author: Chief Justice Burger

text:
    MARINE BANK v. WEAVER et ux.
    No. 80-1562.
    Argued January 11, 1982
    Decided March 8, 1982

      Burger, C. J., delivered the opinion for a unanimous Court.

      Daniel L. R. Miller argued the cause for petitioner. With him on the brief was Christine Hall McClure.

      Andrew J. Conner argued the cause and filed a brief for respondents.

      Briefs of amici curiae urging reversal were filed by Acting Solicitor General Wallace, Stephen M. Shapiro, Ralph C. Ferrara, Frank L. Skillem, Jr., and JohnE. Shockey for the United States; and by William H. Smith, Johanna M. Sabol, and Michael F. Crotty for the American Bankers Association.

        Leonard I. Schreiber filed a brief for Myma Ayala as amicus curiae urging affirmance.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether two instruments, a conventional certificate of deposit and a business agreement between two families, could be considered securities under the antifraud provisions of the federal securities laws.

J — I

Respondents, Sam and Alice Weaver, purchased a $50,000 certificate of deposit from petitioner Marine Bank on February 28, 1978. The certificate of déposit has a 6-year maturity, and it is insured by the Federal Deposit Insurance Corporation. The Weavers subsequently pledged the certificate of deposit to Marine Bank on March 17, 1978, to guarantee a $65,000 loan made by the bank to Columbus Packing Co. Columbus was a wholesale slaughterhouse and retail meat market which owed the bank $33,000 at that time for prior loans and was also substantially overdrawn on its checking account with the bank.

In consideration for guaranteeing the bank’s new loan, Columbus’ owners, Raymond and Barbara Piccirillo, entered into an agreement with the Weavers. Under the terms of the agreement, the Weavers were to receive 50% of Columbus’ net profits and $100 per month as long as they guaranteed the loan. It was also agreed that the Weavers could use Columbus’ barn and pasture at the discretion of the Piccirillos, and that they had the right to veto future borrowing by Columbus.

The Weavers allege that bank officers told them Columbus would use the $65,000 loan as working capital but instead it was immediately applied to pay Columbus’ overdue obligations. The bank kept approximately $42,800 to satisfy its prior loans and Columbus’ overdrawn checking account. All but $3,800 of the remainder was disbursed to pay overdue taxes and to satisfy other creditors; the bank then refused to permit Columbus to overdraw its checking account. Columbus became bankrupt four months later. Although the bank had not yet resorted to the Weavers’ certificate of deposit at the time this litigation commenced, it acknowledged that its other security was inadequate and that it intended to claim the pledged certificate of deposit.

These allegations were asserted in a complaint filed in the Federal District Court for the Western District of Pennsylvania in support of a claim that the bank violated § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j(b). The Weavers also pleaded pendent claims for violations of the Pennsylvania Securities Act and for common-law fraud by the bank. The Weavers alleged that bank officers actively solicited them to guarantee the $65,000 loan to Columbus while knowing, but not disclosing, Columbus’ financial plight or the bank’s plans to repay itself from the new loan guaranteed by the Weavers’ pledged certificate of deposit. Had they known of Columbus’ precarious financial condition and the bank’s plans, the Weavers allege they would not have guaranteed the loan and pledged the certificate of deposit. The District Court granted summary judgment in favor of the bank. It concluded that if a wrong occurred it did not take place “in connection with the purchase . or sale of any security,” as required for liability under § 10(b). The District Court declined to exercise pendent jurisdiction over the state-law claims.

The Court of Appeals for the Third Circuit reversed. 637 F. 2d 157 (1980). A divided court held that a finder of fact could reasonably conclude that either the certificate of deposit or the agreement between the Weavers and the Piccirillos was a security. It therefore remanded for further consideration of the claim based on the federal securities laws. The Court of Appeals also reversed the District Court’s dismissal of the pendent state-law claims.

We granted certiorari, 452 U. S. 904 (1981), and we reverse. We hold that neither the certificate of deposit nor the agreement between the Weavers and the Piceirillos is a security under the antifraud provisions of the federal securities laws. We remand the case to the Court of Appeals to determine whether the pendent state claims should now be entertained.

II

The definition of “security” in the Securities Exchange Act of 1934 is quite broad. The Act was adopted to restore investors’ confidence in the financial markets, and the term “security” was meant to include “the many types of instruments that in our commercial world fall within the ordinary concept of a security.” H. R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933); quoted in United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 847-848 (1975). The statutory definition excludes only currency and notes with a maturity of less than nine months. It includes ordinary stocks and bonds, along with the “countless and variable schemes devised by those who seek the use of the money of others on the promise of profits . . . .” SEC v. W. J. Howey Co., 328 U. S. 293, 299 (1946). Thus, the coverage of the antifraud provisions of the securities laws is not limited to instruments traded at securities exchanges and over-the-counter markets, but extends to uncommon and irregular instruments. Superintendent of Insurance of New York v. Bankers Life & Casualty Co., 404 U. S. 6, 10 (1971); SEC v. C. M. Joiner Leasing Corp., 320 U. S. 344, 351 (1943). We have repeatedly held that the test “ ‘is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect.”’ SEC v. United Benefit Life Ins. Co., 387 U. S. 202, 211 (1967), quoting SEC v. C. M. Joiner Leasing Corp., supra, at 352-353.

The broad statutory definition is preceded, however, by the statement that the terms mentioned are not to be considered securities if “the context otherwise requires . . . .” Moreover, we are satisfied that Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud. Great Western Bank & Trust v. Kotz, 532 F. 2d 1252, 1253 (CA9 1976); Bellah v. First National Bank, 495 F. 2d 1109, 1114 (CA5 1974).

Ill

The Court of Appeals concluded that the certificate of deposit purchased by the Weavers might be a security. Examining the statutory definition, n. 3, supra, the court correctly noted that the certificate of deposit is not expressly excluded from the definition since it is not currency and it has a maturity exceeding nine months. It concluded, however, that the certificate of deposit was the functional equivalent of the withdrawable capital shares of a savings and loan association held to be securities in Tcherepnin v. Knight, 389 U. S. 332 (1967). The court also reasoned that, from an investor’s standpoint, a certificate of deposit is no different from any other long-term debt obligation. Unless distinguishing features were found on remand, the court concluded that the certificate of deposit should be held to be a security.

Tcherepnin is not controlling. The withdrawable capital shares found there to be securities did not pay a fixed rate of interest; instead, purchasers received dividends based on the association’s profits. Purchasers also received voting rights. In short, the withdrawable capital shares in Tcherepnin were much more like ordinary shares of stock and “the ordinary concept of a security,” supra, at 556, than a certificate of deposit.

The Court of Appeals’ also concluded that a certificate of deposit is similar to any other long-term debt obligation commonly found to be a security. In our view, however, there is an important difference between a bank certificate of deposit and other long-term debt obligations. This certificate of deposit was issued by a federally regulated bank which is subject to the comprehensive set of regulations governing the banking industry. Deposits in federally regulated banks are protected by the reserve, reporting, and inspection requirements of the federal banking laws; advertising relating to the interest paid on deposits is also regulated. In addition, deposits are insured by the Federal Deposit Insurance Corporation. Since its formation in 1933, nearly all depositors in failing banks insured by the FDIC have received payment in full, even payment for the portions of their deposits above the amount insured. 1980 Annual Report of the Federal Deposit Insurance Corporation 18-21 (1981).

We see, therefore, important differences between a certificate of deposit purchased from a federally regulated bank and other long-term debt obligations. The Court of Appeals failed to give appropriate weight to the important fact that the purchaser of a certificate of deposit is virtually guaranteed payment in full, whereas the holder of an ordinary long-term debt obligation assumes the risk of the borrower’s insolvency. The definition of “security” in the 1934 Act provides that an instrument which seems to fall within the broad sweep of the Act is not to be considered a security if the context otherwise requires. It is unnecessary to subject issuers of bank certificates of deposit to liability under the antifraud provisions of the federal securities laws since the holders of bank certificates of deposit are abundantly protected under the federal banking laws. We therefore hold that the certificate of deposit purchased by the Weavers is not a security.

t> H-*

The Court of Appeals also held that a finder of fact could conclude that the separate agreement between the Weavers and the Piccirillos is a security. Examining the statutory language, n. 3, supra, the court found that the agreement might be a “certificate of interest or participation in any profit-sharing agreement” or an “investment contract.” It stressed that the agreement gave the Weavers a share in the profits of the slaughterhouse which would result from the efforts of the Piccirillos. Accordingly, in that court’s view, the agreement fell within the definition of “investment contract” stated in Howey, because “the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” 328 U. S., at 301.

Congress intended the securities laws to cover those instruments ordinarily and commonly considered to be securities in the commercial world, but the agreement between the Weavers and the Piccirillos is not the type of instrument that comes to mind when the term “security” is used and does not fall within “the ordinary concept of a security.” Supra, at 556. The unusual instruments found to constitute securities in prior cases involved offers to a number of potential investors, not a private transaction as in this case. In Howey, for example, 42 persons purchased interests in a citrus grove during a 4-month period. 328 U. S., at 295. In C. M. Joiner Leasing, offers to sell oil leases were sent to over 1,000 prospects. 320 U. S., at 346. In C. M, Joiner Leasing, we noted that a security is an instrument in which there is “common trading.” Id., at 351. The instruments involved in C. M. Joiner Leasing and Howey had equivalent values to most persons and could have been traded publicly.

Here, in contrast, the Piccirillos distributed no prospectus to the Weavers or to other potential investors, and the unique agreement they negotiated was not designed to be traded publicly. The provision that the Weavers could use the bam and pastures of the slaughterhouse at the discretion of the Piccirillos underscores the unique character of the transaction. Similarly, the provision that the Weavers could veto future loans gave them a measure of control over the operation of the slaughterhouse not characteristic of a security. Although the agreement gave the Weavers a share of the Piccirillos’ profits, if any, that provision alone is not sufficient to make that agreement a security. Accordingly, we hold that this unique agreement, negotiated one-on-one by the parties, is not a security.

V

Whatever may be the consequences of these transactions, they did not occur in connection with the purchase or sale of “securities.” The Weavers allege that the bank manipulated them so that they would suffer the loss the bank would have borne from the failure of the Columbus Packing Co. Their pendent state-law claims against the bank are not before the Court since the Court of Appeals did not treat the issue of those claims. Accordingly, the case is remanded for consideration of whether the District Court should now entertain the pendent claims.

Reversed and remanded.

       The certificate of deposit pays 772% interest and provides that, if the bank permits early withdrawal, the depositor will earn interest at the bank’s current savings passbook rate on the amount withdrawn, except that no interest will be paid for the three months prior to withdrawal. When the Weavers purchased the certificate of deposit, it could only be insured up to $40,000 by the FDIC. The ceiling on insured deposits is now $100,000. Act of Mar. 31, 1980, Pub. L. 96-221, 94 Stat. 147, § 308(b)(1), 12 U. S. C. § 1724(b) (1976 ed., Supp. IV).

       The Court of Appeals also concluded that the pledge of a security is a sale, an issue on which the Federal Circuits were split. We held in Rubin v. United States, 449 U. S. 424 (1981), that a pledge of stock is equivalent to a sale for the purposes of the antifraud provisions of the federal securities laws. Accordingly, in determining whether fraud may have occurred here “in connection with the purchase or sale of any security,” the only issue now before the Court is whether a security was involved.

       Section 3(a)(10) of the 1934 Act, as set forth in 15 U. S. C. § 78c(a)(10), provides:
      “(a) . . . When used in this chapter, unless the context otherwise requires—
      “(10) The term ‘security’ means any note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit, for a security, or in general, any instrument commonly known as a ‘security’; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity is likewise limited.”
      We have consistently held that the definition of “security” in the 1934 Act is essentially the same as the definition of “security” in § 2(1) of the Securities Act of 1933,15 U. S. C. § 77(b)(1), United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 847, n. 12 (1975).

       Fitzgibbon, What is a Security? A Redefinition Based on Eligibility to Participate in the Financial Markets, 64 Minn. L. Rev. 893, 912-918 (1980).

       The definition of a “security” in the 1934 Act, n. 3, supra, includes the term, “certificate of deposit, for a security.” However, this term does not refer to certificates of deposit such as the Weavers purchased. Instead, “certificate of deposit, for a security” refers to instruments issued by protective committees in the course of corporate reorganizations. Canadian Imperial Bank of Commerce v. Fingland, 615 F. 2d 465, 468 (CA7 1980).

       In addition, the Court of Appeals noted that the Securities and Exchange Commission had taken the position that certificates of deposit are securities. However, the SEC has filed a brief as amicus curiae in this case, jointly with the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, and the Office of the Comptroller of the Currency, which argues that the Weavers’ certificate of deposit is not a security.

       In Teamsters v. Daniel, 439 U. S. 551 (1979), we held that a honcon-tributory, compulsory pension plan was not a security. One of our reasons for our holding in Daniel was that the pension plan was regulated by the Employee Retirement Income Security Act of 1974 (ERISA): “The existence of this comprehensive legislation governing the use and terms of employee pension plans severely undercuts all arguments for extending the Securities Acts to noncontributory, compulsory pension plans.” Id., at 569-570. Since ERISA regulates the substantive terms of pension plans, and also requires certain disclosures, it was unnecessary to subject pension plans to the requirements of the federal securities laws as well.

       See, e. g., 12 U. S. C. §461(b) (1976 ed., Supp. IV) (reserve requirements); 12 U. S. C. §§ 161, 324, and 1817 (1976 ed. and Supp. IV) (reporting requirements); 12 U. S. C. §§481, 483, and 1820(b) (1976 ed. and Supp. IV) (inspection requirements); 12 CFR §§217.6 and 329.8 (1981) (advertising).

       We reject respondents’ argument that the certificate of deposit was somehow transformed into a security when it was pledged, even though it was not a security when purchased.

       Cf. Great Western Bank & Trust v. Kotz, 532 F. 2d 1252, 1260-1262 (CA9 1976) (Wright, J., concurring) (unsecured note, the terms of which were negotiated face-to-face, given to a bank in return for a business loan, is not a security).

       It does not follow that a certificate of deposit or business agreement between transacting parties invariably falls outside the definition of a “security” as defined by the federal statutes. Each transaction must be analyzed and evaluated on the basis of the content of the instruments in question, the purposes intended to be served, and the factual setting as a whole.


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    UNITED MINE WORKERS OF AMERICA HEALTH & RETIREMENT FUNDS et al. v. ROBINSON et al.
    No. 81-61.
    Argued January 13, 1982
    Decided March 8, 1982

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

      E. Calvin Golumbic argued the cause for petitioners. With him on the briefs was William F. Hanrakan.

      Larry F. Sword argued the cause for respondents. With him on the brief was John M. Rosenberg.

      Briefs of amici curiae urging reversal were filed by J. Albert Woll, Laurence Gold, Julia Penny Clark, and George Kaufrmnn for the AFL-CIO; and by Charles P. O’Connor and James H. Lengel for the Bituminous Coal Operators’ Association, Inc.

        Gill Deford, Neal S. Dudovitz, and Bruce K. Miller filed a brief for the National Black Lung Association as amicus curiae urging affirmance.

   Justice Stevens

delivered the opinion of the Court.

This case involves a discrimination between two classes of widows of coal miners who died prior to December 6, 1974— those whose husbands were receiving pensions when they died and those whose husbands were still working although they were eligible for pensions. The 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators’ Association, Inc., increased the health benefits for widows in the former class but made no increase for those in the latter class. The United States Court of Appeals for the District of Columbia Circuit held that this discrimination was arbitrary and therefore violated § 302(c)(5) of the Labor Management Relations Act of 1947 (LMRA). 205 U. S. App. D. C. 330, 640 F. 2d 416 (1981). We granted certiorari to decide whether § 302(c)(5) authorizes federal courts to review for reasonableness the provisions of a collective-bargaining agreement allocating health benefits among potential beneficiaries of an employee benefit trust fund. 454 U. S. 814.

HM

A description of the origin of the discrimination may explain why the Court of Appeals considered it arbitrary. The 1950 collective-bargaining agreement between the union and the operators established a fund to provide pension, health, and other benefits for certain miners and their dependents. That agreement defined the operators’ obligation to contribute to the fund but delegated the authority to define the amount of benefits and the conditions of eligibility to the trustees of the fund. In 1967 the trustees adopted two resolutions governing benefits for widows. Under the first, a widow of a retired miner who was receiving a pension at the time of his death was entitled to a death benefit of $2,000 payable over a 2-year period, and a widow of a miner who was eligible for a pension but who was still working at the time of his death was entitled to a $5,000 benefit payable over a 5-year period. The second resolution authorized hospital and medical-care benefits for unremarried widows of deceased miners while they were receiving the widows’ benefit authorized by the first resolution. The effect of these two resolutions was to provide a greater health benefit for widows of working miners who were eligible for pensions than for widows of miners who were receiving pension benefits.

In 1974, because of their concerns about compliance with minimum funding standards of the recently enacted Employee Retirement Income Security Act (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq. (1976 ed. and Supp. IV), and about the actuarial soundness of the 1950 fund, the union and the operators agreed to restructure the industry’s benefit program. They agreed that the amount of benefits and the eligibility requirements, as well as the level of contributions, should be specified in their collective-bargaining agreement. They also decided to replace the single 1950 fund with four separate funds, two of which provided pension benefits while two others, the “1950 Benefit Trust” and the “1974 Benefit Trust,” provided health and death benefits. The 1950 Benefit Trust, which is at issue in this case, extended lifetime health coverage to certain widows of miners who died before December 6, 1974, the effective date of the 1974 collective-bargaining agreement.

During the 1974 negotiations, the union originally demanded that all unremarried widows who were entitled to health benefits for either two years or five years under the old plan be extended lifetime health coverage. Both the amount and the uncertainty of the cost of such coverage for these widows concerned the operators. Relatively early in the negotiations they nevertheless accepted the demand as it related to widows of miners who would die after the agreement became effective, but they objected to the requested increase for widows of already deceased miners. The operators estimated that the latter class consisted of between 25,000 and 50,000 widows, whereas the union’s estimate was approximately 40,000. Of that total, about 10% were believed to be widows of miners who had been working at the time of their death, even though eligible for pensions, and thus already had been entitled to five years of health benefits. In the final stages of the 1974 negotiations, after a strike had begun, the operators made a package proposal to the union that excluded this smaller group of perhaps 4,000 or 5,000 widows from any increased health benefits. Besides making it possible to conclude an otherwise acceptable, complex collective-bargaining agreement and to avoid a prolonged strike, the union received no separately identifiable quid pro quo for the rejection of this portion of its demands.

II

Respondents are widows of coal miners who died in 1967 and 1971, respectively. Their husbands were over age 55, had been employed in the industry for over 20 years, and had spent most of their careers in the employ of contributing employers. They were eligible for pensions but were still working at the time of their deaths. Under the 1950 plan, respondents were entitled to $5,000 death benefits and health benefits for five years. They received no additional benefits from the 1974 agreement. Had their husbands applied for the pensions for which they were eligible, they now would be entitled to lifetime health coverage.

On their own behalf and as representatives of a class of similarly situated widows and dependents of deceased coal miners, respondents brought this action against the trustees of the funds in the United States District Court for the District of Columbia. They alleged that the requirement that a miner actually be receiving a pension for which he was eligible at the time of his death in order to make his survivors eligible for lifetime health benefits has no rational relationship with the purposes of the trust funds and therefore was illegal under §302 of the LMRA. They prayed that the requirement be declared null and void and that the trustees be ordered to pay to them health benefits retrospectively and prospectively.

After certifying the respondents’ class, and after indicating that the plaintiffs had made a prima facie showing of arbitrariness, the court scheduled a hearing to give the petitioners an opportunity to prove that the discrimination against respondents was not arbitrary. At that hearing the District Court received documents prepared during the 1974 collective-bargaining negotiations and heard the testimony of participants in those negotiations. Based on that evidence, the District Court found that “the question of whether or not to provide plaintiffs the benefits they now seek was the subject of explicit, informed and intense bargaining.” App. to Pet. for Cert. 25a. The court rejected the argument that the eligibility requirement was arbitrary and capricious and held that “the trustees are bound to adhere to the terms of the agreement.” Ibid. The court concluded:

“Public policy dictates the limited role of courts in reviewing collectively bargained agreements. The familiar history of the anguished relations between the bargaining parties in this case only underscores the delicacy of the balance set in each agreement. Plaintiffs’ relief, if indeed any is due, cannot come from the courts.” Ibid.

A divided panel of the Court of Appeals reversed. Relying on the § 302(c)(5) requirement that jointly administered pension trusts be maintained “for the sole and exclusive benefit of the employees of [the contributing] employer, and their families and dependents,” the court held that any rule denying benefits to employees on whose behalf significant contributions had been made must be explained to its satisfaction, particularly if benefits were authorized for others who had worked a lesser period of time for contributing employers. 205 U. S. App. D. C., at 335, 640 F. 2d, at 421. In this case, the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners. Specifically, the court held that it was “not enough that the particular eligibility standards were adopted simply because that enabled resolution of a collective bargaining dispute.” Id., at 338, 640 F. 2d, at 424. Recognizing the legitimacy of a concern about actuarial soundness of pension trust funds, the court held that “financial integrity must be secured by methods dividing beneficiaries from nonbeneficiaries on lines reasonably calculated to further the fund’s purposes.” Id., at 337-338, 640 F. 2d, at 423-424.

Judge Robb, in dissent, agreed with the reasoning of the District Court and added the observation that the discrimination against widows of active miners was rational because those widows had received a larger death benefit than widows of pensioners, and because their needs may have been lesser than those of the families of pensioners since their husbands had continued to work after they were eligible for pensions.

Ill

The Court of Appeals held that the requirement in § 302(c)(5) that an employee benefit trust fund be maintained “for the sole and exclusive benefit of the employees . . . and their families and dependents” means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard. The statutory language hardly embodies this reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. Indeed, this has been this Court’s consistent interpretation of § 302(c)(5).

Just last Term, the Court reiterated that “the ‘sole purpose’ of § 302(c)(5) is to ensure that employee benefit trust funds ‘are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them ....’” NLRB v. Amax Coal Co., 453 U. S. 322, 331 (quoting 93 Cong. Rec. 4678 (1947), reprinted in 2 Legislative History of the Labor Management Relations Act, 1947, p. 1305 (Leg. Hist. LMRA)). See Arroyo v. United States, 359 U. S. 419, 425-426. Accord, Walsh v. Schlecht, 429 U. S. 401, 410-411; Lewis v. Benedict Coal Corp., 361 U. S. 459, 474 (Frankfurter, J., dissenting). This reading is amply supported by the legislative history. See, e. g., 93 Cong. Rec. 4877 (1947), 2 Leg. Hist. LMRA, at 1312; 93 Cong. Rec., at 4752-4753, 2 Leg. Hist. LMRA, at 1321-1322. The section was meant to protect employees from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to the private benefit of faithless union leaders. Proponents of this section were concerned that pension funds administered entirely by union leadership might serve as “war chests” to support union programs or political factions, or might become vehicles through which “racketeers” accepted bribes or extorted money from employers.

Our interpretation of the purpose of the “sole and exclusive benefit” requirement is reinforced by the other requirements of § 302(c)(5). Section 302(c)(5) is an exception in a criminal statute that broadly prohibits employers from making direct or indirect payments to unions or union officials. Each of the specific conditions that must be satisfied to exempt employer contributions to pension funds from the criminal sanction is consistent with the nondiversion purpose. The fund must be established “for the sole and exclusive benefit” of employees and their families and dependents; contributions must be held in trust for that purpose and must be used exclusively for health, retirement, death, disability, or unemployment benefits; the basis for paying benefits must be specified in a written agreement; and the fund must be jointly administered by representatives of management and labor. All the conditions in the section fortify the basic requirement that employer contributions be administered for the sole and exclusive benefit of employees. None of the conditions places any restriction on the allocation of the funds among the persons protected by § 302(c)(5).

The Court of Appeals did not attempt to ground its holding on the text or legislative history of § 302(c)(5). Rather, the court relied upon cases in which trustees of employee benefit trust funds, not the collective-bargaining agreement, fixed the eligibility rules and benefit levels. The Court of Appeals has held in those cases “that the Trustees have ‘full authority . . . with respect to questions of coverage and eligibility’ and that the court’s role is limited to ascertaining whether the Trustees’ broad discretion has been abused by the adoption of arbitrary or capricious standards.” Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950, 171 U. S. App. D. C. 1, 9, 517 F. 2d 1275, 1283 (1975) (en banc) (footnote omitted). Noting that “[t]he institutional arrangements creating this Fund and specifying the purposes to which it is to be devoted are cast expressly in fiduciary form,” the court stated that “the Trustees, like all fiduciaries, are subject to judicial correction in a proper case upon a showing that they have acted arbitrarily or capriciously towards one of the persons to whom their trust obligations run.” Kosty v. Lewis, 115 U. S. App. D. C. 343, 346, 319 F. 2d 744, 747 (1963), cert. denied, 375 U. S. 964. Those cases, however, provide no support for the Court of Appeals’ holding in this case. The petitioner trustees were not given “full authority” to determine eligibility requirements and benefit levels, for these were fixed by the 1974 collective-bargaining agreement. By the terms of the trust created by that agreement, the trustees are obligated to enforce these determinations unless modification is required to comply with applicable federal law. The common law of trusts does not alter this obligation. See NLRB v. Amax Coal Co., 453 U. S., at 336-337; Restatement (Second) of Trusts §164 (1959). Cf. 29 U. S. C. § 1104(a)(1)(D) (1976 ed., Supp. IV). Absent- conflict with federal law, then, the trustees breached no fiduciary duties in administering the 1950 Benefit Trust in accordance with the terms established in the 1974 collective-bargaining agreement.

Section 302(c)(5) plainly does not impose the Court of Appeals’ reasonableness requirement, and respondents do not offer any alternative federal law to sustain the court’s holding. There is no general requirement that the complex schedule of the various employee benefits must withstand judicial review under an undefined standard of reasonableness. This is no less true when the potential beneficiaries subject to discriminatory treatment are not members of the bargaining unit; we previously have recognized that former members and their families may suffer from discrimination in collective-bargaining agreements because the union need not “affirmatively . . . represent [them] or . . . take into account their interests in making bona fide economic decisions in behalf of those whom it does represent.” Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 181, n. 20. Moreover, because finite contributions must be allocated among potential beneficiaries, inevitably financial and actuarial considerations sometimes will provide the only justification for an eligibility condition that discriminates between different classes of potential applicants for benefits. As long as such conditions do not violate federal law or policy, they are entitled to the same respect as any other provision in a collective-bargaining agreement.

The substantive terms of jointly administered employee benefit plans must comply with the detailed and comprehensive standards of the ERISA. The terms of any collective-bargaining agreement must comply with federal laws that prohibit discrimination on grounds of race, color, religion, sex, or national origin; that protect veterans; that regulate certain industries; and that preserve our competitive economy. Obviously, an agreement must also be substantively consistent with the National Labor Relations Act, 29 U. S. C. § 151 et seq Moreover, in the collective-bargaining process, the union must fairly represent the interests of all employees in the unit. But when neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract.

The record in this case discloses no violation of § 302(c)(5) or of any other federal law. The judgment of the Court of Appeals is therefore reversed.

It is so ordered.

       That section provides in relevant part:
      “The provisions of this section [forbidding transfers between employer and representatives of employees] shall not be applicable ... (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurancé to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon . . . ; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pension or annuities. . . .” 61 Stat. 157, as amended, 29 U. S. C. § 186(c) (1976 ed., Supp. IV).

       The National Bituminous Coal Wage Agreement of 1950, in creating the United Mine Workers of America Welfare and Retirement Fund of 1950, provided in part:
      “Subject to the stated purposes of this Fund, the Trustees shall have full authority, within the terms and provisions of the ‘Labor-Management Relations Act, 1947,’ and other applicable law, with respect to questions of coverage and eligibility, priorities among classes of benefits, amounts of benefits, methods of providing or arranging for provisions for benefits, investment of trust funds, and all other related matters.” App. to Pet. for Cert. 78a.

       Resolution No. 68, adopted on January 19, 1967, established “a Widows and Survivors Benefit of five thousand dollars ($5,000.00) as a result of the death of miners who at the time of death were regularly employed in a classified job in the bituminous coal industry by coal operators signatory to the National Bituminous Coal Wage Agreement of 1950, as amended, other than those exempted from said Agreement, and two thousand dollars ($2,000.00) in the event of the death of miners who at the time of death were receiving Trust Fund pensions and not employed outside the coal industry. . . .” App. to Pet. for Cert. 82a. The $5,000 benefit was payable in 60 monthly installments and the $2,000 benefit was payable in 22 monthly installments. Id., at 85a.

         Resolution No. 69, also adopted on January 19, 1967, provided in part: “The following persons shall be eligible for benefits herein provided for hospital and medical care . . . : .
      “5. Unremarried widows and unmarried dependent children under twenty-two (22) years of age of deceased miners described in Subpara-graph B of this Paragraph I as long as they are the recipients of Widows and Survivors Benefits provided in Paragraph II of Resolution No. 68.” App. to Pet. for Cert. 90a.

       Article II, E(3), of the 1950 Benefit Trust provides that lifetime health benefits shall be provided to the survivors “of a miner who died. . . [pjrior to the effective date of this Plan ... at a time when he was receiving a retirement or disability pension under the eligibility rules then in effect of the United Mine Workers of America Welfare and Retirement Fund of 1950.” App. to Pet. for Cert. 114a. “By the trustee’s interpretation, this clause applies to survivors of miners who died while collecting pensions and, as well, to survivors of those who, though not actually receiving retirement payments at death, had ceased work and applied for them. This construction, however, excludes widows and dependents of those miners who were eligible for pensions but who continued working and later died before applying for health-care benefits.” 205 U. S. App. D. C. 330, 333, 640 F. 2d 416, 419 (1981) (footnotes omitted).

       Federal district courts have jurisdiction to restrain violations of § 302. 29 U. S. C. § 186(e).

       “The class represents all surviving spouses and dependents of deceased miners who satisfied the age and service requirements for pension benefits at the time of death and who
      “(1) were working in classified service in the coal industry at the time of death and had not applied for a pension, or
      “(2) had applied for and were eligible to receive pension benefits but were not receiving such benefits at the time of death because of their return to classified service in the coal industry.” 449 F. Supp. 941, 942 (1978).

       The Court in Arroyo stated:
      “Those members of Congress who supported [§ 302] were concerned with corruption of collective bargaining through bribery of employee representatives by employers, with extortion by employee representatives, and with the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control. Congressional attention was focussed particularly upon the latter problem because of the demands which had then recently been made by a large international union for the establishment of a welfare fund to be financed by employers’ contributions and administered exclusively by union officials. See United States v. Ryan, 350 U. S. 299.
      “Congress believed that if welfare funds were established which did not define with specificity the benefits payable thereunder, a substantial danger existed that such funds might be employed to perpetuate control of union officers, for political purposes, or even for personal gain. See 92 Cong. Rec. 4892-4894, 4899, 5181, 5345-5346; S. Rep. No. 105,80th Cong., 1st Sess., at 52; 93 Cong. Rec. 4678, 4746-4747. To remove these dangers, specific standards were established to assure that welfare funds would be established only for purposes which Congress considered proper and expended only for the purposes for which they were established. See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv. L. Rev. 274, 290” (footnotes omitted).

       Senator Taft, the primary author of the LMRA, stated:
      “Certainly unless we impose some restrictions we shall find that the welfare fund will become merely a war chest for the particular union, and that the employees for whose benefit it is supposed to be established, for certain definite welfare purposes, will have no legal rights and will not receive the kind of benefits to which they are entitled after such deductions from their wages.”

       Senator Ball, one of the sponsors of the floor amendment that became § 302, stated:
      “All that is sought to be done by the amendment is to protect the rights of employees. After all, on any reasonable basis, payments by an employer to such a fund are in effect compensation to his employees. All that is sought to be done in the amendment is to see to it that the rights of employees in the fund are protected. . . .
      “In other words, when the union has complete control of this fund, when there is no detailed provision in the agreement creating the fund respecting the benefits which are to go to employees, the union and its leadership will always come first in the administration of the fund, and the benefits to which the employees supposedly are entitled will come second.”

       See NLRB v. Amax Coal Co., 453 U. S. 322, 328-329; H. R. Rep. No. 510, 80th Cong., 1st Sess., 66-67 (1947), 1 Leg. Hist. LMRA, at 570-571.

       In NLRB v. Amax Coal Co., supra, at 330, the Court held that in enacting § 302(c)(5) “Congress intended to impose on trustees traditional fiduciary duties.” The Court did not decide, nor do we decide today, whether federal courts sitting as courts of equity are authorized to enforce those duties. It is, of course, clear that compliance with the specific standards of § 302(c)(5) in the administration of welfare funds is enforceable in federal district courts under § 302(e) of the LMRA. See Arroyo v. United States, 359 U. S. 419, 426-427.

       “The Trustees are authorized, upon approval by the Employers and the Union, to make such changes in the Plans and Trusts hereunder as they may deem to be necessary or appropriate.
      “They are also authorized and directed, after adquate notice and consultation with the Employers and Union, to make such changes in the Plans and Trusts hereunder, including any retroactive modifications or amendments, which shall be necessary:
      “(a) to conform the terms of each Plan and Trust to the requirements of ERISA, or any other applicable federal law, and the regulations issued thereunder;
      “(d) to comply with all applicable court or government decisions or ruling.” National Bituminous Coal Wage Agreement of 1974, art. XX, § (h)(5), App. to Pet. for Cert. 106a.

       We also recognized that these persons are not without protection: “Under established contract principles, vested retirement rights may not be altered without the pensioner’s consent. See generally Note, 70 Col. L. Rev. 909, 916-920 (1970). The retiree, moreover, would have a federal remedy under § 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed. See Smith v. Evening News Assn., 371 U. S. 195, 200-201 (1962); Lewis v. Benedict Coal Corp., 361 U. S. 459, 470 (1960).” 404 U. S., at 181, n. 20.

       See, e. g., Franks v. Bowman Transportation Co., 424 U. S. 747 (Title VII of the Civil Rights Act of 1964); Corning Glass Works v. Brennan, 417 U. S. 188 (Equal Pay Act).

       See, e. g., Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U. S. 275, 285.

       See, e. g., Norfolk & Western R. Co. v. Nemitz, 404 U. S. 37.

       See, e. g., Mine Workers v. Pennington, 381 U. S. 657.

       See, e. g., NLRB v. Magnavox Co., 415 U. S. 322; Radio Officers v. NLRB, 347 U. S. 17.

       See, e. g., Vaca v. Sipes, 386 U. S. 171, 177; Syres v. Oil Workers, 350 U. S. 892; Ford Motor Co. v. Huffman, 345 U. S. 330; Steele v. Louisville & Nashville R. Co., 323 U. S. 192. See also Railroad Trainmen v. Howard, 343 U. S. 768.

       See, e. g., Carbon Fuel Co. v. Mine Workers, 444 U. S. 212, 218-219; H. K. Porter Co. v. NLRB, 397 U. S. 99, 105-108; NLRB v. Insurance Agents, 361 U. S. 477, 488; Teamsters v. Oliver, 358 U. S. 283, 295-296; NLRB v. American National Ins. Co., 343 U. S. 395, 404.


author: Justice O’Connor

text:
    BREAD POLITICAL ACTION COMMITTEE et al. v. FEDERAL ELECTION COMMISSION et al.
    No. 80-1481.
    Argued January 19, 1982
    Decided March 8, 1982
    O’Connor, J., delivered the opinion for a unanimous Court.

      Jeffrey Cole argued the cause for appellants. With him on the briefs was Stanley T. Kaleczyc.

      Charles N. Steele argued the cause for appellees. With him on the brief was Richard B. Bader.

   Justice O’Connor

delivered the opinion of the Court.

Section 310(a) of the Federal Election Campaign Act of 1971 (FECA), 88 Stat. 1285, as amended, 2 U. S. C. §437h(a) (1976 ed., Supp. IV), lists three categories of plaintiffs who may challenge the constitutional validity of FECA in specially expedited suits: (1) the Federal Election Commission (FEC), (2) “the national committee of any political party,” and (3) “any individual eligible to vote in any election for the office of President.” In this case, we address a question we expressly reserved in California Medical Assn. v. FEC, 453 U. S. 182, 187, n. 6 (1981): whether a party not belonging to one of the three categories listed in § 437h(a) may nonetheless invoke its procedures.

I

The appellants are two trade associations and three political action committees (PAC’s): the National Restaurant Association and its associated PAC, the Restaurateurs Political Action Committee, the National Lumber and Building Material Dealers Association and its associated PAC, the Lumber Dealers Political Action Committee, and the Bread Political Action Committee, the PAC associated with the American Bakers Association. In order to challenge the validity of 2 U. S. C. § 441b(b)(4)(D), which has the effect of limiting the extent to which trade associations and their PAC’s may solicit funds for political purposes, the appellants filed an action in the United States District Court for the Northern District of Illinois, seeking expedited consideration of their suit under the procedures set forth in §437h. The District Court denied certification under §437h on the ground that the plaintiff trade associations and PAC’s do not belong to any of the three categories of plaintiffs fisted in § 437h(a) as eligible to invoke its expedited procedures. On an interlocutory appeal from this ruling, a panel of the Court of Appeals reversed, holding that § 437h(a) is available for use by plaintiffs whether they belong to an enumerated category or not. 591 F. 2d 29 (CA7 1979). On remand, the District Court, as required by § 437h, first made findings of fact and then certified the case back to the Court of Appeals sitting en banc for a determination on the constitutional questions raised by the appellants. The en banc court declined to overrule the earlier panel decision regarding the reach of § 437h(a), and proceeded to the merits of the appellants’ claims, upholding the constitutionality of the challenged provisions. 635 F. 2d 621 (CA7 1980). The present appeal to this Court followed, confronting us with the question whether §437h(a) should be construed to permit parties, such as the appellants, who do not belong to one of its three specifically enumerated classes, nonetheless to invoke its procedures.

HH HH

Our analysis of this issue of statutory construction must begin with the language of the statute itself,” Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 187 (1980), and “[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). Moreover, when the statute to be construed creates, as § 437h does, a class of cases that command the immediate attention of this Court and of the courts of appeals sitting en banc, displacing existing caseloads and calling court of appeals judges away from their normal duties for expedited en banc sittings, close construction of statutory language takes on added importance. As we have said: “Jurisdictional statutes are to be construed ‘with precision and with fidelity to the terms by which Congress has expressed its wishes’; and we are particularly prone to accord ‘strict construction of statutes authorizing appeals’ to this Court.” Palmore v. United States, 411 U. S. 389, 396 (1973) (citations omitted). In short, the plain language of § 437h(a) controls its construction, at least in the absence of “clear evidence,” United States v. Apfelbaum, 445 U. S. 115, 121 (1980), of a “clearly expressed legislative intention to the contrary,” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., supra, at 108.

The text of § 437h(a) states plainly enough which plaintiffs may invoke its special procedures: “The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President.” Thus, §437h(a) affords its unique system of expedited review to three carefully chosen classes of persons who might meet the minimum standing requirements of Art. III. The only artificial persons expressly entitled to invoke §437h(a) are the Federal Election Commission, which is charged with enforcing the Act, and the national committees of political parties, which play a central role in the political process.

In the face of the obvious meaning of the language of § 437h(a), the appellants urge what they concede to be an “expansive construction” of the section. Reply Brief for Appellants 3. Indeed, the construction they advocate could not be more expansive, for they apparently argue that Congress intended the class of permissible plaintiffs to be defined by the outermost limits of Art. III. The appellants, however, fall far short of providing “clear evidence” of a “clearly expressed legislative intention” that the unique expedited procedures of §437h be afforded to parties other than those belonging to the three listed categories.

In fact, the section’s legislative history is too brief and ambiguous to provide much solace to either side of the present controversy. When Senator Buckley introduced the section during the deliberations on the Federal Election Campaign Act Amendments of 1974, he limited his explanation to the following comments:

“[I]t is a modification that I am sure will prove acceptable to the managers of the bill. It merely provides for the expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time.” 120 Cong. Rec. 10562 (1974).

In the House, Representative Frenzel echoed this theme in responding to a question from another Member of the House about the constitutionality of the Amendments:

“Any time we pass legislation in this field we are causing constitutional doubts to be raised. I have many myself. I think the gentleman has pointed out a good one. We have done the best we could to bring out a bill which we hope may pass the constitutional test. But, we do not doubt that some questions will be raised quickly.
“I do call the attention of the gentleman to the fact that any individual under this bill has a direct method to raise these questions and to have those considered as quickly as possible by the Supreme Court.” Id., at 35140 (emphasis added).

These brief remarks by two Members of Congress nearly exhaust the legislative history of the section. The appellants nevertheless suggest that these comments suffice to prove that, in passing § 437h, Congress focused solely on expediting the resolution of all disputes over the constitutionality of FEC A, and was unconcerned with the identity of the challenging plaintiffs. In support of this view, the appellants point out that in the first sentence of § 437h(a) Congress authorized suits to challenge “any” provision of the Act, while the second sentence requires the district courts to certify “all” constitutional questions under the Act to the court of appeals sitting en banc. According to the appellants, the fact that Congress expressly extended §437h to “all” constitutional questions about “any” provision of the Act compels the inference that Congress also intended that § 437h be afforded to any and all plaintiffs, even those not expressly fisted in the Act.

The obvious fact that Congress wanted a broad class of questions to be speedily resolved, however, scarcely implies that Congress intended the courts to augment Congress’ enumeration of qualified plaintiffs. Indeed, if it suggests anything, the structure of the Act suggests that Congress knew how to specify that “all” constitutional questions about “any” provision of the Act may be raised, and therefore could as easily have directed that “any” person might invoke the unique procedures of §437h. But Congress did not do so. Instead, it went to the trouble of specifying that only two precisely defined types of artificial entities and one class of natural persons could bring these actions.

Reaching out for some support, the appellants hypothesize that Congress specified the three enumerated classes to remove any doubts about their standing, but not to exclude others by implication. According to the appellants, absent explicit congressional authorization, the members of the three . fisted classes might not meet the prudential standing requirements this Court imposes. See, e. g., Warth v. Seldin, 422 U. S. 490, 498-501 (1975). This argument, however, puts the appellants in the awkward position of simultaneously noting that express congressional authorization is required to overcome prudential standing limitations, while urging us to read an implicit grant of standing into congressional silence. Of course, had Congress intended the result the appellants desire, it could easily have achieved it by expressly granting standing to the limits of Art. Ill, and then listing as specific examples the three classes now enumerated in § 437h(a). Instead, Congress gave no affirmative indication that it meant to include in its grant any parties beyond the three listed classes.

For these reasons, we cannot impute to Congress the intention to confer standing on the broadest class imaginable. We do not assume the maximum jurisdiction permitted by the Constitution, absent a clearer mandate from Congress than here expressed. We therefore hold that only parties meeting the express requirements of § 437h(a) may invoke its procedures. Because the appellants do not meet these requirements, they may not invoke the expedited procedures of § 437h. .

The appellants complain that the practical result of this ruling may be that some provisions of FECA will escape expedited review, thereby defeating Congress’ intent that the courts pass as quickly as possible on the validity of FECA. Without a clearer indication of congressional intent than provided by the extremely sketchy legislative history of § 437h, however, we believe the best evidence of what Congress wanted is found in the statute itself, where Congress listed only three types of parties who may invoke the expedited procedures of §437h. Others, evidently, are remitted to the usual remedies.

We note, moreover, that our decision today raises no threat that an aggrieved party with standing will be unable to litigate questions arising under FECA, since our holding affects only the availability of the extraordinary procedures afforded by § 437h. Section 437g, for example, permits either the Commission or, under the proper circumstances, a private person to bring a civil action to enforce the Act, and such suits are themselves given expedited treatment under §437g(a)(10), being advanced on the calendar ahead of all other actions except those given even higher priority by either § 437g or § 437h. Thus, any challenge, constitutional or nonconstitutional, may be raised as a defense in an enforcement action, and will be afforded expedited review. Furthermore, plaintiffs meeting the usual standing requirements can challenge provisions of the Act under the federal-question jurisdiction granted the federal courts by 28 U. S. C. §1331 (1976 ed., Supp. IV).

In sum, the appellants have not met the burden of showing such “clear expression” or “clear evidence” of congressional intent to make the procedures of § 437h available to categories of plaintiffs other than those listed in that section. Accordingly, we reverse and remand for proceedings consistent with this opinion.

So ordered.

       Title 2 U. S. C. § 441b(b)(4)(D) permits an incorporated trade association to solicit contributions to its (PAC) only from
      “the stockholders and executive or administrative personnel of the member corporations of such trade association and the families of such stockholders or personnel to the extent that such solicitation of such stockholders and personnel, and their families, has been separately and specifically approved by the member corporation involved, and such member corporation does not approve any such solicitation by more than one such trade association in any calendar year.”
      Other provisions of FEC A permit a trade association to solicit contributions to its PAC from its members, § 441b(b)(4)(C), and from its own executive and administrative personnel and their families, § 441b(b)(4)(A).

       That section provides:
      “(a) Actions, including declaratory judgments, for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc
      “The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
      “(b) Appeal to Supreme Court; time for appeal
      “Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
      “(c) Advancement on appellate docket and expedited disposition of certified questions
      “It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section.” 2 U. S. C. §§437h(a)-(e) (1976 ed. and Supp. IV).
      The grant of standing to the three listed categories of plaintiffs is similar to the grant Congress had adopted earlier in 26 U. S. C. § 9011(b) authorizing the “Commission, the national committee of any political party, and individuals eligible to vote for President” to bring suits to implement or construe the Presidential Election Campaign Fund Act, 26 U. S. C. §§ 9001-9013.

       Perhaps because Senator Buckley’s intent as expressed in the legislative history remains uncertain, the appellants have submitted to this Court affidavits from Senator Buckley and David A. Keene, the Executive Assistant to the Senator who prepared the original draft of § 437h, expressing the belief that the amendment was not intended to exclude organizations from challenging the constitutionality of the Act. See Affidavit of James Buckley (Nov. 11, 1977), reprinted at App. 110, 112; Affidavit of David A. Keene (Oct. 21, 1977), reprinted at App. 106, 109.
      We cannot give probative weight to these affidavits, however, because “[s]ueh statements ‘represent only the personal views of th[is] legislato[r], since the statements were [made] after passage of the Act.’ ” Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974), quoting National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 639, n. 34 (1967). See also Quern v. Mandley, 436 U. S. 725, 736, n. 10 (1978), in which we noted that “post hoc observations by a single member of Congress carry little if any weight.”

       The appellants suggest that an anomaly is thereby created, unless parties not listed in § 437h(a) can invoke that section’s procedures, because nonconstitutional challenges raised as defenses will be granted expedited service under 2 U. S. C. §437g(a)(10) (1976 ed., Supp. IV), while constitutional challenges brought by plaintiffs not listed in §437h(a) will be treated like any other case on the docket. No evidence exists that Congress ever pondered this subtlety, or, if it did, what it thought about it. Suffice it to say that we do not consider the possibility that Congress may have seen fit to expedite claims raised by defendants, but not similar claims raised by some plaintiffs, to shed much light on Congress’ purpose in enumerating three specific classes of eligible plaintiffs in § 437h(a).

       We express no opinion, however, on the question whether the appellants meet the standing requirements under § 1331.


author: Per Curiam. Justice Marshall,

text:
    WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v. TORNA
    No. 81-362.
    Decided March 22, 1982
   Per Curiam.

Respondent is in custody pursuant to several felony convictions that were affirmed by the Third District Court of Appeal of Florida. Torna v. State, 358 So. 2d 1109 (1978). The Florida Supreme Court dismissed an application for a writ of certiorari, on the ground that the application was not filed timely. 362 So. 2d 1057 (1978). A petition for rehearing and clarification was later denied. App. to Pet. for Cert. A-15.

Respondent thereafter filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, contending that he had been denied his right to the effective assistance of counsel by the failure of his retained counsel to file the application for certiorari timely. The District Court denied the petition on the ground that the failure to file a timely application for certiorari did not render counsel’s actions “so grossly deficient as to render the proceedings fundamentally unfair.” Id., at A-22. In reaching this conclusion, the District Court noted that review by the Florida Supreme Court was discretionary; “[fjailure of counsel to .timely petition for certiorari to the Supreme Court, therefore, only prevented [respondent] from applying for further discretionary review.” Id., at A-28. The Court of Appeals reversed. 649 F. 2d 290 (CA5 1981).

In Ross v. Moffitt, 417 U. S. 600 (1974), this Court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court. Respondent does not contest the finding of the District Court that he had no absolute right to appeal his convictions to the Florida Supreme Court. Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application timely. The District Court was correct in dismissing the petition.

The motion of respondent for leave to proceed informa pauperis is granted. The petition for writ of certiorari is granted, and the judgment of the Court of Appeals is therefore reversed.

It is so ordered.

Justice Brennan would set the case for oral argument.

Justice Marshall,

dissenting.

The majority predicates its decision in this case on Ross v. Moffitt, 417 U. S. 600 (1974), which held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals. The majority reasons that because respondent had no constitutional right to counsel, his lawyer’s failure to file a timely appeal did not violate his right to effective assistance of counsel. In my view, however, Ross v. Moffitt was improperly decided. See id., at 619-621 (Douglas, J., dissenting, joined by Brennan and Marshall, JJ.). I believe that a defendant does have a constitutional right to counsel to pursue discretionary state appeals. Particularly where a criminal conviction is challenged on constitutional grounds, permissive review in the highest state court may be the most meaningful review a conviction will receive. Moreover, where a defendant seeks discretionary review, the assistance of an attorney is vital. Because I disagree with the Court’s position in Ross v. Moffitt, I disagree with its conclusion in this case also.

Even if I believed that Ross v. Moffttt were correctly decided, however, I would dissent from the majority’s conclusion that habeas corpus provides no recourse to a criminal defendant who has been denied his right to seek discretionary review because of his attorney’s error. Although respondent’s Sixth Amendment right to effective assistance of counsel may not have been infringed, he was denied his right to due process. Respondent’s counsel promised him that he would seek review in the Florida Supreme Court. Respondent reasonably relied on that promise. Counsel nonetheless failed to file a timely application. As a result, respondent was deprived of his right to seek discretionary review by the State’s highest court. As I suggested above, this loss is significant. I would hold that when a defendant can show that he reasonably relied on his attorney’s promise to seek discretionary review, due process requires the State to consider his application, even when the application is untimely. To deny the right to seek discretionary review simply because of counsel’s error is fundamentally unfair. Requiring the state courts to consider untimely applications when a defendant can show that he reasonably relied on his counsel will not impose a heavy burden. The State is not required to grant the application; it is simply barred from dismissing the application on the ground that it was not timely filed.

The majority argues that even if deprivation of the right to petition the Florida Supreme Court for review implicates a due process interest, there was no state action here. It reasons that the deprivation of this right was caused by respondent’s counsel — a private retained attorney — and not by the State. Ante, at 588, n. 4. In my view, however, there was sufficient state involvement to satisfy the requirements of the Fourteenth Amendment. The majority’s position is inconsistent with Cuyler v. Sullivan, 446 U. S. 335 (1980). In that case, the Court rejected the respondent’s assertion that the failings of retained counsel at a criminal trial could not provide a basis for federal habeas corpus relief, because his conduct does not involve state action. It held that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. “When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty.” Id., at 343. “[T]he State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction.” Id., at 344.

It is true that Cuyler v. Sullivan involved a challenge to the conduct of a private attorney during the trial, while this case involves a challenge to the post-trial conduct of a private attorney. However, post-trial proceedings are an integral part of the criminal process. In my view, the State is just as much implicated in those proceedings as in the trial itself. Here, for example, Florida was responsible for structuring the procedure by which criminal convictions are reviewed. In particular, it designed the rules governing the right to seek discretionary review, including the rule that applications are automatically rejected when filed out of time. Under the circumstances, I think it clear that the state-action requirement is satisfied.

       “It appearing to the Court that the notice was not timely filed, it is ordered that the cause is hereby dismissed sua sponte, subject to reinstatement if timeliness is established on proper motion filed within fifteen days from the date of this order. See Fla. R. App. P. 9.120.” App. to Pet. for Cert. A-13.

       Citing its decision in Pressley v. Wainwright, 540 F. 2d 818 (1976), cert. denied, 430 U. S. 987 (1977), the court first noted that “the failure of court-appointed counsel to file a timely notice of certiorari in the Florida Supreme Court has been held to constitute ineffective assistance.” 649 F. 2d, at 291. On the basis of the recent decision in Cuyler v. Sullivan, 446 U. S. 335 (1980), the court then stated that “there is no distinction between court-appointed and privately retained counsel in the evaluation of a claim of ineffective assistance.” 649 F. 2d, at 292. Finally, the court quoted its recent decision in Perez v. Wainwright, 640 F. 2d 596, 598 (1981), for the proposition that “‘when a lawyer . . . does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.’ ” 649 F. 2d, at 292. On the basis of these statements, the court reversed “the district court’s denial of the writ of habeas corpus,” ibid., and remanded the case to the District Court for further proceedings consistent with its opinion.

       Like this Court, the Florida Supreme Court has a limited mandatory appellate jurisdiction. See Fla. Const., Art. V, §3. Respondent has never contended, however, that he had a right of review under that jurisdiction. Thus, we need not determine the extent of the right to counsel in such a case.

       Respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the Florida Supreme Court for review. Such deprivation — even if implicating a due process interest — was caused by his counsel, and not by the State. Certainly, the actions of the Florida Supreme Court in dismissing an application for review that was not filed timely did not deprive respondent of due process of law.

       Notice of the intent to apply for discretionary review was due in the office of the Clerk for the District Court of Appeal, Third District of Florida, on July 17,1978. It was filed one day late, on July 18,1978. According to respondent, a secretary in his attorney’s office attempted to deliver the required papers on July 14, 1981. She became lost while traveling to the Clerk’s office, and did not arrive until after it had closed. Because she did not realize that she could have placed the papers in a night depository box, she took them home and placed them in the mail. Record 29-30. To deny respondent the right to seek discretionary review, where he reasonably relied on his counsel’s promise to apply for such review, and where counsel failed to comply with this promise only because of circumstances beyond his control, would be doubly unfair.


author: Per Curiam. Justice Brennan, Justice Stevens,

text:
    SUMNER, WARDEN v. MATA
    No. 81-844.
    Decided March 22, 1982
   Per Curiam.

This is the second time that this matter has come before us. In Sumner v. Mata, 449 U. S. 539 (1981), decided last Term, we held that 28 U. S. C. § 2254(d) requires federal courts in habeas proceedings to accord a presumption of correctness to state-court findings of fact. This requirement could not be plainer. The statute explicitly provides that “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction. . . , shall be presumed to be correct.” Only when one of seven specified factors is present or the federal court determines that the state-court finding of fact “is not fairly supported by the record” may the presumption properly be viewed as inapplicable or rebutted.

We held further that the presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact, and we held that if a federal court concludes that the presumption of correctness does not control, it must provide a written explanation of the reasoning that led it to conclude that one or more of the first seven factors listed in § 2254(d) were present, or the “reasoning which led it to conclude that the state finding was ‘not fairly supported by the record.’” 449 U. S., at 551.

Applying these general principles to the case at hand, we found in our decision last Term that the Court of Appeals for the Ninth Circuit had neither applied the presumption of correctness nor explained why it had not. See Mata v. Sumner, 611 F. 2d 754 (CA9 1979). Instead, the court had made findings of fact that were “considerably at odds” with the findings made by the California Court of Appeal without any mention whatsoever of § 2254(d). 449 U. S., at 543.

In reaching the conclusion that the Court of Appeals had not followed § 2254(d), we rejected the argument, advanced by respondent Mata, that the findings of fact made by the Court of Appeals and the California court were not in conflict. Mata was convicted in 1973 in state trial court of the first-degree murder of a fellow inmate. There were three witnesses to the murder, each of whom identified Mata as a participant in the killing. On appeal to the California Court of Appeal, Mata argued for the first time that the photographic lineup procedure used by the state police was so im-permissibly suggestive as to deprive him of due process. After examining the evidence, the California Court of Appeal rejected this assertion. It concluded that the pretrial procedures had not been unfair under the test stated by this Court in Simmons v. United States, 390 U. S. 377 (1968):

“Reviewing the facts of the present case to determine if the particular photographic identification procedure used contained the proscribed suggestive characteristics, we first find that the photographs were available for cross-examination purposes at the trial. We further find that there is no showing of influence by the investigating officers: that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate. The circumstances thus indicate the inherent fairness of the procedure, and we find no error in the admission of the identification evidence.” App. to Pet. for Cert. C-8.

The Court of Appeals for the Ninth Circuit reached a different conclusion, and did so on the basis of factfindings that were clearly in conflict with those made by the state court. We noted that the Court of Appeals had relied, inter alia, on its own conflicting findings that “(1) the circumstances surrounding the witnesses’ observation of the crime were such that there was a grave likelihood of misidentification; (2) the witnesses had failed to give sufficiently detailed descriptions of the assailant; and (3) considerable pressure from both prison officials and prison factions had been brought to bear on the witnesses.” Sumner v. Mata, 449 U. S., at 543. We concluded that the “findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal.” Ibid. We remanded so that the Court of Appeals could review its determination of the issue and either apply the statutory presumption or explain why the presumption did not apply in light of the factors listed in § 2254(d). We expressed no view as to whether the procedures had been impermissibly suggestive. That was a question for the Court of Appeals to decide in the first instance after complying with § 2254(d).

On remand, the Court of Appeals found that it was not necessary for it to apply the presumption of correctness or explain why the presumption should not be applied. 649 F. 2d 713 (CA9 1981). Rather, agreeing with the argument advanced by Mata and the dissenting opinion in Sumner v. Mata, supra, the court concluded that § 2254(d) was simply irrelevant in this case because its factfindings in no way differed from those of the state court. It argued that its disagreement with the state court was “over the legal and constitutional significance of certain facts” and not over the facts themselves. 649 F. 2d, at 716. It found that whether or not the pretrial photographic identification procedure used in this case was impermissibly suggestive was a mixed question of law and fact as to which the presumption of correctness did not apply. And it reinstated its conclusion that the pretrial procedures had been impermissibly suggestive and that Mata therefore was entitled to release or a new trial.

We have again reviewed this case and conclude that the Court of Appeals apparently misunderstood the terms of our remand. Nor did it comply with the requirements of § 2254(d). We agree with the Court of Appeals that the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254(d). In deciding this question, the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard. But the questions of fact that underlie this ultimate conclusion are governed by the statutory presumption as our earlier opinion made clear. Thus, whether the witnesses in this case had an opportunity to observe the crime or were too distracted; whether the witnesses gave a detailed, accurate description; and whether the witnesses were under pressure from prison officials or others are all questions of fact as to which the statutory presumption applies.

Of course, the federal courts are not necessarily bound by the state court’s findings. Section 2254(d) permits a federal court to conclude, for example, that a state finding was “not fairly supported by the record.” But the statute does require the federal courts to face up to any disagreement as to the facts and to defer to the state court unless one of the factors listed in § 2254(d) is found. Although the distinction between law and fact is not always easily drawn, we deal here with a statute that requires the federal courts to show a high measure of deference to the factfindings made by the state courts. To adopt the Court of Appeals’ view would be to deprive this statutory command of its important significance.

Our remand directed the Court of Appeals to re-examine its findings in light of the statutory presumption. We pointed the way by identifying certain of its findings that we considered to be at odds with the findings of the California Court of Appeal. We asked the Court of Appeals to apply the statutory presumption or explain why the presumption was not applicable in view of the factors listed in the statute. The Court of Appeals did neither. Accordingly, we again must remand. Again we note that “we are not to be understood as agreeing or disagreeing with the majority of the Court of Appeals on the merits of the issue of impermissibly suggestive identification procedures.” 449 U. S., at 552.

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, the judgment of the Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

In my view, the opinion of the Court of Appeals for the Ninth Circuit not only accords with the views I expressed last Term, which, as the Court points out, ante, at 595, n. 6, did not prevail, but also with the principles expressed in the Court’s opinion last Term and restated by the Court today. It is on this basis that I dissent from the Court’s second, and in this instance summary, vacation.

When this case was before us last Term, I expressed the view that it was unnecessary for the Court of Appeals to explain its failure to consider the restrictions of § 2254(d), because “the difference between the Court of Appeals for the Ninth Circuit and the California Court of Appeal was over the applicable legal standard, and not over the particular facts of the case,” rendering § 2254(d) obviously inapplicable. Sumner v. Mata, 449 U. S. 539, 558-559 (1981). The Court disagreed, holding that in all cases federal courts must apply § 2254(d) or explain why it was inapplicable: “No court reviewing the grant of an application for habeas corpus should be left to guess as to the habeas court’s reasons for granting relief notwithstanding the provisions of § 2254(d).” 449 U. S., at 552. But I thought then, and the Court today agrees, that § 2254(d) is inapplicable to the ultimate question whether pretrial identification procedures are “impermissibly suggestive,” Simmons v. United States, 390 U. S. 377, 384 (1968). Ante, at 597.

The Court’s explicit recognition that § 2254(d) does not govern the ultimate question as to the constitutionality of the pretrial identification procedures used in this case renders all the more confounding the Court’s present disposition. Following this Court’s directive on remand, the Court of Appeals clarified the basis for its original opinion: Section 2254 (d) was inapplicable because the federal court “substantially agree[d] with the ‘historical’ or ‘basic’ facts adduced by the California Court of Appeal,” but disagreed with “the legal and constitutional significance of certain facts,” and thus the “legal conclusion” of the state court. 649 F. 2d 713, 716-717 (1981).

I can only interpret this second vacation as evincing either the suspicion that the Court of Appeals, despite its protestations to the contrary, actually relied on factual findings inconsistent with those of the state court or that the Court of Appeals failed to distinguish its ultimate conclusion from subsidiary questions of fact. The unfairness of such suspicion is manifest. There is no reason to think, borrowing from this Court’s declaration to the Court of Appeals last Term, that, despite this Court’s difference of opinion, the judges of the Ninth Circuit are "not doing their mortal best to discharge their oath of office.” 449 U. S., at 549.

There is no basis for disbelieving the Court of Appeals’ assurance that it has accepted the factual findings of the California Court of Appeal and that it granted relief only because it concluded that the pretrial identification procedures employed in this case were, as a matter of law, unconstitutional. Accordingly, I dissent and would affirm the judgment of the Court of Appeals.

Justice Stevens,

dissenting.

Once again the Court’s preoccupation with procedural niceties has needlessly complicated the disposition of a federal habeas corpus petition. Cf. Rose v. Lundy, ante, p. 509. Lurking in the background of this case is the question whether the failure to conduct a lineup has any bearing on the validity of a photographic identification. The Court may one day confront that question. For the present, however, it is more concerned with the Court of Appeals’ misunderstanding of the ill-defined mandate of Sumner v. Mata, 449 U. S. 539, and 28 U. S. C. § 2254(d).

We now seem to agree that § 2254(d) applies to a “basic, primary, or historical fact” and that it does not apply to a “mixed question of law and fact.” The articulation of this proposition certainly is an improvement on the Court’s opinion of last Term, which understandably confounded the Court of Appeals on remand. Judge Sneed in dissent read — incorrectly, it turns out — the Court’s opinion to apply § 2254(d) to mixed questions of law and fact. The panel majority read— correctly, it turns out — the Court’s opinion to apply § 2254(d) only to historical facts. The panel majority held that § 2254(d) simply was not implicated in this case because there was no conflict between its findings of historical facts and those of the California Court of Appeal. The disagreement today is whether that holding is correct. In my opinion, this question is more difficult than either the per curiam or Justice Brennan’s dissent indicates. Indeed, the difficulty of the analysis behooves this Court either to “poin[t] the way” in a more extensive and reasoned fashion or to rely upon the good faith and good sense of the federal courts in applying the rather straightforward principle of § 2254(d) even though in particular cases its application might be unclear. The Court does neither today. Instead, it merely delays, for the sake of a procedural nicety, either the habeas corpus relief to which the Court of Appeals has held the respondent is entitled or a consideration of the merits of the only significant question that the petitioner has raised. I respectfully dissent from the Court’s summary disposition.

       Section 2254(d) provides:
      “(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
      “(1) that the merits of the factual dispute were not resolved in the State court hearing;
      “(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
      “(3) that the material facts were not adequately developed at the State court hearing;
      “(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
      “(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
      “(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
      “(7) that the applicant was otherwise denied due process of law in the State court proceeding;
      “(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
      And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances repectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.”

       Respondent argued: “All of the facts set forth in the opinion [of the Court of Appeals] are drawn from the record and do not contradict any finding of primary fact made by the California Court of Appeal.” Brief for Respondent, O. T. 1980, No. 79-1601, pp. 19-20.

       Two other inmates — Salvadore Vargas and David Gallegos — were also convicted of taking part in the murder.

       The California Court of Appeal summarized the pretrial procedures as follows:
      “Three inmate witnesses testified that they saw the stabbing take place. All three — Childress, Almengor, and Allen — identified all three defendants .... The witnesses were shown a number of photographs of Te-hachapi inmates in an attempt to identify the slayers. Almengor was interviewed and shown photos on October 19, 1972, the day of the incident. He made a possible identification of appellant Vargas, but made possible misidentifications of the other two participants. On October 30, 1972, more recent photos were presented to Almengor and he identified all the appellants. On October 27,1972, Allen was shown photographs but stated he could not make an identification because the photographs were old. On October 30,1972, more photos were presented to Allen and he identified all three appellants. On that date Childress also selected all three appellants from photographs shown to him.
      “Appellants argue that the witnesses Almengor and Allen were housed in the same segregation unit with appellants, that they were aware that appellants were removed from the segregation unit to have their pictures taken and that this makes their identification inadmissible. But they make no showing, and the record supports none, that the witnesses were in fact influenced in their identification by this action of the investigating officers.” App. to Pet. for Cert. C-4 to C-6.

       The decision of the Court of Appeals for the Ninth Circuit differed not only with that of the California Court of Appeal on direct appeal but also with the decision of three levels of state courts in state habeas proceedings and with the decision of the Federal District Court in federal habeas proceedings.

       In dissent Justice Brennan argued that there was no conflict between the facts as found by the state court and as found by the Court of Appeals. He argued that the California court’s finding that the witnesses had an opportunity to view the killing was not in conflict with a finding by the Court of Appeals that the witnesses were “quite likely” distracted at the time of the killing. He argued further that the California court’s finding that the descriptions given by the witnesses were “accurate” was not in conflict with a finding that these descriptions were not detailed. Finally, the dissent appears to have considered that the existence of influence by prison officials was a not a question of fact but of law. 449 U. S., at 556. It is obvious that a majority of the Court did not find this reasoning persuasive. On our remand, the Court of Appeals apparently adopted Justice Brennan’s dissenting views. See 649 F. 2d 713, 716 (CA9 1981).

       “Lest the reviewing court ‘be left to guess’ as to our reasons for granting habeas relief notwithstanding the provisions of § 2254(d), we reiterate: As our original analysis indicates ... we substantially agree with the ‘historical’ or ‘basic’ facts adduced by the California Court of Appeal Fifth Appellate District.... We disagree, however, with the application of the Simmons standard ... to the totality of the circumstances of this case.” Id., at 717.

       Judge Sneed dissented from the Court of Appeals’ original decision, and he dissented again “respectfully, and to some degree sorrowfully.” Ibid.

       Cf. Cuyler v. Sullivan, 446 U. S. 335 (1980); Brewer v. Williams, 430 U. S. 387 (1977); Neil v. Biggers, 409 U. S. 188, 193, n. 3 (1972).

       In Neil v. Biggers, supra, at 199-200, we noted that “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Each of these “factors” requires a finding of historical fact as to which § 2254(d) applies. The ultimate conclusion as to whether the facts as found state a constitutional violation is a mixed question of law and fact as to which the statutory presumption does not apply.

       Because we remand for failure to comply with §2254(d), we do not reach the second question presented in the petition for certiorari as to whether the Court of Appeals applied the proper legal standard in determining that the pretrial identification procedures used in this case were constitutionally defective.

       Although a case in which a lower court misunderstands the terms of our remand might in some instances be an appropriate candidate for summary reversal, in this case, where there is no unanimous agreement that the remand was not complied with, I would not reverse without plenary consideration.

       The California Court of Appeal and the Court of Appeals for the Ninth Circuit worked from the same state trial court record. The state court made the rather brief findings “that there is no showing of influence by the investigating officers: that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate.” App. to Pet. for Cert. C-8. The federal court analyzed the evidence in greater detail. It found that although the fight among witnesses and the perpetrators of the crime “would have at least provided an opportunity for the witnesses to observe the perpetrators of the crime[,]... the violence accompanying the incident and the threat presented by the knife would have, quite likely, diverted the witnesses’ attention”; that “the descriptions of the assailants were clearly not detailed descriptions”; and that “considerable pressure from both the prison officers and opposing prison factions had admittedly been brought to bear on both witnesses.” Mata v. Sumner, 611 F. 2d 754, 758-759 (1979).
      Putting aside the problem of separating findings of historical fact from answers to mixed questions of law and fact, it is mostly an ineffectual exercise to attempt to decide whether the two sets of findings are conflicting. The first and second of the three findings of the federal court seem to supplement, but not contradict, the roughly corresponding findings of the state court. The third does conflict with the state court’s determination that there was “no showing of influence,” but the reason for the conflict is fully explained by the federal court’s reference to evidence in the record that the state court apparently overlooked or ignored. The Court of Appeals might have better complied with § 2254(d) by referring to this explanation. See § 2254(d)(8). In any event, since neither appellate court had the benefit of findings of fact by the judge who heard the evidence, it is a strange use of our scarce resources to review such trivial differences between two appellate courts’ analyses of this trial record.