and expertise .... The quality of work performed by counsel throughout this case was high. In view of all these considerations, I do not find the requested rates, from $95 per hour to $105 per hour, excessive.” 512 F. Supp., at 683.

In justifying the upward adjustment to the fee award, the District Court merely restated these same two factors: “The quality of representation was high. The litigation was complex.” Id., at 685.

Not only has respondent failed to show that the hourly rates failed to provide a reasonable fee for the quality of representation provided, but she candidly concedes that the “fees awarded [to her attorneys] may be at the upper end of the market for awards under § 1988 . . . Brief for Respondent 42. Absent specific evidence to the contrary, we cannot say that rates from $95 per hour to $105 per hour for these three attorneys do not fully reflect the quality of their representation.

The 50% upward adjustment also was based in part on the District Court’s determination that the ultimate outcome of the litigation “was of great benefit to a large class of needy people.” 512 F. Supp., at 685. The court did not explain, however, exactly how this determination affected the fee award. “Results obtained” is one of the 12 factors identified in Johnson v. Georgia Highway Express, 488 F. 2d, at 718, as relevant to the calculation of a reasonable attorney’s fee. It is “particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Hensley, supra, at 434 (fee award must be reduced by the number of hours spent on unsuccessful claims). Because acknowledgment of the “results obtained” generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award. Neither the District Court’s opinion nor respondent’s briefs have identified record evidence that shows that the benefit achieved requires an upward adjustment to the fee.

Finally, the District Court included among its reasons for an upward adjustment a statement that the “issues presented were novel and the undertaking therefore risky.” 512 F. Supp., at 685. Absent any claim in the affidavits or briefs submitted in support of respondent’s fee request, seeking such an adjustment, we cannot be sure what prompted the court’s statement. Nowhere in the affidavits submitted in support of respondent’s fee request, nor in her brief to the District Court, did respondent identify any risks associated with the litigation or claim that the risk of nonpayment required an upward adjustment to provide a reasonable fee. On this record, therefore, any upward adjustment for the contingent nature of the litigation was unjustified.

In sum, we reiterate what was said in Hensley: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” 461 U. S., at 435. We therefore reject petitioner’s argument that an upward adjustment to an attorney’s fee is never appropriate under § 1988. On the record before us, however, respondent established only that hourly rates ranging from $95 per hour to $105 per hour for the full 809.75 hours billed were reasonable. This resulted in a charge of $79,312. Respondent introduced no evidence that enhancement was necessary to provide fair and reasonable compensation. She therefore has failed to carry her burden of justifying entitlement to an upward adjustment. On this record, we conclude that the fee of $79,312 was “fully compensatory.” Accordingly, the judgment below is reversed only insofar as the fee award was increased by the sum of $39,656, and is otherwise affirmed.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins, concurring.

I join the Court’s opinion. I write separately only to reaffirm my view that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee. See Hensley v. Eckerhart, 461 U. S. 424, 448-449 (1983) (Brennan, J., concurring in part and dissenting in part).

Although the Court leaves the question unresolved, see ante, at 901, n. 17, the legislative history that always has controlled our interpretation of § 1988, and that proves determinative on the other issues addressed by today’s decision, also determines whether an upward adjustment to compensate for the risk of nonpayment may be justified. In particular, Congress referred to Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (CA5 1974), for the appropriate standards to be applied by courts awarding attorney’s fees under § 1988. See ante, at 893-896. “Whether the fee is fixed or contingent,” 488 F. 2d, at 718 (emphasis in original), was consequently recognized by Congress as a relevant consideration in setting a reasonable fee. Moreover, Congress explicitly cited Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974) (subsequently aff’d, 550 F. 2d 464 (CA9 1977), rev’d on other grounds, 436 U. S. 547 (1978)), as one of several cases that had “correctly applied” the appropriate standards. S. Rep. No. 94-1011, p. 6 (1976). In Stanford Daily, the District Court concluded that a court may “increase the fees award obtained by multiplying the number of hours by the average billing rate to reflect the fact that the attorneys’ compensation, at least in part, was contingent in nature.” 64 F. R. D., at 685-686. It is clear, therefore, that Congress authorized district courts to award upward adjustments to compensate for the contingent nature of success, and thus for the risk of nonpayment in a particular case.

Indeed, allowing district courts to award such upward adjustments is entirely consistent with the market-based approach to hourly rates that is today reaffirmed by the Court. Lawyers operating in the marketplace can be expected to charge a higher hourly rate when their compensation is contingent on success than when they will be promptly paid, irrespective of whether they win or lose. Similarly, it is necessary to account for this risk in fee awards under § 1988, either by increasing the appropriate hourly rate or by enhancing the fee otherwise calculated with the use of an hourly rate that does not reflect the risk of not prevailing-. This will ensure that fees under § 1988 are consistent with prevailing market rates, see ante, at 893-894, and n. 9, that nonprofit legal service organizations and private attorneys are treated similarly, see ante, at 894-895, and n. 18, and that the attorney’s fees awarded are “adequate to attract competent counsel” to represent other clients with civil rights grievances, S. Rep. No. 94-1011, p. 6 (1976); H. R. Rep. No. 94-1558, p. 9 (1976).

       Medicaid is a program providing medical assistance to the needy. It is jointly funded by the State and Federal Governments. 42 U. S. C. §§ 1396-1396k (1976 ed., Supp. V); N. Y. Soc. Serv. Law §§363-369 (McKinney 1976).

       The certified class consisted of:
      “New York State residents who received Medicaid due to their eligibility for SSI and whose Medicaid benefits have been terminated because of subsequent ineligibility for SSI without having received one or more of the following: (a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1336 (1979).

       The Legal Aid Society, based in New York City, is a private, nonprofit law office dedicated since 1876 to providing legal representation to persons who cannot afford a lawyer. It may well be the oldest formally organized legal aid society in the United States. It enjoys a wide reputation for the devotion of its staff and the quality of its service. We are told that some three-fourths of the budget of its Civil Division is funded by nongovernmental contributors. See The Legal Aid Society 1983 Annual Report 49-52.

       Ann Moynihan billed 487 hours and 50 minutes at $95 per hour. 512 F. Supp. 680, 682 (1981). She graduated from law school in 1977, and at the outset of this litigation, she had l'/z years of experience as a practicing attorney. App. 320-321. Paula Galowitz billed 166 hours and 15 minutes at $100 per hour. 512 F. Supp., at 682. She graduated from law school in 1976 and served as a law clerk to a state judge during her first year after graduation. She had IV2 years of experience as a practicing attorney at the Legal Aid Society at the outset of this litigation. App. 335. Arthur Fried billed 155 hours and 40 minutes at $105 per hour. 512 F. Supp., at 682. (The parties agree that the 115 hours noted in the District Court’s table is a typographical error.) He graduated from law school in 1975 and served as a law clerk to a United States District Court Judge for the first two years thereafter. He had 17a years experience as a practicing attorney at the Legal Aid Society at the outset of litigation. App. 308-309.

       Petitioner does not renew here her argument that the hourly rates claimed by respondent’s counsel were out of line with the “prevailing market rate” for private counsel of comparable experience, skill, and reputation. Petitioner claims only that hourly rates for § 1988 fee awards should be based on cost rather than on prevailing market rates. See Brief for Petitioner 12-13,15-21. We decline to consider petitioner’s further argument that the hours charged by respondent’s counsel were unreasonable. As noted above, petitioner failed to submit to the District Court any evidence challenging the accuracy and reasonableness of the hours charged, see Hensley v. Eckerhart, 461 U. S. 424, 437, and n. 12 (1983), or the facts asserted in the affidavits submitted by respondent’s counsel. She therefore waived her right to an evidentiary hearing in the District Court. See City of Detroit v. Grinnell Corp., 495 F. 2d 448, 472-473 (CA2 1974) (where facts are disputed, an evidentiary hearing is required before a district court determines a proper attorney’s fee award). In view of the trial strategy she chose, petitioner waived her right to challenge in this Court the District Court’s determination that the number of hours billed were reasonable for cases of similar complexity.

       Petitioner specifically proposes that fees be based on “the cost of providing [legal] services plus, where appropriate, a margin for profit.” Brief for Petitioner 17.

       Section 1988 provides in relevant part:
      “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983,1986, and 1986 of this title ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       Accord H. R. Rep. No. 94-1558, p. 8 (1976).

       See Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 718 (CA5 1974) (“The customary fee for similar work in the community should be considered”); Stanford Daily v. Zurcher, 64 F. R. D. 680, 682 (ND Cal. 1974) (“[In making the fee award,] the court will consider . . . the value of the [attorney’s] time in light of billing rates . . .”); Davis v. County of Los Angeles, 8 EPD ¶ 9444, at 5048 (CD Cal. 1974) (fee award calculated by multiplying number of hours expended times the “normal hourly rates” for attorneys of like skill and experience); Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483, 486 (WDNC 1975) (fee award calculated with reference to hourly rates generally charged in federal litigation).

       Congress was legislating in light of experience when it enacted the 1976 fee statute. By that time, courts were familiar with calculating fee awards for civil litigation under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(k), and under the judicially established “private attorney general” theory that had prevailed prior to this Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). None of the cases decided at that time had adopted a cost-based approach to calculating fees. Reference to market rate was uniform. See, e. g., Waters v. Wisconsin Steel Works, 502 F. 2d 1309, 1322 (CA7 1974), cert. denied, 425 U. S. 997 (1976); Evans v. Sheraton Park Hotel, 164 U. S. App. D. C. 86, 96, 503 F. 2d 177, 187 (1974); Tillman v. Wheaton-Haven Recreation Assn., Inc., 517 F. 2d 1141, 1148 (CA4 1975); Kerr v. Screen Extras Guild, Inc., 526 F. 2d 67, 69-70 (CA9 1975), cert. denied sub nom. Perkins v. Screen Extras Guild, Inc., 425 U. S. 951 (1976).

       We recognize, of course, that determining an appropriate “market rate” for the services of a lawyer is inherently difficult. Market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community. The type of services rendered by lawyers, as well as their experience, skill, and reputation, varies extensively — even within a law firm. Accordingly, the hourly rates of lawyers in private practice also vary widely. The fees charged often are based on the product of hours devoted to the representation multiplied by the lawyer’s customary rate. But the fee usually is discussed with the client, may be negotiated, and it is the client who pays whether he wins or loses. The § 1988 fee determination is made by the court in an entirely different setting: there is no negotiation or even discussion with the prevailing client, as the fee — found to be reasonable by the court — is paid by the losing party. Nevertheless, as shown in the text above, the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons.
      In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to — for convenience — as the prevailing market rate.

       The District Court characterized the 50% increase as a “bonus.” The Court of Appeals, in its brief opinion, spoke of it as an “upward adjustment.” As we think the latter characterization is fairer, we will use it.

       Specifically, the Senate Report expressly approved the 12 factors that the Court of Appeals for the Fifth Circuit had used in calculating a fee award in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (1974). It then identified three cases as having “correctly applied” those 12 factors. See supra, at 893-894.

       At another point in Hensley, the Court observed that the “product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’” 461 U. S., at 434.

       Each of respondent’s counsel had admirable records as scholars, and two had valuable clerkship experience. They also were specializing in social security type claims against the Government. Yet none of them, at the outset of this suit in December 1978, had more than IV2 years’ experience as practicing lawyers. See n. 4, supra. As the term “experience” normally is used, this is quite limited.

       Nor do we believe that the number of persons benefited is a consideration of significance in calculating fees under § 1988. Unlike the calculation of attorney’s fees under the “common fund doctrine,” where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under § 1988 reflects the amount of attorney time reasonably expended on the litigation. Presumably, counsel will spend as much time and will be as diligent in litigating a case that benefits a small class of people, or, indeed, in protecting the civil rights of a single individual.

       We have no occasion in this case to consider whether the risk of not being the prevailing party in a § 1983 case, and therefore not being entitled to an award of attorney’s fees from one’s adversary, may ever justify an upward fee adjustment.

       In Part II of this opinion, we declined to draw a distinction with respect to the use of market rates between profit and nonprofit law offices. Similarly, in the rare case in which an upward adjustment to the presumptively reasonable fee of rate times hours is appropriate, we draw no distinction between profit and nonprofit law offices.

       As we stated in Hensley, a “request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U. S., at 437. Parties to civil rights litigation in particular should make a conscientious effort, where a fee award is to be made, to resolve any differences. A district court is expressly empowered to exercise discretion in determining whether an award is to be made and if so its reasonableness. The court, with its intimate knowledge of the litigation, has a responsibility to encourage agreement.

      Contingency adjustments under § 1988 should not be confused with contingency fee arrangements that are commonly entered into by private attorneys representing plaintiffs in civil litigation. An upward adjustment to compensate for the risk of nonpayment under § 1988 is “entirely unrelated to the ‘contingent fee’ arrangements that are typical in plaintiffs’ tort representation. In tort suits, an attorney might receive one-third of whatever amount the plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery. Such is not the case in contingency adjustments of the kind . . . described] herein. Th[is] contingency adjustment is a percentage increase in the [amount obtained by multiplying hours expended by hourly rate, and is designed] to reflect the risk that no fee will be obtained.” Copeland v. Marshall, 205 U. S. App. D. C. 390, 403, 641 F. 2d 880, 893 (1980) (en banc).


text:
    January 23, 1984
    No. 83-593.
    Ellsworth Freight Lines, Inc., et al. v. State Tax Commission of Missouri.
   Appeal from Sup. Ct. Mo. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-5830.
    Pointon et al. v. Fidelity National Bank, N. A.
   Appeal from C. A. 10th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-5948.
    Velasquez v. Colorado.
   Appeal from Sup. Ct. Colo, dismissed for want of substantial federal question.


text:
    No. 81-2065.
    Van Dissel et al. v. Jersey Central Power & Light Co.
   Super. Ct. N. J., App. Div. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984).


text:
    No. 82-1592.
    Weiss, Custodian for Weiss v. Temporary Investment Fund, Inc., et al.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Daily Income Fund, Inc. v. Fox, 464 U. S. 523 (1984).


text:
    No. 82-1873.
    Commissioner of Internal Revenue v. Dowell et ux.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded without prejudice to the respondents to raise the issue of the jurisdiction of the Court of Appeals to review the judgment of the Tax Court. Justice Stevens would deny certiorari.


text:
    No. 82-1877.
    Immigration and Naturalization Service v. Litonjua et al.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Mendoza, 464 U. S. 154 (1984).


text:
    No. 82-2117.
    Connecticut v. Schonagel.
   Sup. Ct. Conn. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Michigan v. Clifford, 464 U. S. 287 (1984).


text:
    No. 83-5165.
    Zeisler v. Illinois.
   App. Ct. Ill., 3d Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Michigan v. Clifford, 464 U. S. 287 (1984).


text:
    No.-.
    Sayles v. Gesell, Judge, United States District Court for the District of Columbia.
   Motion to direct the Clerk to file the petition for writ of certiorari out of time denied.


text:
    No. D-373.
    In re Disbarment of Perri.
    [For earlier order herein, see 464 U. S. 926.]
   Disbarment entered.


text:
    No. D-387.
    In re Disbarment of Mandell.
    [For earlier order herein, see 464 U. S. 958.]
   Disbarment entered.


text:
    No. D-396.
    In re Disbarment of McMorris.
   It is ordered that Samuel McMorris, of Oakland, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-397.
    In re Disbarment of Bergman.
   It is ordered that Laurence Edgar Bergman, of Ft. Collins, Colo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 81-1109.
    Robert W. Kirk & Associates, Inc. v. Holcomb et al.,
   459 U. S. 1170. Motion of respondent Holcomb to set time for filing attorney’s fee application is denied without prejudice to applying for the relief in the United States Court of Appeals for the Eleventh Circuit.


text:
    No. 82-1795.
    Capital Cities Cable, Inc., et al. v. Crisp, Director, Oklahoma Alcoholic Beverage Control Board.
   C. A. 10th Cir. [Certiorari granted, 464 U. S. 813.] Motion of petitioners Cox Cable of Oklahoma City, Inc., et al. for assignment of counsel for oral argument denied.


text:
    No. 83-245.
    No. 83-291.
    Pension Benefit Guaranty Corporation v. R. A. Gray & Co.; and Oregon-Washington Carpenters-Employers Pension Trust Fund v. R. A. Gray & Co.
   C. A. 9th Cir. [Probable jurisdiction noted, 464 U. S. 912.] Motions for leave to file briefs as amici curiae in No. 83-291 by the following were granted: National-American Wholesale Grocers’ Association, Chamber of Commerce of the United States of America, Transport Motor Express, Inc., et al., G & R Roofing Co., Sibley, Lindsay & Curr Co., and Republic Industries, Inc.


text:
    No. 83-328.
    Mabry, Commissioner, Arkansas Department of Correction v. Johnson.
   C. A. 8th Cir. [Certiorari granted, 464 U. S. 1017.] Motion for appointment of counsel granted, and it is ordered that Richard Quiggle, Esquire, of Little Rock, Ark., be appointed to serve as counsel for respondent in this case.


text:
    No. 83-498.
    No. 83-573.
    Brown, Director, Department of Law and Public Safety, Division of Gaming Enforcement, State of New Jersey, et al. v. Hotel & Restaurant Employees & Bartenders International Union Local 54 et al.; and Danziger, Acting Chairman, Casino Control Commission of New Jersey, et al. v. Hotel & Restaurant Employees & Bartenders International Union Local 54 et al.
   C. A. 3d Cir. [Probable jurisdiction noted, 464 U. S. 990.] Motion of Atlantic City Casino Hotel Association et al. for leave to file a brief as amici curiae in No. 83-573 granted.


text:
    No. 83-690.
    Musto et al. v. United States.
   C. A. 3d Cir. Motion of petitioners to consolidate case with No. 82-2140, Hobby v. United States [certiorari granted, 464 U. S. 1017], denied.


text:
    No. 83-712.
    New Jersey v. T. L. O.
   Sup. Ct. N. J. [Certiorari granted, 464 U. S. 991.] Motions of National School Boards Association, Washington Legal Foundation, and New Jersey School Boards Association for leave to file briefs as amici curiae granted.


author: Justice Brennan and Justice Marshall,

text:
    No. 83-5867.
    No. 83-5868.
    Carstea et al. v. Poplar Tree Homeowners Assn. Carstea v. Poplar Tree Homeowners Assn.
   Sup. Ct. Va.; and

Sup. Ct. Va. Motions of petitioners for leave to proceed informa pauperis denied. Petitioners are allowed until February 13, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit petitions in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petitions for certiorari in these cases without reaching the merits of the motions to proceed in forma pauperis.


text:
    No. 83-899.
    In re Ronwin.
   Petition for writ of mandamus denied. Justice Rehnquist and Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 83-614.
    Securities Industry Assn. v. Board of Governors of the Federal Reserve System et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 83-916.
    United States v. Morton.
   C. A. Fed. Cir. Certiorari granted.


text:
    No. 83-904.
    Ohio v. Johnson.
   Sup. Ct. Ohio. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 82-2008.
    Nesmith v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-6758.
    Turner v. County of Siskiyou et al.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 83-204.
    Jarrett v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-258.
    Diamond v. Federal Bureau of Investigation et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-383.
    Florida v. Deconingh.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 83-454.
    Glick v. United States.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 83-494.
    Walker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-499.
    Marcus v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-508.
    Food Lion, Inc. v. Equal Employment Opportunity Commission et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-513.
    Record Data, Inc. v. United States District Court for the Northern District of Alabama (Neal et al., Real Parties in Interest).
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-585.
    Cauble, dba Cauble Enterprises v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-600.
    Apker et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-641.
    Bristol Corp., dba Fey Manufacturing Corp. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-658.
    Halbert v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-672.
    Althiser et al. v. New York State Department of Correctional Services et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 83-674.
    Mann et al. v. Federal Crop Insurance Corporation.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-676.
    Sam Rayburn Dam Electric Cooperative, Inc. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-691.
    Aluevich v. Harrah’s et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 83-719.
    Duro v. District Attorney, Second Judicial District of North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-730.
    Water Transport Assn. v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-736.
    Clifford et al. v. Grutka.
   Ct. App. Ind. Certiorari denied.


text:
    No. 83-758.
    Garcia et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-781.
    No. 83-893.
    Tilton et al. v. Jefferson County Board of Education et al.; and Jefferson County Board of Education et al. v. Tilton et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 705 F. 2d 800.


text:
    No. 83-840.
    Georgia-Pacific Corp. v. Boykin et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-846.
    Connecticut v. Thompson et al.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 83-862.
    Ammons v. Baldwin.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 83-868.
    Palmer v. City of Seattle.
   Ct. App. Wash. Certiorari denied.


text:
    No. 83-869.
    Teat v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 83-873.
    Sorrels v. J. Ray McDermott, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-878.
    Hadley v. County of Du Page et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-882.
    Miskovsky v. Tulsa Tribune Co. et al.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 83-883.
    Miskovsky v. World Publishing Co. et al.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 83-884.
    McKaskle, Acting Director, Texas Department of Corrections v. Plunkett.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-887.
    Jackson v. Consolidated Rail Corporation.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-895.
    Pearson v. Columbia Briargate Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-896.
    Shively v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-913.
    Krogul v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 83-917.
    Kroog v. Mait et al.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 83-923.
    Martin v. Alaska; and Olson v. Alaska.
   Ct. App. Alaska. Certiorari denied. Reported below: 664 P. 2d 612 (first case).


text:
    No. 83-928.
    McGaughey, aka Zigoris, et al. v. Zigoris.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 83-934.
    Greger v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-957.
    Yard-Man, Inc. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-961.
    Schellong v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-964.
    Smith v. Conner, Judge, United States District Court, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-966.
    Faith Center, Inc. v. Federal Communications Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-970.
    Pianko v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-974.
    Douglas v. Heckler, Secretary of Health and Human Services.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-987.
    Ball et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-999.
    Gaudio v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-1001.
    Robinson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1029.
    Takahashi v. Governing Board of the Livingston Union School District et al.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 83-5324.
    Greene v. Government of the Virgin Islands.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5377.
    Wilkins v. Lyles, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5388.
    Mareno v. Re, Chief Judge, United States Court of International Trade.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5403.
    Pussay v. Texas.
   Ct. Crim. App. Tex. Cer-

tiorari denied.


text:
    No. 83-5472.
    Trignani v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5475.
    Blyther v. Superior Court of the District of Columbia et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-5501.
    Dillon v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5525.
    Wages v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5527.
    Baldwin v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5538.
    Givens v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-5553.
    Lopata v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5579.
    Glover v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 83-5602.
    Johnson v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 83-5625.
    Hernandez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5696.
    Caulton v. Hospital of the Good Samaritan et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5697.
    Bryant v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5718.
    Henderson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5739.
    Bennett v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5750.
    Moore v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 83-5765.
    Johns v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 83-5794.
    Beard v. Ohio.
   Ct. App. Ohio, Butler County. Certiorari denied.


text:
    No. 83-5802.
    Milburn v. Texas.
   Ct. App. Tex., 2d Sup. Jud. Dist. Certiorari denied.


text:
    No. 83-5807.
    Wideman v. Butterworth, Warden.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-5810.
    Thomas v. Torres et al.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 83-5813.
    McMillion v. Warden, Maryland Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5816.
    Gallagher et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5823.
    Broxson v. Florida Parole and Probation Commission et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5838.
    Schuster v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5842.
    Freeman v. Marshall, Superintendent, Southern Ohio Correctional Facility.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 83-5850.
    Carpenter v. Texas.
   Ct. App. Tex., 5th Sup. Jud. Dist. Certiorari denied.


text:
    No. 83-5852.
    Schanbarger v. Third Appellate Division of the New York State Supreme Court.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 83-5854.
    Mango v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 83-5858.
    Murcer v. Jones, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5859.
    Sands v. Davis, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5860.
    Surgeon v. McNamara et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5862.
    Manko v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-5863.
    Pickard v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 83-5864.
    Etchison v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 83-5865.
    Abdullah v. Florida.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 83-5873.
    Maghe v. Oklahoma.
   C. A. 10th Cir. Certio-rari denied.


text:
    No. 83-5875.
    Hunter v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 83-5887.
    McAlpin v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5892.
    Whipple v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5894.
    Plagmann v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5896.
    McQueen v. Crews et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5901.
    Lehmer v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-5903.
    Jones v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 83-5904.
    Koon v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5920.
    Ruth v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 83-5922.
    Lehmer v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-5925.
    Hunter v. Ohio.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 83-5926.
    Perdue v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5932.
    Labruna v. United States Marshal, Western District of New York, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5934.
    Good v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 83-5937.
    Stapf v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 83-5938.
    Durham-Morgan v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5950.
    Osipova v. Dudley, Chief Justice of the Supreme Court of New York, et al.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 83-5953.
    Donate v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-5957.
    Garris v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 82-1800.
    Connecticut v. Zindros.
   Sup. Ct. Conn. Certiorari denied.

The Chief Justice would grant certiorari.


text:
    No. 83-538.
    Novelties Distribution Corp. et al. v. Molee et al.
   C. A. 3d Cir. Motion of respondent Anthony Molee for approval of attorney’s fees is denied without prejudice to applying for the relief in the United States Court of Appeals for the Third Circuit. Certiorari denied.


text:
    No. 83-661.
    Shoun v. United States.
   C. A. 6th Cir. Cer-tiorari denied.

Justice White would grant certiorari.


text:
    No. 83-678.
    Joseph Magnin Co., Inc. v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.

Justice O’Connor would grant certiorari.


text:
    No. 83-685.
    Marine Corps Exchange et al. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al.
   C. A. 9th Cir. Motion of respondent Elton Morgan for approval of attorney’s fees is denied without prejudice to applying for the relief in the United States Court of Appeals for the Ninth Circuit. Certiorari denied.


text:
    No. 83-877.
    Johnson et ux., dba Oak Farm Livestock et al. v. First National Bank of Montevideo, Minnesota.
   C. A. 8th Cir. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 83-5278.
    Eagle Elk v. United States.
   C. A. 8th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 83-5678.
    Howze v. Marshall, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Cer-tiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 83-5626.
    O’Bryan v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Motion of Washington Legal Foundation for leave to file a brief as amicus curiae granted. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 83-5735.
    Wilson v. United States; and Turner v. United States.
   Ct. App. D. C. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 83-5815.
    No. 83-5840.
    No. 83-5912.
    No. 83-5945.
    Harper v. Nebraska. Jackson v. Florida. Harding v. Arizona. Michael v. Florida.
   Sup. Ct. Neb.;

Sup. Ct. Fla.;

Sup. Ct. Ariz.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 83-5815, 214 Neb. 911, 336 N. W. 2d 597; No. 83-5840, 437 So. 2d 147; No. 83-5912, 137 Ariz. 278, 670 P. 2d 383; No. 83-5945, 437 So. 2d 138.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 82-6729.
    No. 83-131.
    No. 83-555.
    No. 83-609.
    No. 83-5411.
    No. 83-5477.
    No. 83-5497.
    No. 83-5620.
    No. 83-5666.
    Davis v. Illinois, Wainwright, Secretary, Florida Department of Corrections v. Goode, Russell Stover Candies, Inc. v. Department of Revenue of Montana, Blair et al. v. Boulger, Banks v. Alabama, Yelverton v. Blue Bell, Inc., Kish v. Benedek et al., Dean v. United States, Srubar et ux. v. Department of the Treasury, Internal Revenue Service,
   464 U. S. 1001;

464 U. S. 78;

464 U. S. 988;

464 U. S. 995;

464 U. S. 1010;

464 U. S. 998;

464 U. S. 999;

464 U. S. 1014; and

464 U. S. 1012. Petitions for rehearing denied.


text:
    January 31, 1984
    No. 83-455.
    Meachum, Director, Oklahoma Department of Corrections, et al. v. Battle et al.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    February 21, 1984
    No. 83-870.
    Connecticut et al. v. United States et al.
   Affirmed on appeal from C. A. 2d Cir.


text:
    No. 82-1888.
    Volkswagenwerk A. G. v. Falzon et al., Individually and as Next Friends of Falzon et al.
   Appeal from Sup. Ct. Mich, dismissed for want of jurisdiction.


text:
    No. 83-1076.
    National Enquirer, Inc. v. Burnett.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction.


text:
    No. 83-1205.
    Hicks v. Pennsylvania.
   Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction.


text:
    No. 83-786.
    Small v. Board of Examiners of the Nevada State Bar.
   Appeal from Sup. Ct. Nev. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-971.
    Rafter v. Higgins et al.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 83-1069.
    Sargent v. Great American Insurance Co.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-5908.
    Allen v. Iowa.
   Appeal from Sup. Ct. Iowa dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-6021.
    Rogers v. Farquar.
   Appeal from Ct. App. Cal., 4th App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-818.
    Dautremont et al. v. County of Ventura.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question.


text:
    No. 83-931.
    Allen et al. v. Board of Administration of the Public Employees’ Retirement System.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.


text:
    No. 83-1106.
    C’est La Place v. Groner Apartments.
   Appeal from Ct. App. La., 3d Cir., dismissed for want of substantial federal question.


text:
    No. 83-1131.
    Torjesen v. Smith.
   Appeal from App. Ct. Ill., 5th Dist., dismissed for want of substantial federal question.


text:
    No. 83-5528.
    Buhse v. Krueger.
   Appeal from Sup. Ct. Wis. dismissed for want of substantial federal question.


text:
    No. 83-5573.
    Young v. Texas.
   Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question.


text:
    No. 83-165.
    York International et al. v. Alabama Oxygen Co., Inc., et al.
   Appeal from Sup. Ct. Ala. Judgment vacated and case remanded for further consideration in light of Southland Corp. v. Keating, ante, p. 1. Justice O’Connor would affirm the judgment.


text:
    No. 83-208.
    Tompkins et al. v. Gargiul.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Migra v. Warren City School Dist. Bd. of Ed., ante, p. 75.


text:
    No. 83-209.
    Local Division 732, Amalgamated Transit Union, et al. v. Metropolitan Atlanta Rapid Transit Authority et al.
   Sup. Ct. Ga. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Southland Corp. v. Keating, ante, p. 1.

Justice O’Connor would deny certiorari.


text:
    No. A-455.
    Stephens v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   Motion of respondent to vacate the stay of execution of sentence of death, granted by order of Court [464 U. S. 1027], denied.


text:
    No. A-552.
    Leighton v. Dubowski et al.
   C. A. 2d Cir. Application for stay, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-565 (83-5714).
    Bruton v. United States.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-602.
    Honig, Superintendent of Public Instruction of California, et al. v. Students of California School for the Blind et al.
   D. C. E. D. Cal. Application for stay of injunction pending appeal, presented to Justice Powell, and by him referred to the Court, denied.


text:
    No. A-634.
    Fairfield v. United States.
   C. A. 11th Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-646.
    Gholson v. Texas.
   Ct. App. Tex., 14th Sup. Jud. Dist. Application for stay, presented to Justice Brennan, and by him referred to the Court, denied.

Justice Brennan would grant the application.


text:
    No. D-366.
    In re Disbarment of McMurray.
    [For earlier order herein, see 464 U. S. 911.]
   Disbarment entered.


text:
    No. D-393.
    In re Disbarment of Moushey.
   Charles L. Moushey, of Alliance, Ohio, having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on January 16, 1984 [464 U. S. 1066], is hereby discharged.


text:
    No. D-398.
    In re Disbarment of Armentrout.
   It is ordered that Eugene Lee Armentrout, of West Dundee, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-399.
    In re Disbarment of Lesesne.
   It is ordered that Thomas Petigru Lesesne III, of Charleston, S. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-400.
    In re Disbarment of Pracht.
   It is ordered that Andrew White Pracht, of Eglin, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-401.
    In re Disbarment of Ballard.
   It is ordered that Robert Kyle Ballard, Jr., of Carson, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-405.
    In re Disbarment of Gettinger.
   It is ordered that Peter Gettinger, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 35,
    Orig.
    United States v. Maine et al.
    [For earlier decision herein, see, e. g., 452 U. S. 429.]
   Report of the Special Master on the Rhode Island boundary is received and ordered filed. Exceptions to the Report, with supporting briefs, may be filed by the parties within 45 days. Replies to such Exceptions, with supporting briefs, may be filed within 30 days.


text:
    No. 84,
    Orig.
    United States v. Alaska.
    [For earlier order herein, see, e. g., 452 U. S. 913.]
   Report of the Special Master on motion of Inupiat Community of the Arctic Slope et al. for leave to intervene is received and ordered filed.