author: Per Curiam. Justice Rehnquist,

text:
    SMITH v. ILLINOIS
    No. 84-5332.
    Decided December 10, 1984
   Per Curiam.

The petitioner Steven Smith was convicted of armed robbery and sentenced to a 9-year prison term. He contends that the police improperly elicited a confession from him after he clearly had requested the assistance of counsel, and that the trial court’s refusal to suppress the confession therefore violated Miranda v. Arizona, 384 U. S. 436 (1966), and Edwards v. Arizona, 451 U. S. 477 (1981). The Illinois Supreme Court held that Smith’s responses to continued police questioning rendered his initial request for counsel “ambiguous,” and that the officers therefore were not required to terminate their questioning. 102 Ill. 2d 365, 373-374, 466 N. E. 2d 236, 240 (1984). Under Miranda and Edwards, however, an accused’s postrequest responses to further interrogation may not be used to cast doubt on the clarity of his initial request for counsel. Finding no ambiguity in Smith’s initial request, we accordingly grant the petition and reverse.

I

Shortly after his arrest, 18-year-old Steven Smith was taken to an interrogation room at the Logan County Safety Complex for questioning by two police detectives. The session began as follows:

“Q. Steve, I want to talk with you in reference to the armed robbery that took place at McDonald’s restaurant on the morning of the 19th. Are you familiar with this?
“A. Yeah. My cousin Greg was.
“Q. Okay. But before I do that I must advise you of your rights. Okay? You have a right to remain silent. You do not have to talk to me unless you want to do so. Do you understand that?
“A. Uh. She told me to get my lawyer. She said you guys would railroad me.[]
“Q. Do you understand that as I gave it to you, Steve?
“A. Yeah.
“Q. If you do want to talk to me I must advise you that whatever you say can and will be used against you in court. Do you understand that?
“A. Yeah.
“Q. You have a right to consult with a lawyer and to have a lawyer present with you when you’re being questioned. Do you understand that?
“A. Uh, yeah. I’d like to do that.
“Q. Okay.” 102 111. 2d, at 368-369, 466 N. E. 2d, at 238 (emphasis in opinion).

Instead of terminating the questioning at this point, the interrogating officers proceeded to finish reading Smith his Miranda rights and then pressed him again to answer their questions:

“Q. ... If you want a lawyer and you’re unable to pay for one a lawyer will be appointed to represent you free of cost, do you understand that?
“A. Okay.
“Q. Do you wish to talk to me at this time without a lawyer being present?
“A. Yeah and no, uh, I don’t know what’s what, really.
“Q. Well. You either have [to agree] to talk to me this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop at any time you want to.
“Q. All right. I’ll talk to you then.” Id., at 369, 466 N. E. 2d, at 238 (emphasis in opinion) (bracketed words appear in Tr. 230).

Smith then told the detectives that he knewin advance about the planned robbery, but contended that he had not been a participant. After considerable probing by the detectives, Smith confessed that “I committed it,” but he then returned to his earlier story that he had only known about the planned crime. 102 Ill. 2d, at 369-370, 466 N. E. 2d, at 238. Upon further questioning, Smith again insisted that “I wanta get a lawyer.” Id., at 370, 466 N. E. 2d, at 238. This time the detectives honored the request and terminated the interrogation.

Smith moved at trial to suppress his incriminating statements, 1 Record 45, but the trial judge denied the motion, 4 Record 231. A transcript of the interrogation was introduced as part of the State’s case in chief, and Smith was convicted.

In affirming Smith’s conviction, the Appellate Court of Illinois for the Fourth District acknowledged that Smith’s first request for counsel “appears clear and unequivocal.” 113 Ill. App. 3d 305, 310, 447 N. E. 2d 556, 559 (1983). The court concluded, however, that “when [the request] is considered with other statements — as it should be — it is clear that Smith was undecided about exercising his right to counsel” and “never made an effective request for counsel.” Id., at 309-310, 447 N. E. 2d, at 558-559. Rather, Smith had made “merely an indecisive inquiry into the right to counsel.” Id., at 310, 447 N. E. 2d, at 559.

The Illinois Supreme Court affirmed in a 4-3 vote. The majority agreed with the lower court that “Smith’s statements, considered in total, were ambiguous, and did not effectively invoke his right to counsel.” 102 Ill. 2d, at 373, 466 N. E. 2d, at 240. Specifically, the majority noted that although Smith stated “I’d like to do that” upon learning he had a right to his counsel’s presence at the interrogation, Smith subsequently replied “Yeah and no, uh, I don’t know what’s what really,” and “All right. I’ll talk to you then.” Id., at 372, 466 N. E. 2d, at 240. In light of these subsequent remarks, the majority reasoned, “Steven Smith did not dearly assert his right to counsel.” Id., at 373, 466 N. E. 2d, at 240 (emphasis in original).

II

An accused in custody, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,” unless he validly waives his earlier request for the assistance of counsel. Edwards v. Arizona, 451 U. S., at 484-485. This “rigid” prophylactic rule, Fare v. Michael C., 442 U. S. 707, 719 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e. g., Edwards v. Arizona, supra, at 484-485 (whether accused “expressed his desire” for, or “clearly asserted” his right to, the assistance of counsel); Miranda v. Arizona, 384 U. S., at 444-445 (whether accused “indicate[d] in any manner and at any stage of the process that he wish[ed] to consult with an attorney before speaking”). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, at 485, 486, n. 9.

This case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance. On occasion, an accused’s asserted request for counsel may be ambiguous or equivocal. As the majority and dissenting opinions below noted, courts have developed conflicting standards for determining the consequences of such ambiguities. See 102 Ill. 2d, at 372-373, 466 N. E. 2d, at 240; id., at 375-377, 466 N. E. 2d, at 241-242 (Simon, J., dissenting). We need not resolve this conflict in the instant case, however, because the judgment of the Illinois Supreme Court must be reversed irrespective of which standard is applied.

The conflict among courts is addressed to the relevance of alleged ambiguities or equivocations that either (1) precede an accused’s purported request for counsel, or (2) are part of the request itself. Neither circumstance pertains here, however. Neither the State nor the courts below, for example, have pointed to anything Smith previously had said that might have cast doubt on the meaning of his statement “I’d like to do that” upon learning that he had the right to his counsel’s presence. Nor have they pointed to anything inherent in the nature of Smith’s actual request for counsel that reasonably would have suggested equivocation. As Justice Simon noted in his dissent below, “with the possible exception of the word ‘uh’ the defendant’s statement in this case was neither indecisive nor ambiguous: ‘Uh, yeah, I’d like to do that.’” Id., at 377, 466 N. E. 2d, at 242. And the Illinois Appellate Court for the Fourth District itself acknowledged that the statement “appears clear and unequivocal.” 113 Ill. App. 3d, at 310, 447 N. E. 2d, at 559.

The courts below were able to construe Smith’s request for counsel as “ambiguous” only by looking to Smith’s subsequent responses to continued police questioning and by concluding that, “considered in total,” Smith’s “statements” were equivocal. 102 Ill. 2d, at 373, 466 N. E. 2d, at 240 (emphasis added); see also 113 Ill. App. 3d, at 310, 447 N. E. 2d, at 559. This line of analysis is unprecedented and untenable. As Justice Simon emphasized below, “[a] statement either is such an assertion [of the right to counsel] or it is not.” 102 Ill. 2d, at 375, 466 N. E. 2d, at 241. Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.

The importance of keeping the two inquiries distinct is manifest. Edwards set forth a “bright-line rule” that all questioning must cease after an accused requests counsel. Solem v. Stumes, 465 U. S. 638, 646 (1984). In the absence of such a bright-line prohibition, the authorities through “badger[ing]” or “overreaching” — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Oregon v. Bradshaw, 462 U. S. 1039, 1044 (1983); Fare v. Michael C., 442 U. S., at 719. With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver “cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.” Edwards v. Arizona, 451 U. S., at 484. Using an accused’s subsequent responses to cast doubt on the adequacy of the initial request itself is even more intolerable. “No authority, and no logic, permits the interrogator to proceed ... on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.” 102 Ill. 2d, at 376, 466 N. E. 2d, at 241 (Simon, J., dissenting).

Ill

Our decision is a narrow one. We do not decide the circumstances in which an accused’s request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself, nor do we decide the consequences of such ambiguity or equivocation. We hold only that, under the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.

Accordingly, Smith’s motion for leave to proceed informa pauperis is granted, the petition for a writ of certiorari is granted, the judgment of the Illinois Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Rehnquist,

with whom The Chief Justice and Justice Powell join,

dissenting.

The Court seizes upon petitioner’s seven-word response “Uh, yeah, I’d like to do that,” rendered during a colloquy which in its entirety could not have taken five minutes, and proclaims that petitioner thereby clearly asserted his desire to consult with an attorney before speaking to the police. In so doing, it decides this essentially factual inquiry contrary to the three other courts that have considered the question: the Illinois trial court, the Illinois Appellate Court, and the Supreme Court of Illinois. Under the guise of applying a rule of law which, however correct in the abstract, has little application to these facts, the Court permits its certiorari jurisdiction to be used to relitigate the facts, and reaches a conclusion that is no more demonstrably correct than that reached by the Illinois courts.

There is no dispute that Edwards v. Arizona, 451 U. S. 477 (1981), requires interrogation to cease, if and when petitioner clearly asserts his right to the assistance of counsel. But here no “interrogation” was being conducted by the police; they were simply in the process of giving petitioner his full Miranda warnings. The very next statement by the police officer after petitioner’s “clear assertion” of his right to counsel was to tell petitioner that “[i]f you want a lawyer and you’re unable to pay for one a lawyer will be appointed to represent you free of cost, do you understand that?” Surely the police should have continued to give petitioner his full warnings, even had his earlier response had the talismanic quality that the Court attributes to it.

The Court also assumes that the statement, “Uh, yeah. I’d like to do that,” was announced affirmatively and without any tone of equivocation or inquiry. As the Illinois Appellate Court observed, the officer reading petitioner his rights did not understand the statement as a clear request. After first reading petitioner the fourth Miranda right, he immediately sought clarification by asking petitioner pointedly, “Do you wish to talk with me at this time without a lawyer being present?” To this query, petitioner responded, “Yeah and no, uh, I don’t know what’s what really.” The trial judge, who was able to observe the demeanor of the officers testifying as to what took place and to listen to the tape of the interrogation, implicitly concluded that petitioner’s initial statement was not a clear request.

The Court asserts that subsequent statements cannot be used to call into question the clarity of an earlier “request” for counsel. It may be that a crystal-clear statement could not be rendered ambiguous by subsequent responses to questions seeking clarification. But statements are rarely that clear; differences between certainty and hesitancy may well turn on the inflection with which words are spoken, especially where, as here, a seven-word statement is isolated from the statements surrounding it. But in the ordinary give-and-take of statement and response in a colloquy such as this, I see no reason why the entire flavor of the colloquy— lasting less than five minutes — cannot be considered by the trier of fact.

Edwards v. Arizona, supra, is entirely consistent with this approach. In that case Edwards, after being informed of his Miranda rights, agreed to talk to police, but during his interrogation while discussing a possible “deal” said, “I want an attorney before making a deal.” 451 U. S., at 478-479. The police then ceased questioning him, and he was returned to jail. The next morning two detectives went to the j ail and asked to see Edwards; Edwards replied that he did not want to talk to anyone, but the guard told him that “he had” to talk and then took him to meet with the detectives. The Court said:

“Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his right to counsel and his right to remain silent on [the preceding day], but that the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions. Contrary to the holdings of the state courts, Edwards insists that having exercised his right on the [preceding day] to have counsel present during interrogation, he did not validly waive that right on the [next day]. For the following reasons, we agree.” Id., at 482.

Our other cases applying Edwards, Oregon v. Bradshaw, 462 U. S. 1039 (1983), and Solem v. Stumes, 465 U. S. 646 (1984), are cast in a similar mold; the suspect clearly asserts a right to counsel, questioning ceases, and then the police seek to resume interrogation at a later time. The facts of the present case simply do not fit that mold. The entire process by which petitioner was advised of his Miranda rights was transcribed in the few lines contained in the Court’s opinion, ante, at 92-93; it simply slices a legal abstraction thinner than common sense will permit to conclude on the basis of this colloquy that it may not be used in its entirety to determine whether petitioner “clearly asserted” his right to counsel.

The Court apparently assumes that the officers were trying to trick or coerce petitioner into waiving his right to counsel. This is belied by the fact that, immediately after petitioner agreed to talk, the interrogating officer stated plainly, “All you have to do is just tell me I don’t want to talk to you any more and that ends it.” Subsequently, during the interrogation, when petitioner stated, “I don’t want to talk to you no more. I wanta get a lawyer,” the police immediately ceased questioning and complied with this request.

The Court also implies that the officers badgered and coerced petitioner into changing his mind about obtaining a lawyer. In fact, between petitioner’s initial statement and his indisputable expression of uncertainty, all that the officers did was advise him of the right to appointed counsel and asked him what he wanted to do:

“A. Uh, yeah. I’d like to do that.
“Q. Okay. If you want a lawyer and if you’re unable to pay for one, a lawyer will be appointed to represent you free of cost, do you understand that?
“A. Okay.
“Q. Do you wish to talk with me at this time without a lawyer being present?
“A. Yeah and no, uh, I don’t know what’s what really.”

This can hardly be characterized as badgering.

The Court makes much of the officer’s subsequent clarifying explanation that “You either have to agree to talk to me at this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop any time you want to.” Tr. 230. The Court ignores the word “either.” The sentence appears to be incomplete. It may well be that petitioner’s response, “All right. I’ll talk to you then,” interrupted the completion of the sentence. The Court makes the unwarranted assumption that the officer was attempting to badger and overreach petitioner. Again, only the trier of fact can intelligently determine the import of the officer’s statement.

Common sense suggests that the police should both complete reading petitioner his rights and then ask him to state clearly what he elects to do, even if he indicated a tentative desire while he was being informed of his rights. This is entirely consistent with applicable language in Miranda itself:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U. S. 436, 473-474 (1966).

The reading of this short colloquy between petitioner and the police officer satisfies me that the police were faithfully attempting to follow our Miranda decision. The Court's opinion gives the impression that it is concerned about overreaching, badgering, and wearing down a suspect; but no fair reading of this 5-minute transcript can lead to the conclusion that those factors were present here.

       According to the Illinois Supreme Court, the “she” that Smith referred to was an unidentified woman named Chico. 102 Ill. 2d, at 368-369, 466 N. E. 2d. at 238.

       We have repeatedly emphasized this restraint on police interrogation. In addition to Edwards, see also Solem v. Stumes, 465 U. S. 638, 646-647 (1984); Oregon v. Bradshaw, 462 U. S. 1039, 1044 (1983) (Edwards set forth a “prophylactic rule, designed to protect an accused in police custody from being badgered by police officers . . .”); Wyrick v. Fields, 459 U. S. 42, 45-46 (1982) (per curiam); Rhode Island v. Innis, 446 U. S. 291, 298 (1980); Fare v. Michael C., 442 U. S. 707, 719 (1979) (discussing the “rigid rule” that “an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease”); Miranda v. Arizona, 384 U. S. 436, 474 (1966) (“If the individual states that he wants an attorney, the interrogation must cease until-an attorney is present”). Cf. Michigan v. Mosley, 423 U. S. 96, 105-106 (1975) (rule requiring termination of questioning upon accused’s invocation of his right to silence prevents police from “persisting in repeated efforts to wear down [the accused’s] resistance and make him change his mind”).

       Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. See, e. g., People v. Superior Court, 15 Cal. 3d 729, 735-736, 542 P. 2d 1390, 1394-1395 (1975), cert. denied, 429 U. S. 816 (1976); Ochoa v. State, 573 S. W. 2d 796, 800-801 (Tex. Crim. App. 1978). Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e. g., People v. Krueger, 82 Ill. 2d 305, 311, 412 N. E. 2d 537, 540 (1980) (“[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,” but not “every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel”), cert. denied, 451 U. S. 1019 (1981). Still others have adopted a third approach, holding that when an accused makes an equivocal statement that “arguably” can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to “clarify” the earlier statement and the accused’s desires respecting counsel. See, e. g., Thompson v. Wainwright, 601 F. 2d 768, 771-772 (CA5 1979); State v. Moulds, 105 Idaho 880, 888, 673 P. 2d 1074, 1082 (App. 1983).

       Indeed, as Justice Simon noted in his dissent below, Smith’s “only previous statement to the officer which is of any significance in this regard is an assertion that ‘she’ warned him that the police would ‘railroad’ him and advised him to get a lawyer before submitting to interrogation.” 102 Ill. 2d, at 377, 466 N. E. 2d, at 242; see supra, at 92. Far from creating “ambiguity” concerning Smith’s subsequent request, this statement could only have reinforced the clarity of Smith’s invocation of his right to counsel.

       Justice Rehnquist in his dissent asserts that the trial judge “implicitly concluded that petitioner’s initial statement was not a clear request,” post, at 101, and criticizes the Court for “relitigat[ingj” this “essentially factual inquiry,” post, at 100. As this argument suggests, the trial judge did not discuss the clarity of Smith’s request, but instead simply denied without comment Smith’s motion to suppress. 4 Record 231. In fact, the only “finding” made by the state courts with respect to Smith’s initial request was that it did indeed appear to be “clear and unequivocal.” See supra this pagé.

       The Illinois Appellate Court for the Fourth District also suggested that it was significant that Smith’s request came during the administration of Miranda warnings: “[H]e merely expressed an interest in obtaining counsel during the administration of the Miranda warnings and prior to the beginning of any interrogation. . . . Smith’s statements were not a request for counsel during interrogation. Indeed, interrogation had not begun.” 113 Ill. App. 3d, at 309-310, 447 N. E. 2d, at 558-559 (emphasis in original). Justice Rehnquist in his dissent similarly contends that the authorities need not stop their questioning if an accused requests counsel prior to or during the Miranda warnings. See post, at 100-101, 104. Such reasoning is plainly wrong. A request for counsel coming “at any stage of the process” requires that questioning cease until counsel has been provided. Miranda v. Arizona, 384 U. S., at 444-445 (emphasis added).

       The dissent contends that the questioning here was “entirely consistent” with the proscriptions of Edwards and Oregon v. Bradshaw, 462 U. S. 1039 (1983). Post, at 102. In those cases, the dissent argues, the authorities immediately terminated their questioning once the suspects had invoked their right to counsel, but then sought “to resume interrogation at a later time.” Ibid. In this case, on the other hand, the detectives did not even initially terminate their questioning. In such circumstances, the dissent proclaims, it is proper to consider “the entire flavor of the colloquy.” Post, at 101. To the extent the dissent suggests that an accused’s Fifth Amendment right to counsel should turn on whether the authorities initially honor his request, we reject this approach as palpably untenable under Edwards. Whether in the same interrogating session or in subsequent sessions, the so-called “flavor” of an accused’s request for counsel cannot be dissipated by continued police questioning.

       Most of the dissent is devoted to an effort at demonstrating that the detectives did not actually extract Smith’s confession through trickery or coercion. See post, at 103. This effort is of course beside the point, because the rule we announced in Edwards and which we follow today is a prophylactic safeguard whose application does not turn on whether coercion in fact was employed. Nevertheless, the actual course of the subsequent interrogation in this case reinforces our concern that, absent a bright-line rule requiring an immediate cessation of questioning, an accused may be “badgered” to speak as a result of police “overreaching.” See supra, at 98. As Justice Simon noted in his dissent below:
      “I fail to understand how the officer could have mistaken the defendant’s meaning, and no justification is given or is apparent for his proceeding through to the end of the Miranda warnings and in the course of doing so misrepresenting to Smith the meaning of those warnings by the following admonition: ‘You either have to talk to me this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop at any time you want to.’ This communication, even if inadvertent, clearly imparted to the defendant the warning that he had to talk to the interrogator and was seriously misleading.
      “. . . In this regard, I find it particularly significant that Smith, who was apparently in police custody for the first time in his life and admitted that he did not ‘know what’s what,’ agreed to talk to the police only after he was told, ostensibly by way of explaining the Miranda warnings, that he had no other choice.” 102 Ill. 2d, at 377-378, 466 N. E. 2d, at 242.
      The interrogation here bore a substantial similarity to the one condemned in Edwards v. Arizona, where the accused after requesting counsel was told that “he had” to talk to his interrogators. 451 U. S., at 479. It was precisely such “badger[ing]” that the Edwards safeguard was designed to prevent. See Oregon v. Bradshaw, supra, at 1044.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    UNITED STATES v. WOODWARD
    No. 83-1947.
    Decided January 7, 1985
   Per Curiam.

On March 1, 1980, respondent Charles Woodward and his wife arrived at Los Angeles International Airport on a flight from Brazil. In passing through Customs, respondent was handed the usual form that included the following question:

“Are you or any family member carrying over $5,000 (or the equivalent value in any currency) in monetary instruments such as coin, currency, traveler’s checks, money orders, or negotiable instruments in bearer form?”

Respondent checked the “no” box.

After questioning respondent for a brief period, customs officials decided to search respondent and his wife. As he was being escorted to a search room, respondent told an official that he and his wife were carrying over $20,000 in cash. Woodward removed approximately $12,000 from his boot; another $10,000 was found in a makeshift money belt concealed under his wife’s clothing.

Woodward was indicted on charges of making a false statement to an agency of the United States, 18 U. S. C. § 1001, and willfully failing to report that he was carrying in excess of $5,000 into the United States, 84 Stat. 1121, 1122, 31 U. S. C. §§1058, 1101 (1976 ed.). The same conduct— answering “no” to the question whether he was carrying more than $5,000 into the country — formed the basis of each count. A jury convicted Woodward on both charges; he received a sentence of six months in prison on the false statement count, and a consecutive 3-year term of probation on the currency reporting count. During the proceedings in the District Court, the respondent never asserted that Congress did not intend to permit cumulative punishment for conduct violating the false statement and the currency reporting statutes.

The United States Court of Appeals for the Ninth Circuit, after inviting briefs on the subject, held that respondent’s conduct could not be punished under both 18 U. S. C. § 1001 and 31 U. S. C. §§ 1058, 1101 (1976 ed.). See 726 F. 2d 1320 (1983). The court applied the rule of statutory construction contained in Blockburger v. United States, 284 U. S. 299, 304 (1932) — “‘whether each provision requires proof of a fact which the other does not’ ” — and held that the false statement felony was a lesser included offense of the currency reporting misdemeanor. 726 F. 2d, at 1323. In other words, every violation of the currency reporting statute necessarily entails a violation of the false statement law. The court reasoned that a willful failure to file a required report is a form of concealment prohibited by 18 U. S. C. § 1001. Concluding that Congress presumably intended someone in respondent’s position to be punished only under the currency reporting misdemeanor, the Court of Appeals reversed respondent’s felony conviction for making a false statement. See 726 F. 2d, at 1327.

The Court of Appeals plainly misapplied the Blockburger rule for determining whether Congress intended to permit cumulative punishment; proof of a currency reporting violation does not necessarily include proof of a false statement offense. Section 1001 proscribes the nondisclosure of a material fact only if the fact is “concealed]... by any trick, scheme, or device.” (Emphasis added.) A person could, without employing a “trick, scheme, or device,” simply and willfully fail to file a currency disclosure report. A traveler who enters the country and passes through Customs prepared to answer questions truthfully, but is never asked whether he is carrying over $5,000 in currency, might nonetheless be subject to conviction under 31 U. S. C. § 1058 (1976 ed.) for willfully transporting money without filing the required currency report. However, because he did not conceal a material fact by means of a “trick, scheme, or device,” (and did not make any false statement) his conduct would not fall within 18 U. S. C. § 1001.

There is no evidence in 18 U. S. C. § 1001 and 31 U. S. C. §§ 1058, 1101 (1976 ed.) that Congress did not intend to allow separate punishment for the two different offenses. See generally Albernaz v. United States, 450 U. S. 333, 340 (1981); Missouri v. Hunter, 459 U. S. 359, 367 (1983). Sections 1058 and 1101 were enacted by Congress in 1970 as part of the Currency and Foreign Transactions Reporting Act, Pub. L. 91-508, Tit. II, 84 Stat. 1118 et seq. Section 203(k) of that Act expressly provided:

“For the purposes of section 1001 of title 18, United States Code, the contents of reports required under any provision of this title are statements and representations in matters within the jurisdiction of an agency of the United States.” 31 U. S. C. §1052(k) (1976 ed.).

It is clear that in passing the currency reporting law, Congress’ attention was drawn to 18 U. S. C. § 1001, but at no time did it suggest that the two statutes could not be applied together. We cannot assume, therefore, that Congress was unaware that it had created two different offenses permitting multiple punishment for the same conduct. See Albernaz, supra, at 341-342.

Finally, Congress’ intent to allow punishment under both 18 U. S. C. §1001 and 31 U. S. C. §§1058, 1101 (1976 ed.) is shown by the fact that the statutes “are directed to separate evils.” See Albernaz, supra, at 343. The currency reporting statute was enacted to develop records that would “have a high degree of usefulness in criminal, tax, or regulatory investigations.” 31 U. S. C. § 1051 (1976 ed.). The false statement statute, on the other hand, was designed “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, 312 U. S. 86, 93 (1941).

All guides to legislative intent reveal that Congress intended respondent’s conduct to be punishable under both 18 U. S. C. § 1001, and 31 U. S. C. §§ 1058, 1101 (1976 ed.). Accordingly, the petition for a writ of certiorari is granted, and that part of the Court of Appeals’ judgment reversing respondent’s 18 U. S. C. § 1001 conviction is reversed.

It is so ordered.

       Title 18 U. S. C. § 1001 provides:
      “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

       Title 31 U. S. C. § 1101(a) (1976 ed.) provides in pertinent part:
      “Except as provided in subsection (c) of this section, whoever, whether as principal, agent, or bailee, or by an agent or bailee, knowingly—
      “(1) transports or causes to be transported monetary instruments—
      “(A) from any place within the United States to or through any place outside the United States, or

        “(B) to any place within the United States from or through any place outside the United States, or
      “(2) receives monetary instruments at the termination of their transportation to the United States from or through any place outside the United States
      in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with subsection (b) of this section.”
      Title 31 U. S. C. § 1058 (1976 ed.) provides:
      “Whoever willfully violates any provision of this chapter or any regulation under this chapter shall be fined not more than $1,000, or imprisoned not more than one year, or both.”
      Sections 1058 and 1101 were recently recodified without substantive change at 31 U. S. C. §§ 5322(a) and 5316. See Pub. L. 97-258, 96 Stat. 877 et seq.

       The converse is clearly not true; 31 U. S. C. §§ 1058, 1101 (1976 ed.), but not 18 U. S. C. § 1001, involve the failure to file a currency disclosure report.

       In Woodward’s ease, the Government did not have to prove the existence of a trick, scheme, or device. Woodward was charged with violating § 1001 because he made a false statement on the customs form. This type of affirmative misrepresentation is proscribed under the statute even if not accompanied by a trick, scheme, or device.

       See United States v. London, 550 P. 2d 206, 213 (CA5 1977) (§ 1001 requires “affirmative act by which means a material fact is concealed”).

       When Title 31 was recodified in 1982, this provision was eliminated as “Unnecessary” because “Section 1001 applies unless otherwise provided.” H. R. Rep. No. 97-651, p. 301 (1982).


author: Justice Powell

text:
    TRANS WORLD AIRLINES, INC. v. THURSTON et al.
    No. 83-997.
    Argued October 9, 1984
    Decided January 8, 1985

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

      Henry J. Oechler, Jr., argued the cause for petitioner in No. 83-997. With him on the briefs were Donald I. Strauber and Peter N. Hillman. Michael E. Abram argued the cause and filed briefs for the Air Line Pilots Association, International, as petitioner in No. 83-1325 and respondent in No. 83-997.

      Deputy Solicitor General Wallace argued the cause for respondent Equal Employment Opportunity Commission in both cases. With him on the briefs were Solicitor General Lee, Harriet S. Shapiro, Johnny J. Butler, and Philip B. Sklover. Raymond C. Fay argued the cause in both cases and filed a brief for respondents Thurston et al. With him on the briefs were Alan M. Serwer and Susan D. Goland.

      Together with No. 83-1325, Air Line Pilots Association, International v. Thurston et al., also on certiorari to the same court.

       Briefs of amici curiae urging reversal were filed for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; and for the Chamber of Commerce of the United States by Stephen A. Bokat and Robin S. Conrad.

        Robert M. Weinberg, Jeremiah A. Collins, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

        Edward L. Foote and Edward J. Wendrow filed a brief for United Airlines, Inc., as amicus curiae.

   Justice Powell

delivered the opinion of the Court.

Trans World Airlines, Inc. (TWA), a commercial airline, permits captains disqualifed from serving in that capacity for reasons other than age to transfer automatically to the position of flight engineer. In this case, we must decide whether the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., requires the airline to afford this same “privilege of employment” to those captains disqualified by their age. We also must decide what constitutes a “willful” violation of the ADEA, entitling a plaintiff to “liquidated” or double damages.

I

A

TWA has approximately 3,000 employees who fill the three cockpit positions on most of its flights. The “captain” is the pilot and controls the aircraft. He is responsible for all phases of its operation. The “first officer” is the copilot and assists the captain. The “flight engineer” usually monitors a side-facing instrument panel. He does no.t operate the flight controls unless the captain and the first officer become incapacitated.

In 1977, TWA and the Airline Pilots Association (ALPA) entered into a collective-bargaining agreement, under which every employee in a cockpit position was required to retire when he reached the age of 60. This provision for mandatory retirement was lawful under the ADEA, as part of a “bona fide seniority system.” See United Air Lines, Inc. v. McMann, 434 U. S. 192 (1977). On April 6, 1978, however, the Act was amended to prohibit the mandatory retirement of a protected individual because of his age. TWA officials became concerned that the company’s retirement policy, at least as it applied to flight engineers, violated the amended ADEA.

On July 19, 1978, TWA announced that the amended ADEA prohibited the forced retirement of flight engineers at age 60. The company thus proposed a new policy, under which employees in all three cockpit positions, upon reaching age 60, would be allowed to continue working as flight engineers. TWA stated that it would not implement its new policy until it “had the benefit of [ALPA’s] views.” ALPA’s views were not long in coming. The Union contended that the collective-bargaining agreement prohibited the employment of a flight engineer after his 60th birthday and that the proposed change was not required by the recently amended ADEA.

Despite opposition from the Union, TWA adopted a modified version of its proposal. Under this plan, any employee in “flight engineer status” at age 60 is entitled to continue working in that capacity. The new plan, unlike the initial proposal, does not give 60-year-old captains the right automatically to begin training as flight engineers. Instead, a captain may remain with the airline only if he has been able to obtain “flight engineer status” through the bidding procedures outlined in the collective-bargaining agreement. These procedures require a captain, prior to his 60th birthday, to submit a “standing bid” for the position of flight engineer. When a vacancy occurs, it is assigned to the most senior captain with a standing bid. If no vacancy occurs prior to his 60th birthday, or if he lacks sufficient seniority to bid successfully for those vacancies that do occur, the captain is retired.

Under the collective-bargaining agreement, a captain displaced for any reason besides age need not resort to the bidding procedures. For example, a captain unable to maintain the requisite first-class medical certificate, see 14 CFR § 67.13 (1984), may displace automatically, or “bump,” a less senior flight engineer. The medically disabled captain’s ability to bump does not depend upon the availability of a vacancy. Similarly, a captain whose position is eliminated' due to reduced manpower needs can “bump” a less senior flight engineer. Even if a captain is found to be incompetent to serve in that capacity, he is not discharged, but is allowed to transfer to a position as flight engineer without resort to the bidding procedures.

Respondents Harold Thurston, Christopher J. Clark, and Clifton A. Parkhill, former captains for TWA, were retired upon reaching the age of 60. Each was denied an opportunity to “bump” a less senior flight engineer. Thurston was forced to retire on May 26, 1978, before the company adopted its new policy. Clark did not attempt to bid because TWA had advised him that bidding would not affect his chances of obtaining a transfer. These two captains thus effectively were denied an opportunity to become flight engineers through the bidding procedures. The third captain, Park-hill, did file a standing bid for the position of flight engineer. No vacancies occurred prior to Parkhill’s 60th birthday, however, and he too was forced to retire.

B

Thurston, Clark, and Parkhill filed this action against TWA and ALPA in the United States District Court for the Southern District of New York. They argued that the company’s transfer policy violated ADE A § 4(a)(1), 81 Stat. 603, 29 U. S. C. § 623(a)(1). The airline allowed captains displaced for reasons other than age to “bump” less senior flight engineers. Captains compelled to vacate their positions upon reaching age 60, they claimed, should be afforded this same “privilege of employment.” The Equal Employment Opportunity Commission intervened on behalf of 10 other age-disqualified captains who had been discharged as a result of their inability to displace less senior flight engineers.

The District Court entered a summary judgment in favor of defendants TWA and ALPA. Air Line Pilots Assn. v. Trans World Air Lines, 547 F. Supp. 1221 (1982). The court held that the plaintiffs had failed to establish a prima facie case of age discrimination under the test set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). None could show that at the time of his transfer request a vacancy existed for the position of flight engineer. See id., at 802. Furthermore, the court found that two affirmative defenses justified the company’s transfer policy. 29 U. S. C. §§ 623(f)(1) and (f)(2). The United States Court of Appeals for the Second Circuit reversed the District Court’s judgment. 713 F. 2d 940 (1983). It found the McDonnell Douglas formula inapposite because the plaintiffs had adduced direct proof of age discrimination. Captains disqualified for reasons other than age were allowed to “bump” less senior flight engineers. Therefore, the company was required by ADEA § 4(a)(1), 29 U. S. C. § 623(a)(1), to afford 60-year-old captains this same “privilege of employment.” The Court of Appeals also held that the affirmative defenses of the ADEA did not justify the company’s discriminatory transfer policy. 713 F. 2d, at 949-951. TWA was held liable for “liquidated” or double damages because its violation of the ADEA was found to be “willful.” According to the court, an employer’s conduct is “willful” if it “knows or shows reckless disregard for the matter of whether its conduct is prohibited by the ADEA.” Id., at 956. Because “TWA was clearly aware of the 1978 ADEA amendments,” the Court of Appeals found the respondents entitled to double damages. Id., at 956-957.

TWA filed a petition for a writ of certiorari in which it challenged the Court of Appeals’ holding that the transfer policy violated the ADEA and that TWA’s violation was “willful.” The Union filed a cross-petition raising only the liability issue. We granted certiorari in both eases, and consolidated them for argument. 466 U. S. 926 (1984). We now affirm as to the violation of the ADEA, and reverse as to the claim for double damages.

II

A

The ADEA “broadly prohibits arbitrary discrimination in the workplace based on age.” Lorillard v. Pons, 434 U. S. 575, 577 (1978). Section 4(a)(1) of the Act proscribes differential treatment of older workers “with respect to . . . [a] privilegie] of employment.” 29 U. S. C. § 623(a). Under TWA’s transfer policy, 60-year-old captains are denied a “privilege of employment” on the basis of age. Captains who become disqualified from serving in that position for reasons other than age automatically are able to displace less senior flight engineers. Captains disqualified because of age are not afforded this same “bumping” privilege. Instead, they are forced to resort to the bidding procedures set forth in the collective-bargaining agreement. If there is no vacancy prior to a bidding captain’s 60th birthday, he must retire.

The Act does not require TWA to grant transfer privileges to disqualified captains. Nevertheless, if TWA does grant some disqualified captains the “privilege” of “bumping” less senior flight engineers, it may not deny this opportunity to others because of their age. In Hishon v. King & Spalding, 467 U. S. 69 (1984), we held that “[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all.” Id., at 75. This interpretation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000(e) et seq., applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA “were derived in haec verba from Title VII.” Lorillard v. Pons, supra, at 584.

TWA contends that the respondents failed to make out a prima facie case of age discrimination under McDonnell Douglas v. Green, 411 U. S. 792 (1973), because at the time they were retired, no flight engineer vacancies existed. This argument fails, for the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. See Teamsters v. United States, 431 U. S. 324, 358, n. 44 (1977). The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the “plaintiff [has] his day in court despite the unavailability of direct evidence.” Loeb v. Textron, Inc., 600 F. 2d 1003, 1014 (CA1 1979). In this case there is direct evidence that the method of transfer available to a disqualified captain depends upon his age. Since it allows captains who become disqualified for any reason other than age to “bump” less senior flight engineers, TWA’s transfer policy is discriminatory on its face. Cf. Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 (1978) (employer’s policy requiring female employees to make larger contribution to pension fund than male employees is discriminatory on its face).

B

Although we find that TWA’s transfer policy discriminates against disqualified captains on the basis of age, our inquiry cannot end here. Petitioners contend that the age-based transfer policy is justified by two of the ADEA’s five affirmative defenses. Petitioners first argue that the discharge of respondents was lawful because age is a “bona fide occupational qualification” (BFOQ) for the position of captain. 29 U. S. C. § 623(f)(1). Furthermore, TWA claims that its retirement policy is part of a “bona fide seniority system,” and thus exempt from the Act’s coverage. 29 U. S. C. § 623(f)(2).

Section 4(f)(1) of the ADEA provides that an employer may take “any action otherwise prohibited” where age is a “bona fide occupational qualification.” 29 U. S. C. § 623(f)(1). In order to be permissible under § 4(f)(1), however, the age-based discrimination must relate to a “particular business.” Ibid. Every court to consider the issue has assumed that the “particular business” to which the statute refers is the job from which the protected individual is excluded. In Weeks v. Southern Bell Tel. & Tel. Co., 408 F. 2d 228 (CA5 1969), for example, the court considered the Title VII claim of a female employee who, because of her sex, had not been allowed to transfer to the position of switchman. In deciding that the BFOQ defense was not available to the defendant, the court considered only the job of switchman.

TWA’s discriminatory transfer policy is not permissible under § 4(f)(1) because age is not a BFOQ for the “particular” position of flight engineer. It is necessary to recognize that the airline has two age-based policies: (i) captains are not allowed to serve in that capacity after reaching the age of 60; and (ii) age-disqualified captains are not given the transfer privileges afforded captains disqualified for other reasons. The first policy, which precludes individuals from serving as captains, is not challenged by respondents. The second practice does not operate to exclude protected individuals from the position of captain; rather it prevents qualified 60-year-olds from working as flight engineers. Thus, it is the “particular” job of flight engineer from which the respondents were excluded by the discriminatory transfer policy. Because age under 60 is not a BFOQ for the position of flight engineer, the age-based discrimination at issue in this case cannot be justified by § 4(f)(1).

TWA nevertheless contends that its BFOQ argument is supported by the legislative history of the amendments to the ADEA. In 1978, Congress amended ADEA § 4(f)(2), 29 U. S. C. § 623(f)(2), to prohibit the involuntary retirement of protected individuals on the basis of age. Some Members of Congress were concerned that this amendment might be construed as limiting the employer’s ability to terminate workers subject to a valid BFOQ. The Senate proposed an amendment to § 4(f)(1) providing that an employer could establish a mandatory retirement age where age is a BFOQ. S. Rep. No. 95-493, pp. 11, 24 (1977). In the Conference Committee, however, the proposed amendment was withdrawn because “the [Senate] conferees agreed that . . . [it] neither added to nor worked any change upon present law.” H. R. Conf. Rep. No. 95-950, p. 7 (1978). The House Committee Report also indicated that an individual could be compelled to retire from a position for which age was a BFOQ. H. R. Rep. No. 95-527, pt. 1, p. 12 (1977).

The legislative history of the 1978 Amendments does not support petitioners’ position. The history shows only that the ADEA does not prohibit TWA from retiring all disqualified captains, including those who are incapacitated because of age. This does not mean, however, that TWA can make dependent upon the age of the individual the availability of a transfer to a position for which age is not a BFOQ. Nothing in the legislative history cited by petitioners indicates a congressional intention to allow an employer to discriminate against an older worker seeking to transfer to another position, on the ground that age was a BFOQ for his former job.

TWA also contends that its discriminatory transfer policy is lawful under the Act because it is part of a “bona fide seniority system.” 29 U. S. C. § 623(f)(2). The Court of Appeals held that the airline’s retirement policy is not mandated by the negotiated seniority plan. We need not address this finding; any seniority system that includes the challenged practice is not “bona fide” under the statute. The Act provides that a seniority system may not “require or permit” the involuntary retirement of a protected individual because of his age. Ibid. Although the FAA “age 60 rule” may have caused respondents’ retirement, TWA’s seniority plan certainly “permitted” it within the meaning of the ADEA. Ibid. Moreover, because captains disqualified for reasons other than age are allowed to “bump” less senior flight engineers, the mandatory retirement was age-based. Therefore, the “bona fide seniority system” defense is unavailable to the petitioners.

In summary, TWA’s transfer policy discriminates against protected individuals on the basis of age, and thereby violates the Act. The two statutory defenses raised by petitioners do not support the argument that this discrimination is justified. The BFOQ defense is meritless because age is not a bona fide occupational qualification for the position of flight engineer, the job from which the respondents were excluded. Nor can TWA’s policy be viewed as part of a bona fide seniority system. A system that includes this discriminatory transfer policy permits the forced retirement of captains on the basis of age.

Ill

A

Section 7(b) of the ADEA, 81 Stat. 604, 29 U. S. C. § 626(b), provides that the rights created by the Act are to be “enforced in accordance with the powers, remedies, and procedures” of the Fair Labor Standards Act. See Lorillard v. Pons, 434 U. S., at 579. But the remedial provisions of the two statutes are not identical. Congress declined to incorporate into the ADEA several FLSA sections. Moreover, § 16(b) of the FLSA, which makes the award of liquidated damages mandatory, is significantly qualified in ADEA § 7(b) by a proviso that a prevailing plaintiff is entitled to double damages “only in cases of willful violations.” 29 U. S. C. § 626(b). In this case, the Court of Appeals held that TWA’s violation of the ADEA was “willful,” and that the respondents therefore were entitled to double damages. 713 F. 2d, at 957. We granted certiorari to review this holding.

The legislative history of the ADEA indicates that Congress intended for liquidated damages to be punitive in nature. The original bill proposed by the administration incorporated § 16(a) of the FLSA, which imposes criminal liability for a willful violation. See 113 Cong. Rec. 2199 (1967). Senator Javits found “certain serious defects” in the administration bill. He stated that “difficult problems of proof . . . would arise under a criminal provision,” and that the employer’s invocation of the Fifth Amendment might impede investigation, conciliation, and enforcement. Id., at 7076. Therefore, he proposed that “the [FLSA’s] criminal penalty in cases of willful violation . . . [be] eliminated and a double damage liability substituted.” Ibid. Senator Javits argued that his proposed amendment would “furnish an effective deterrent to willful violations [of the ADEA],” ibid., and it was incorporated into the ADEA with only minor modification, S. 788, 90th Cong., 1st Sess. (1967).

This Court has recognized that in enacting the ADEA, “Congress exhibited ... a detailed knowledge of the FLSA provisions and their judicial interpretation . ...” Lorillard v. Pons, supra, at 581. The manner in which FLSA § 16(a) has been interpreted therefore is relevant. In general, courts have found that an employer is subject to criminal penalties under the FLSA when he “wholly disregards the law . . . without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law.” Nabob Oil Co. v. United States, 190 F. 2d 478, 479 (CA10), cert. denied, 342 U. S. 876 (1951); see also Darby v. United States, 132 F. 2d 928 (CA5 1943). This standard is substantially in accord with the interpretation of “willful” adopted by the Court of Appeals in interpreting the liquidated damages provision of the ADEA. The court below stated that a violation of the Act was “willful” if “the employer . . . knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” 713 F. 2d, at 956. Given the legislative history of the liquidated damages provision, we think the “reckless disregard” standard is reasonable.

The definition of “willful” adopted by the above cited courts is consistent with the manner in which this Court has interpreted the term in other criminal and civil statutes. In United States v. Murdock, 290 U. S. 389 (1933), the defendant was prosecuted under the Revenue Acts of 1926 and 1928, which made it a misdemeanor for a person “willfully” to fail to pay the required tax. The Murdock Court stated that conduct was “willful” within the meaning of this criminal statute if it was “marked by careless disregard [for] whether or not one has the right so to act.” Id., at 395. In United States v. Illinois Central R. Co., 303 U. S. 239 (1938), the Court applied the Murdock definition of “willful” in a civil case. There, the defendant’s failure to unload a cattle car was “willful,” because it showed a disregard for the governing statute and an indifference to its requirements. 303 U. S., at 242-243.

The respondents argue that an employer’s conduct is willful if he is “cognizant of an appreciable possibility that the employees involved were covered by the [ADEA].” In support of their position, the respondents cite § 6 of the Portal-to-Portal Act of 1947 (PPA), 29 U. S. C. § 255(a), which is incorporated in both the ADEA and the FLSA. Section 6 of the PPA provides for a 2-year statute of limitations period unless the violation is willful, in which case the limitations period is extended to three years. 29 U. S. C. § 255(a). Several courts have held that a violation is willful within the meaning of § 6 if the employer knew that the ADEA was “in the picture.” See, e. g., Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (CA5 1971), cert. denied, 409 U. S. 948 (1972); EEOC v. Central Kansas Medical Center, 705 F. 2d 1270, 1274 (CA10 1983). Respondents contend that the term “willful” should be interpreted in a similar manner in applying the liquidated damages provision of the ADEA.

We are unpersuaded by respondents’ argument that a violation of the Act is “willful” if the employer simply knew of the potential applicability of the ADEA. Even if the “in the picture” standard were appropriate for the statute of limitations, the same standard should not govern a provision dealing with liquidated damages. More importantly, the broad standard proposed by the respondents would result in an award of double damages in almost every case. As employers are required to post ADEA notices, it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability. Both the legislative history and the structure of the statute show that Congress intended a two-tiered liability scheme. We decline to interpret the liquidated damages provision of ADEA § 7(b) in a manner that frustrates this intent.

B

As noted above, the Court of Appeals stated that a violation is “willful” if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” 713 F. 2d, at 956. Although we hold that this is an acceptable way to articulate a definition of “willful,” the court below misapplied this standard. TWA certainly did not “know” that its conduct violated the Act. Nor can it fairly be said that TWA adopted its transfer policy in “reckless disregard” of the Act’s requirements. The record makes clear that TWA officials acted reasonably and in good faith in attempting to determine whether their plan would violate the ADEA. See Nabob Oil Co. v. United States, supra.

Shortly after the ADEA was amended, TWA officials met with their lawyers to determine whether the mandatory retirement policy violated the Act. Concluding that the company’s existing plan was inconsistent with the ADEA, David Crombie, the airline’s Senior Vice President for Administration, proposed a new policy. Despite opposition from the Union, the company adopted a modified version of this initial proposal. Under the plan adopted on August 10, 1978, any pilot in “flight engineer status” on his 60th birthday could continue to work for the airline. On the day the plan was adopted, the Union filed suit against the airline claiming that the new retirement policy constituted a “major” change in the collective-bargaining agreement, and thus was barred by § 6 of the Railway Labor Act, 45 U. S. C. § 156. Nevertheless, TWA adhered to its new policy.

As evidence of “willfulness,” respondents point to comments made by J. E. Frankum, the Vice President of Flight Operations. After Crombie was hospitalized in August 1978, Frankum assumed responsibility for bringing TWA’s retirement policy into conformance with the ADEA. Despite legal advice to the contrary, Frankum initially believed that the company was not required to allow any pilot over 60 to work. Frankum later abandoned this position in favor of the plan approved on August 10, 1978. Frankum apparently had been concerned only about whether flight engineers could work af ter reaching the age of 60. There is no indication that TWA was ever advised by counsel that its new transfer policy discriminated against captains on the basis of age.

There simply is no evidence that TWA acted in “reckless disregard” of the requirements of the ADEA. The airline had obligations under the collective-bargaining agreement with the Airline Pilots Association. In an attempt to bring its retirement policy into compliance with the ADEA, while at the same time observing the terms of the collective-bargaining agreement, TWA sought legal advice and consulted with the Union. Despite opposition from the Union, a plan was adopted that permitted cockpit employees to work as “flight engineers” after reaching age 60. Apparently TWA officials and the airline’s attorneys failed to focus specifically on the effect of each aspect of the new retirement policy for cockpit personnel. It is reasonable to believe that the parties involved, in focusing on the larger overall problem, simply overlooked the challenged aspect of the new plan. We conclude that TWA’s violation of the Act was not willful within the meaning of § 7(b), and that respondents therefore are not entitled to liquidated damages.

IV

The ADEA requires TWA to afford 60-year-old captains the same transfer privileges that it gives to captains disqualified for reasons other than age. Therefore, we affirm the Court of Appeals on this issue. We do not agree with its holding that TWA’s violation of the Act was willful. We accordingly reverse its judgment that respondents are entitled to liquidated or double damages.

It is so ordered.

       On certain long-distance flights, a fourth crew member, the “international relief officer,” is in the cockpit. On some types of aircraft, there are only two cockpit positions.

       Section 2(a) of the Age Discrimination in Employment Act Amendments of 1978, Pub. L. 95-256, 92 Stat. 189, 29 U. S. C. § 623(f)(2).

       A regulation promulgated by the Federal Aviation Administration prohibits anyone from serving after age 60 as a pilot on a commercial carrier. 14 CFR § 121.383(c)(1984). Captains and first officers are considered “pilots” subject to this regulation; flight engineers are not. Therefore, TWA officials were concerned primarily with the effect that the 1978 amendments had on the company’s policy of mandatory retirement of flight engineers.

       The proposal was announced in a letter to ALPA from David Crombie, TWA’s Senior Vice President for Administration.

       On the same date that TWA implemented its new policy, ALPA filed suit against the company. ALPA contended that TWA’s action constituted a “unilateral change in working conditions,” and hence was violative of the Railway Labor Act, 45 U. S. C. §§ 156-188. This action, ALPA v. Trans World Airlines, was consolidated with the present action in the United States District Court for the Southern District of New York. That court granted summary judgment in favor of TWA, and the Court of Appeals for the Second Circuit affirmed. It held that the new retirement policy did not constitute a “major” change in the existing terms and conditions of employment, and that the Union therefore was without a remedy in the federal courts. See 45 U. S. C. § 156.

       The term “captain” will hereinafter be used to refer to both the positions of captain and first officer.

       In 1980, TWA imposed an additional restriction on captains bidding for flight engineer positions. Successful bidders were required to “fulfill their bids in a timely manner.” Under this amended practice, captains who bid successfully for positions as flight engineers were required to “activate” their bids immediately. As a result, many captains under age 60 were trained for and assumed flight engineer positions, with resulting lower pay and responsibility.

       The pilot must be able to obtain the second-class medical certificate that is required for the position of flight engineer. See 14 CFR § 67.15 (1984).

       If the disabled captain lacks sufficient seniority to displace, he is not discharged. Rather, he is entitled to go on unpaid medical leave for up to five years, during which time he retains and continues to accrue seniority.

       Only those flight engineers in the current and last former domiciles of the displaced captain may be “bumped.” If a captain has insufficient seniority to displace a flight engineer at either of these domiciles, he is not discharged. Instead, he is placed in furlough status for a period of up to 10 years, during which time he continues to accrue seniority for purposes of a recall.

       Although the collective-bargaining agreement does not address disciplinary downgrades, TWA’s Vice President of Flight Operations, J. E. Frankum, stated that such downgrades had occurred “many times over many years.”

       Captains disqualified for other reasons also are allowed to “bump” less senior flight engineers. For example, the collective-bargaining agreement provides that a captain who fails to “requalify” in that position will not be discharged.

       Three of the EEOC claimants have settled with TWA. The remaining seven claimants are Lusk, Bobzin, Gowling, Widmayer, Humbles, Roque-more, and Lewis. Lusk and Bobzin were retired prior to August 10,1978. Thus, like Harold Thurston, they had no way of knowing that the bidding procedures of the collective-bargaining agreement would represent a possible means of transferring to the position of flight engineer.
      Gowling, Widmayer, Humbles, and Roquemore submitted standing bids for the position of flight engineer. Because no vacancies occurred prior to the time that they reached the age of 60, each was discharged.
      Lewis submitted a bid and was awarded a position as flight engineer on October 31, 1979. On January 15,1980, he was told that he would have to “fulfill his bid in a timely manner.” See n. 7, supra. Because this would have required Lewis to assume his new position almost a year prior to his 60th birthday, he refused to appear for training. Therefore, his bid was canceled by TWA.

       The Court of Appeals also found that ALPA had violated ADEA § 4(e), 29 U. S. C. § 623(c), which prohibits unions from causing or attempting to cause an employer to engage in unlawful discrimination. The court found, however, that ALPA was not liable for damages. It held that the ADEA does not permit the recovery of monetary damages, including backpay, against a labor organization. It noted that the ADEA incorporates the remedial scheme of the Fair Labor Standards Act, which does not allow actions against unions to recover damages. 713 F. 2d, at 957.
      In its petition for a writ of certiorari, TWA raised the issue of a union’s liability for damages under the ADEA. Although we granted the petition in full, we now conclude that the Court is without jurisdiction to consider this question. TWA was not the proper party to present this question. The airline cannot assert the right of others to recover damages against the Union.
      Both the individual respondents and the EEOC argue that the issue of union liability is properly before the Court. But the respondents failed to file a cross-petition raising this question. A prevailing party may advance any ground in support of a judgment in his favor. Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970). An argument that would modify the judgment, however, cannot be presented unless a cross-petition has been filed. FEA v. Algonquin SNG, Inc., 426 U. S. 548, 560, n. 11 (1976). In this case, the judgment of the Court of Appeals would be modified by the arguments advanced by the EEOC and the individual plaintiffs, as they are contending that the Union should be liable to them for monetary damages.

       The discriminatory transfer policy may violate the Act even though 83% of the 60-year-old captains were able to obtain positions as flight engineers through the bidding procedures. See Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam).

      It also should be noted that many of the captains who obtained positions as flight engineers were forced to assume that position prior to reaching age 60. See n. 7, supra. They were adversely affected by the discriminatory transfer policy despite the fact that they obtained positions as flight engineers.

       Several Courts of Appeals have recognized the similarity between the two statutes. In Hodgson v. First Federal Savings & Loan Assn., 455 F. 2d 818, 820 (1972), for example, the United States Court of Appeals for the Fifth Circuit stated that with “a few minor exceptions the prohibitions of [the ADEA] are in terms identical to those of Title VII of the Civil Rights Act of 1964.”

       In this litigation, the respondents have not challenged TWA’s claim that the FAA regulation establishes a BFOQ for the position of captain. The EEOC guidelines, however, do not list the FAA’s age-60 rule as an example of a BFOQ because the EEOC wishes to avoid any appearance that it endorses the rule. 29 CFR § 1625 (1984).

       The petitioners do not contend that age is a BFOQ for the position of flight engineer. Indeed, the airline has employed at least 148 flight engineers who are over 60 years old.

       Courts-.below have held that an employer’s action may be “willful,” within the meaning of § 16(a) of the FLSA, even though he did not have an evil motive or bad purpose. See Nabob Oil Co. v. United States. We do not agree with TWA’s argument that unless it intended to violate the Act, double damages are inappropriate under § 7(b) of the ADEA. Only one Court of Appeals has expressed approval of this position. See Loeb v. Textron, Inc., 600 F. 2d 1003, 1020, n. 27 (CA1 1979).

       The definition of “willful” set forth in Murdock and Illinois Central has been applied by courts interpreting numerous other criminal and civil statutes. See, e. g., Alabama Power Co. v. FERC, 584 F. 2d 750 (CA5 1978); F. X. Messina Construction Corp. v. Occupational Safety & Health Review Comm’n, 505 F. 2d 701 (CA1 1974).

         The Courts of Appeals are divided over whether Congress intended the “willfulness” standard to be identical for determining liquidated damages and for purposes of the limitations period. Compare Spagnuolo v. Whirlpool Corp., 641 F. 2d 1109, 1113 (CA4) (standards are identical), cert. denied, 454 U. S. 860 (1981), with Kelly v. American Standard, Inc., 640 F. 2d 974, 979 (CA9 1981) (standards are different).

       The “in the picture” standard proposed by the respondents would allow the recovery of liquidated damages even if the employer acted reasonably and in complete “good faith.” Congress hardly intended such a result.
      The Court interpreted the FLSA, as originally enacted, as allowing the recovery of liquidated damages any time that there was a violation of the Act. See Overnight Motor Transportation Co. v. Missel, 316 U. S. 572 (1942). In response to its dissatisfaction with that harsh interpretation of the provision, Congress enacted the Portal-to-Portal Act of 1947. See Lorillard v. Pons, 434 U. S. 575, 581-582, n. 8 (1978). Section 11 of the PPA, 29 U. S. C. § 260, provides the employer with a defense to a mandatory award of liquidated damages when it can show good faith and reasonable grounds for believing it was not in violation of the FLSA. Section 7(b) of the ADEA does not incorporate § 11 of the PPA, contra, Hays v. Republic Steel Corp., 531 F. 2d 1307 (CA5 1976). Nevertheless, we think that the same concerns are reflected in the proviso to § 7(b) of the ADEA.

       In his dissent, Judge Van Graafeiland also focused on the larger problem, rather than on the discriminatory transfer policy. Judge Van Graafeiland stated: “TWA is the only trunk airline that voluntarily has permitted [persons] . . . over 60 to continue working as flight engineers. Instead of receiving commendation for what it has done, TWA is held liable as a matter of law for age discrimination,” 713 F. 2d, at 957.