author:
      Justice Marshall
      Justice Kennedy, Justice Scalia,

text:
    STEWART ORGANIZATION, INC., et al. v. RICOH CORP. et al.
    No. 86-1908.
    Argued February 29, 1988
    Decided June 20, 1988

      Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Kennedy, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 33. Scalia, J., filed a dissenting opinion, post, p. 33.

      F. A. Flowers III argued the cause for petitioners. With him on the briefs was Joseph W. Letzer.

      Scott M. Phelps argued the cause and filed a brief for respondents.
   Justice Marshall

delivered the opinion of the Court.

This case presents the issue whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause.

I

The dispute underlying this case grew out of a dealership agreement that obligated petitioner company, an Alabama corporation, to market copier products of respondent, a nationwide manufacturer with its principal place of business in New Jersey. The agreement contained a forum-selection clause providing that any dispute arising out of the contract could be brought only in a court located in Manhattan. Business relations between the parties soured under circumstances that are not relevant here. In September 1984, petitioner brought a complaint in the United States District Court for the Northern District of Alabama. The core of the complaint was an allegation that respondent had breached the dealership agreement, but petitioner also included claims for breach of warranty, fraud, and antitrust violations.

Relying on the contractual forum-selection clause, respondent moved the District Court either to transfer the case to the Southern District of New York under 28 U. S. C. § 1404(a) or to dismiss the case for improper venue under 28 U. S. C. § 1406. The District Court denied the motion. Civ. Action No. 84-AR-2460-S (Jan. 29, 1985). It reasoned that the transfer motion was controlled by Alabama law and that Alabama looks unfavorably upon contractual forum-selection clauses. The court certified its ruling for interlocutory appeal, see 28 U. S. C. § 1292(b) (1982 ed., Supp. IV), and the Court of Appeals for the Eleventh Circuit accepted jurisdiction.

On appeal, a divided panel of the Eleventh Circuit reversed the District Court. The panel concluded that questions of venue in diversity actions are governed by federal law, and that the parties’ forum-selection clause was enforceable as a matter of federal law. 779 F. 2d 643 (1986). The panel therefore reversed the order of the District Court and remanded with instructions to transfer the case to a Manhattan court. After petitioner successfully moved for rehearing en banc, 785 F. 2d 896 (1986), the full Court of Appeals proceeded to adopt the result, and much of the reasoning, of the panel opinion. 810 F. 2d 1066 (1987). The en banc court, citing Congress’ enactment or approval of several rules to govern venue determinations in diversity actions, first determined that “[v]enue is a matter of federal procedure.” Id., at 1068. The Court of Appeals then applied the standards articulated in the admiralty case of The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), to conclude that “the choice of forum clause in this contract is in all respects enforceable generally as a matter of federal law . . . .” 810 F. 2d, at 1071. We now affirm under somewhat different reasoning.

I I — I

Both the panel opinion and the opinion of the full Court of Appeals referred to the difficulties that often attend “the sticky question of which law, state or federal, will govern various aspects of the decisions of federal courts sitting in diversity.” 779 F. 2d, at 645. A district court’s decision whether to apply a federal statute such as § 1404(a) in a diversity action, however, involves a considerably less intricate analysis than that which governs the “relatively unguided Erie choice.” Hanna v. Plumer, 380 U. S. 460, 471 (1965) (referring to Erie R. Co. v. Tompkins, 304 U. S. 64 (1938)). Our cases indicate that when the federal law sought to be applied is a congressional statute, the first and chief question for the district court’s determination is whether the statute is “sufficiently broad to control the issue before the Court.” Walker v. Armco Steel Corp., 446 U. S. 740, 749-750 (1980); Burlington Northern R. Co. v. Woods, 480 U. S. 1, 4-5 (1987). This question involves a straightforward exercise in statutory interpretation to determine if the statute covers the point in dispute. See Walker v. Armco Steel Corp., supra, at 750, and n. 9. See also Burlington Northern R. Co. v. Woods, supra, at 7 (identifying inquiry as whether a Federal Rule “occupies [a state rule’s] field of operation”).

If the district court determines that a federal statute covers the point in dispute, it proceeds to inquire whether the statute represents a valid exercise of Congress’ authority under the Constitution. See Hanna v. Plumer, supra, at 471 (citing Erie R. Co. v. Tompkins, supra, at 77-79). If Congress intended to reach the issue before the district court, and if it enacted its intention into law in a manner that abides with the Constitution, that is the end of the matter; “[fjederal courts are bound to apply rules enacted by Congress with respect to matters . . . over which it has legislative power.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 406 (1967); cf. Hanna v. Plumer, supra, at 471 (“When a situation is covered by one of the Federal Rules . . . the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions”). Thus, a district court sitting in diversity must apply a federal statute that controls the issue before the court and that represents a valid exercise of Congress’ constitutional powers.

III

Applying the above analysis to this case persuades us that federal law, specifically 28 U. S. C. § 1404(a), governs the parties’ venue dispute.

A

At the outset we underscore a methodological difference in our approach to the question from that taken by the Court of Appeals. The en banc court determined that federal law controlled the issue based on a survey of different statutes and judicial decisions that together revealed a significant federal interest in questions of venue in general, and in choice-of-forum clauses in particular. The Court of Appeals then proceeded to apply the standards announced in our opinion in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), to determine that the forum-selection clause in this case was enforceable. But the immediate issue before the District Court was whether to grant respondent’s motion to transfer the action under § 1404(a), and as Judge Tjoflat properly noted in his special concurrence below, the immediate issue before the Court of Appeals was whether the District Court’s denial of the § 1404(a) motion constituted an abuse of discretion. Although we agree with the Court of Appeals that the Bremen case may prove “instructive” in resolving the parties’ dispute, 810 F. 2d, at 1069; but cf. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641-642 (1981) (federal common law developed under admiralty jurisdiction not freely transferable to diversity setting), we disagree with the court’s articulation of the relevant inquiry as “whether the forum selection clause in this case is unenforceable under the standards set forth in The Bremen.” 810 F. 2d, at 1069. Rather, the first question for consideration should have been whether § 1404(a) itself controls respondent’s request to give effect to the parties’ contractual choice of venue and transfer this case to a Manhattan court. For the reasons that follow, we hold that it does.

B

Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Under the analysis outlined above, we first consider whether this provision is sufficiently broad to control the issue before the court. That issue is whether to transfer the case to a court in Manhattan in accordance with the forum-selection clause. We believe that the statute, fairly construed, does cover the point in dispute.

Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an “individualized, case-by-case consideration of convenience and fairness.” Van Dusen v. Barrack, 376 U. S. 612, 622 (1964). A motion to transfer under § 1404(a) thus calls on the district court to weigh in- the balance a number of case-specific factors. The presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court’s calculus. In its resolution of the § 1404(a) motion in this case, for example, the District Court will be called on to address such issues as the convenience of a Manhattan forum given the parties’ expressed preference for that venue, and the fairness of transfer in light of the forum-selection clause and the parties’ relative bargaining power. The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.

Section 1404(a) may not be the only potential source of guidance for the District Court to consult in weighing the parties’ private designation of a suitable forum. The premise of the dispute between the parties is that Alabama law may refuse to enforce forum-selection clauses providing for out-of-state venues as a matter of state public policy. If that is so, the District Court will have either to integrate the factor of the forum-selection clause into its weighing of considerations as prescribed by Congress, or else to apply, as it did in this case, Alabama’s categorical policy disfavoring forum-selection clauses. Our cases make clear that, as between these two choices in a single “field of operation,” Burlington Northern R. Co. v. Woods, 480 U. S., at 7, the instructions of Congress are supreme. Cf. ibid, (where federal law’s “discretionary mode of operation” conflicts with the nondiscretionary provision of Alabama law, federal law applies in diversity).

It is true that § 1404(a) and Alabama’s putative policy regarding forum-selection clauses are not perfectly coextensive. Section 1404(a) directs a district court to take account of factors other than those that'bear solely on the parties’ private ordering of their affairs. The district court also must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of “the interest of justice.” It is conceivable in a particular case, for example, that because of these factors a district court acting under § 1404(a) would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause, whereas the coordinate state rule might dictate the opposite result. See 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3847, p. 371 (2d ed. 1986). But this potential conflict in fact frames an additional argument for the supremacy of federal law. Congress has directed that multiple considerations govern transfer within the federal court system, and a state policy focusing on a single concern or a subset of the factors identified in § 1404(a) would defeat that command. Its application would impoverish the flexible and multifaceted analysis that Congress intended to govern motions to transfer within the federal system. The forum-selection clause, which represents the parties’ agreement as to the most proper forum, should receive neither dispositive consideration (as respondent might have it) nor no consideration (as Alabama law might have it), but rather the consideration for which Congress provided in § 1404(a). Cf. Norwood v. Kirkpatrick, 349 U. S. 29, 32 (1955) (§ 1404(a) accords broad discretion to district court, and plaintiff’s choice of forum is only one relevant factor for its consideration). This is thus not a case in which state and federal rules “can exist side by side . . . each controlling its own intended sphere of coverage without conflict.” Walker v. Armco Steel Corp., 446 U. S., at 752.

Because § 1404(a) controls the issue before the District Court, it must be applied if it represents a valid exercise of Congress’ authority under the Constitution. The constitutional authority of Congress to enact § 1404(a) is not subject to serious question. As the Court made plain in Hanna, “the constitutional provision for a federal court system . . . carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.” 380 U. S., at 472. See also id., at 473 (“Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts”). Section 1404(a) is doubtless capable of classification as a procedural rule, and indeed, we have so classified it in holding that a transfer pursuant to § 1404(a) does not carry with it a change in the applicable law. See Van Dusen v. Barrack, 376 U. S., at 636-637 (“[B]oth the history and purposes of § 1404(a) indicate that it should be regarded as a federal judicial housekeeping measure”). It therefore falls comfortably within Congress’ powers under Article III as augmented by the Necessary and Proper Clause. See Burlington Northern R. Co. v. Woods, supra, at 5, n. 3.

We hold that federal law, specifically 28 U. S. C. § 1404(a), governs the District Court’s decision whether to give effect to the parties’ forum-selection clause and transfer this case to a court in Manhattan. We therefore affirm the Eleventh Circuit order reversing the District Court’s application of Alabama law. The case is remanded so that the District Court may determine in the first instance the appropriate effect under federal law of the parties’ forum-selection clause on respondent’s § 1404(a) motion.

It is so ordered.

Justice Kennedy,

with whom Justice O’Connor joins, concurring.

I concur in full. I write separately only to observe that enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system. Although our opinion in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 10 (1972), involved a Federal District Court sitting in admiralty, its reasoning applies with much force to federal courts sitting in diversity. The justifications we noted in The Bremen to counter the historical disfavor forum-selection clauses had received in American courts, id., at 9, should be understood to guide the District Court’s analysis under § 1404(a).

The federal judicial system has a strong interest in the correct resolution of these questions, not only to spare litigants unnecessary costs but also to relieve courts of time-consuming pretrial motions. Courts should announce and encourage rules that support private parties who negotiate such clauses. Though state policies should be weighed in the balance, the authority and prerogative of the federal courts to determine the issue, as Congress has directed by § 1404(a), should be exercised so that a valid forum-selection clause is given controlling weight in all but the most exceptional cases. See The Bremen, supra, at 10.

Justice Scalia,

dissenting.

I agree with the opinion of the Court that the initial question before us is whether the validity between the parties of a contractual forum-selection clause falls within the scope of 28 U. S. C. § 1404(a). See ante, at 26-27, 29. I cannot agree, however, that the answer to that question is yes. Nor do I believe that the federal courts can, consistent with the twin-aims test of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), fashion a judge-made rule to govern this issue of contract validity.

When a litigant asserts that state law conflicts with a federal procedural statute or formal Rule of Procedure, a court’s first task is to determine whether the disputed point in question in fact falls within the scope of the federal statute or Rule. In this case, the Court must determine whether the scope of § 1404(a) is sufficiently broad to cause a direct collision with state law or implicitly to control the issue before the Court, i. e., validity between the parties of the forum-selection clause, thereby leaving no room for the operation of state law. See Burlington Northern R. Co. v. Woods, 480 U. S. 1, 4-5 (1987). I conclude that it is not.

Although the language of § 1404(a) provides no clear answer, in my view it does provide direction. The provision vests the district courts with authority to transfer a civil action to another district “[f ]or the convenience of parties and witnesses, in the interest of justice.” This language looks to the present and the future. As the specific reference to convenience of parties and witnesses suggests, it requires consideration of what is likely to be just in the future, when the case is tried, in light of things as they now stand. Accordingly, the courts in applying § 1404(a) have examined a variety of factors, each of which pertains to facts that currently exist or will exist: e. g., the forum actually chosen by the plaintiff, the current convenience of the parties and witnesses, the current location of pertinent books and records, similar litigation pending elsewhere, current docket conditions, and familiarity of the potential courts with governing state law. See 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§3848-3849, 3851, 3853-3854 (2d ed. 1986). In holding that the validity between the parties of a forum-selection clause falls within the scope of § 1404(a), the Court inevitably imports, in my view without adequate textual foundation, a new retrospective element into the court’s deliberations, requiring examination of what the facts were concerning, among other things, the bargaining power of the parties and the presence or absence of overreaching at the time the contract was made. See ante, at 28, and n. 7, 29.

The Court largely attempts to avoid acknowledging the novel scope it gives to § 1404(a) by casting the issue as how much weight a district court should give a forum-selection clause as against other factors when it makes its determination under § 1404(a). I agree that if the weight-among-factors issue were before us, it would be governed by § 1404 (a). That is because, while the parties may decide who between them should bear any inconvenience, only a court can decide how much weight should be given under § 1404(a) to the factor of the parties’ convenience as against other relevant factors such as the convenience of witnesses. But the Court’s description of the issue begs the question: what law governs whether the forum-selection clause is a valid or invalid allocation of any inconvenience between the parties. If it is invalid, i. e., should be voided, between the parties, it cannot be entitled to any weight in the § 1404(a) determination. Since under Alabama law the forum-selection clause should be voided, see Redwing Carriers, Inc. v. Foster, 382 So. 2d 554, 556 (Ala. 1980), in this case the question of what weight should be given the forum-selection clause can be reached only if as a preliminary matter federal law controls the issue of the validity of the clause between the parties.

Second, § 1404(a) was enacted against the background that issues of contract, including a contract’s validity, are nearly always governed by state law. It is simply contrary to the practice of our system that such an issue should be wrenched from state control in absence of a clear conflict with federal law or explicit statutory provision. It is particularly instructive in this regard to compare § 1404(a) with another provision, enacted by the same Congress a year earlier, that did pre-empt state contract law, and in precisely the same field of agreement regarding forum selection. Section 2 of the Federal Arbitration Act, 9 U. S. C. § 2, provides:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

We have said that an arbitration clause is a “kind of forum-selection clause,” Scherk v. Alberto-Culver Co., 417 U. S. 506, 519 (1974), and the contrast between this explicit preemption of state contract law on the subject and § 1404(a) could not be more stark. Section 1404(a) is simply a venue provision that nowhere mentions contracts or agreements, much less that the validity of certain contracts or agreements will be matters of federal law. It is difficult to believe that state contract law was meant to be pre-empted by this provision that we have said “should be regarded as a federal judicial housekeeping measure,” Van Dusen v. Barrack, 376 U. S. 612, 636-637 (1964), that we have said did not change “the relevant factors” which federal courts used to consider under the doctrine of forum non conveniens, Norwood v. Kirkpatrick, 349 U. S. 29, 32 (1955), and that we have held can be applied retroactively because it is procedural, Ex parte Collett, 337 U. S. 55, 71 (1949). It seems to me the generality of its language — “[f]or the convenience of parties and witnesses, in the interest of justice” — is plainly insufficient to work the great change in law asserted here.

Third, it has been common ground in this Court since Erie, 304 U. S., at 74-77, that when a federal procedural statute or Rule of Procedure is not on point, substantial uniformity of predictable outcome between federal and state courts in adjudicating claims should be striven for. See also Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, 496 (1941). This rests upon a perception of the constitutional and congressional plan underlying the creation of diversity and pendent jurisdiction in the lower federal courts, which should quite obviously be carried forward into our interpretation of ambiguous statutes relating to the exercise of that jurisdiction. We should assume, in other words, when it is fair to do so, that Congress is just as concerned as we have been to avoid significant differences between state and federal courts in adjudicating claims. Cf. Southland Corp. v. Keating, 465 U. S. 1, 15 (1984) (interpreting Federal Arbitration Act to apply to claims brought in state courts in order to discourage forum shopping). Thus, in deciding whether a federal procedural statute or Rule of Procedure encompasses a particular issue, a broad reading that would create significant disuniformity between state and federal courts should be avoided if the text permits. See, e. g., Walker v. Armco Steel Corp., 446 U. S. 740, 750-751 (1980); Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 556 (1949); Palmer v. Hoffman, 318 U. S. 109, 117 (1943); cf. P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 828 (3d ed. 1988) (“The Supreme Court has continued since Hanna to interpret the federal rules to avoid conflict with important state regulatory policies”). As I have shown, the interpretation given § 1404(a) by the Court today is neither the plain nor the more natural meaning; at best, § 1404(a) is ambiguous. I would therefore construe it to avoid the significant encouragement to forum shopping that will inevitably be provided by the interpretation the Court adopts today.

II Since no federal statute or Rule of Procedure governs the validity of a forum-selection clause, the remaining issue is whether federal courts may fashion a judge-made rule to govern the question. If they may not, the Rules of Decision Act, 28 U. S. C. § 1652, mandates use of state law. See Erie, supra, at 72-73; Hanna v. Plumer, 380 U. S. 460, 471-472 (1965) (if federal courts lack authority to fashion a rule, “state law must govern because there can be no other law”); DelCostello v. Teamsters, 462 U. S. 151, 174, n. 1 (1983) (O’Connor, J., dissenting) (Rules of Decision Act “simply requires application of state law unless federal law applies”); see also id,., at 159, n. 13.

In general, while interpreting and applying substantive law is the essence of the “judicial Power” created under Article III of the Constitution, that power does not encompass the making of substantive law. Cf. Erie, supra, at 78-79. Whatever the scope of the federal courts’ authority to create federal common law in other areas, it is plain that the mere fact that petitioner company here brought an antitrust claim, ante, at 24, does not empower the federal courts to make common law on the question of the validity of the forum-selection clause. See Campbell v. Haverhill, 155 U. S. 610, 616 (1895) (Rules of Decision Act “itself neither contains nor suggests ... a distinction” between federal-question cases and diversity cases); DelCostello, supra, at 173, n. 1 (Stevens, J., dissenting) (same); cf. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981). The federal courts do have authority, however, to make procedural rules that govern the practice before them. See 28 U. S. C. § 2071 (federal courts may make rules “for the conduct of their business”); Fed. Rule Civ. Proc. 83 (districts courts have authority to “regulate their practice”); see generally Sibbach v. Wilson & Co., 312 U. S. 1, 9-10 (1941).

In deciding what is substantive and what is procedural for these purposes, we have adhered to a functional test based on the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna, supra, at 468; see also ante, at 27, n. 6; Walker v. Armco Steel Corp., supra, at 747. Moreover, although in reviewing the validity of a federal procedural statute or Rule of Procedure we inquire only whether Congress or the rulemakers have trespassed beyond the wide latitude given them to determine that a matter is procedural, see Burlington Northern R. Co. v. Woods, 480 U. S., at 5; Hanna, supra, at 471-474, in reviewing the lower courts’ application of the twin-aims test we apply our own judgment as a matter of law.

Under the twin-aims test, I believe state law controls the question of the validity of a forum-selection clause between the parties. The Eleventh Circuit’s rule clearly encourages forum shopping. Venue is often a vitally important matter, as is shown by the frequency with which parties contractually provide for and litigate the issue. Suit might well not be pursued, or might not be as successful, in a significantly less convenient forum. Transfer to such a less desirable forum is, therefore, of sufficient import that plaintiffs will base their decisions on the likelihood of that eventuality when they are choosing whether to sue in state or federal court. With respect to forum-selection clauses, in a State with law unfavorable to validity, plaintiffs who seek to avoid the effect of a clause will be encouraged to sue in state court, and nonresident defendants will be encouraged to shop for more favorable law by removing to federal court. In the reverse situation — where a State has law favorable to enforcing such clauses — plaintiffs will be encouraged to sue in federal court. This significant encouragement to forum shopping is alone sufficient to warrant application of state law. Cf. Walker v. Armco Steel Corp., supra, at 753 (failure to meet one part of the twin-aims test suffices to warrant application of state law).

I believe creating a judge-made rule fails the second part of the twin-aims test as well, producing inequitable administration of the laws. The best explanation of what constitutes inequitable administration of the laws is that found in Erie itself: allowing an unfair discrimination between noncitizens and citizens of the forum state. 304 U. S., at 74-75; see also Hanna, 380 U. S., at 468, n. 9. Whether discrimination is unfair in this context largely turns on how important is the matter in question. See id., at 467-468, and n. 9. The decision of an important legal issue should not turn on the accident of diversity of citizenship, see, e. g., Walker, supra, at 753, or the presence of a federal question unrelated to that issue. It is difficult to imagine an issue of more importance, other than one that goes to the very merits of the lawsuit, than the validity of a contractual forum-selection provision. Certainly, the Erie doctrine has previously been held to require the application of state law on subjects of similar or obviously lesser importance. See, e. g., Walker, supra (whether filing of complaint or service tolls statute of limitations); Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 202-204 (1956) (arbitrability); Cohen v. Beneficial Industrial Loan Corp., 337 U. S., at 555-556 (indemnity bond for litigation expenses). Nor can or should courts ignore that issues of contract validity are traditionally matters governed by state law.

For the reasons stated, I respectfully dissent.

       Specifically, the forum-selection clause read: “Dealer and Ricoh agree that any appropriate state or federal district court located in the Borough of Manhattan, New York City, New York, shall have exclusive jurisdiction over any case or controversy arising under or in connection with this Agreement and shall be a proper forum in which to adjudicate such case or controversy.” App. 38-39.

       Judge Tjoflat, in a special concurrence joined by two other judges, argued that the District Court should have taken account of, and ultimately should have enforced, the forum-selection clause in its evaluation of the factors of justice and convenience that govern the transfer of cases under 28 U. S. C. § 1404(a). 810 F. 2d, at 1071-1076. There also was a dissenting opinion by five members of the Eleventh Circuit, who argued that state law should govern the dispute and warned that the application of federal law would encourage forum shopping and improperly undermine Alabama policy. Id., at 1076-1077.

         Respondent points out that jurisdiction in this case was alleged to rest both on the existence of an antitrust claim, see 28 U. S. C. § 1337, and diversity of citizenship, see 28 U. S. C. § 1332. Respondent does not suggest how the presence of a federal claim should affect the District Court’s analysis of applicable law. The Court of Appeals plurality likewise did not address this issue, and indeed characterized this case simply as a diversity breach-of-contract action. See 810 F. 2d 1066, 1067, 1068 (1987). Our conclusion that federal law governs transfer of this case, see. Part III, infra, makes this issue academic for purposes of this case, because the presence of a federal question could cut only in favor of the application of federal law. We therefore are not called on to decide, nor do we decide, whether the existence of fedei'al-question as well as diversity jurisdiction necessarily alters a district court’s analysis of applicable law.

       Our cases at times have referred to the question at this stage of the analysis as an inquiry into whether there is a “direct collision” between state and federal law. See, e. g., Walker v. Armco Steel Corp., 446 U. S., at 749; Hanna v. Plumer, 380 U. S. 460, 472 (1965). Logic indicates, however, and a careful reading of the relevant passages confirms, that this language is not meant to mandate that federal law and state law be perfectly coextensive and equally applicable to the issue at hand; rather, the “direct collision” language, at least where the applicability of a federal statute is at issue, expresses the requirement that the federal statute be sufficiently broad to cover the point in dispute. See Hanna v. Plumer, supra, at 470. It would make no sense for the supremacy of federal law to wane precisely because there is no state law directly on point.

        Hanna v. Plumer, supra, identifies an additional inquiry where the applicability of a Federal Rule of Civil Procedure is in question. Federal Rules must be measured against the statutory requirement of the Rules Enabling Act that they not “abridge, enlarge or modify any substantive right_” 28 U. S. C. §2072.

       If no federal statute or Rule covers the point in dispute, the district court then proceeds to evaluate whether application of federal judge-made law would disserve the so-called “twin aims of the Erie rule:, discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, supra, at 468. If application of federal judge-made law would disserve these two policies, the district court should apply state law. See Walker v. Armco Steel Corp., supra, at 752-753.

       In The Bremen, this Court held that federal courts sitting in admiralty generally should enforce forum-selection clauses absent a showing that to do so “would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” 407 U. S., at 15.

       The parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U. S. C. § 1406(a) because respondent apparently does business in the Northern District of Alabama. See 28 U. S. C. § 1391(c) (venue proper in judicial district in which corporation is doing business).

       In its application of the standards set forth in The Bremen to this case, the Court of Appeals concluded that the Alabama policy against the enforcement of forum-selection clauses is intended to apply only to protect the jurisdiction of the state courts of Alabama and therefore would not come into play in this case, in which case this dispute might be much ado about nothing. See 810 F. 2d, at 1069-1070. Our determination that § 1404(a) governs the parties’ dispute notwithstanding any contrary Alabama policy makes it unnecessary to address the contours of state law. See n. 4, supra.

      The dissent does not dispute this point, but rather argues that if the forum-selection clause would be unenforceable under state law, then the clause cannot be accorded any weight by a federal court. See post, at 35. Not the least of the problems with the dissent’s analysis is that it makes the applicability of a federal statute depend on the content of state law. See n. 4, supra. If a State cannot pre-empt a district court’s consideration of a forum-selection clause by holding that the clause is automatically enforceable, it makes no sense for it to be able to do so by holding the clause automatically void.

       Because a validly enacted Act of Congress controls the issue in dispute, we have no occasion to evaluate the impact of application of federal judge-made law on the “twin aims” that animate the Erie doctrine.

      Contrary to the opinion of the Court, there is nothing unusual about having “the applicability of a federal statute depend on the content of state law.” Ante, at 31, n. 10. We have recognized that precisely this is required when the application of the federal statute depends, as here, on resolution of an underlying issue that is fundamentally one of state law. See Commissioner v. Estate of Bosch, 387 U. S. 456, 457, 464-465 (1967); cf. Budinich v. Becton Dickinson & Co., 486 U. S. 196, 199 (1988) (dictum). Nor is the approach I believe is required undermined by the fact that there would still be some situations where the state-law rule on the validity of a forum-selection clause would not be dispositive of the issue of transfer between federal courts. When state law would hold a forum-selection clause invalid the federal court could nonetheless order transfer to another federal court under § 1404(a), but it could do so only if such transfer was warranted without regard to the forum-selection clause. This is not at all remarkable since whether to transfer a ease from one federal district court to another for reasons other than the contractual agreement of the parties is plainly made a matter of federal law by § 1404(a). When, on the other hand, state law would hold a forum-selection clause valid, I agree with Justice Kennedy’s concurrence that under § 1404(a) such a valid forum-selection clause is to be “given controlling weight in all but the most exceptional cases.” Ante, at 33. And even in those exceptional cases where a forum-selection clause is valid under state law but transfer is unwarranted because of some factor other than the convenience of the parties, the district court should give effect to state contract law by dismissing the suit.


source: Caselaw Access Project

author: Justice Blackmun Justice Scalia,

license: Public Domain

text:
    WEST v. ATKINS
    No. 87-5096.
    Argued March 28, 1988
    Decided June 20, 1988

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 58.

      Adam Stein argued the cause for petitioner. With him on the brief was Richard E. Giroux.

      Jacob L. Safron, Special Deputy Attorney General of North Carolina, argued the cause for respondent. With him on the brief was Lacy H. Thornburg, Attorney General.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by John Poivell, Norman Smith, Elizabeth Alexander, Edward I. Koren, and Alvin J. Bronstein; and for the American Public Health Association by William J. Rold.

   Justice Blackmun

delivered the opinion of the Court.

This case presents the question whether a physician who is under contract with the State to provide medical services to inmates at a state-prison hospital on a part-time basis acts “under color of state law,” within the meaning of 42 U. S. C. § 1983, when he treats an inmate.

Petitioner, Quincy West, tore his left Achilles tendon in 1983 while playing volleyball at Odom Correctional Center, the Jackson, N. C., state prison in which he was incarcerated. A physician under contract to provide medical care to Odom inmates examined petitioner and directed that he be transferred to Raleigh for orthopedic consultation at Central Prison Hospital, the acute-care medical facility operated by the State for its more than 17,500 inmates. Central Prison Hospital has one full-time staff physician, and obtains additional medical assistance under “Contracts for Professional Services” between the State and area physicians.

Respondent, Samuel Atkins, M. D., a private physician, provided orthopedic services to inmates pursuant to one such contract. Under it, Doctor Atkins was paid approximately $52,000 annually to operate two “clinics” each week at Central Prison Hospital, with additional amounts for surgery. Over a period of several months, he treated West’s injury by placing his leg in a series of casts. West alleges that although the doctor acknowledged that surgery would be necessary, he refused to schedule it, and that he eventually discharged West while his ankle was still swollen and painful, and his movement still impeded. Because West was a prisoner in “close custody,” he was not free to employ or elect to see a different physician of his own choosing.

Pursuant to 42 U. S. C. § 1983, West, proceeding pro se, commenced this action against Doctor Atkins in the United States District Court for the Eastern District of North Carolina for violation of his Eighth Amendment right to be free from cruel and unusual punishment. West alleged that Atkins was deliberately indifferent to his serious medical needs, by failing to provide adequate treatment.

Relying on a decision of its controlling court in Calvert v. Sharp, 748 F. 2d 861 (CA4 1984), cert. denied, 471 U. S. 1132 (1985), the District Court granted Doctor Atkins’ motion for summary judgment. In Calvert, the Fourth Circuit held that a private orthopedic specialist, employed by a nonprofit professional corporation which provided services under contract to the inmates at the Maryland House of Corrections and the Maryland Penitentiary, did not act “under color of state law,” a jurisdictional requisite for a § 1983 action. Because Doctor Atkins was a “contract physician,” the District Court concluded that he, too, was not acting under color of state law when he treated West’s injury. App. 37.

A panel of the United States Court of Appeals for the Fourth Circuit vacated the District Court’s judgment. 799 F. 2d 923 (1986). Rather than considering if Calvert could be distinguished, the panel remanded the case to the District Court for an assessment whether the record permitted a finding of deliberate indifference to a serious medical need, a showing necessary for West ultimately to prevail on his Eighth Amendment claim. See Estelle v. Gamble, 429 U. S. 97, 104 (1976).

On en banc rehearing, however, a divided Court of Appeals affirmed the District Court’s dismissal of West’s complaint. 815 F. 2d 993 (1987). In declining to overrule its decision in Calvert, the majority concluded:

“Thus the clear and practicable principle enunciated by the Supreme Court [in Polk County v. [Dodson,] 454 U. S. 312 (1981)], and followed in Calvert, is that a professional, when acting within the bounds of traditional professional discretion and judgment, does not act under color of state law, even where, as in Dodson, the professional is a full-time employee of the state. Where the professional exercises custodial or supervisory authority, which is to say that he is not acting in his professional capacity, then a § 1983 claim can be established, provided the requisite nexus to the state is proved.” 815 F. 2d, at 995 (footnote omitted).

The Court of Appeals acknowledged that this rule limits “the range of professionals subject to an Estelle action.” Ibid.

The dissent in the Court of Appeals offered three grounds for holding that service rendered by a prison doctor— whether a permanent member of a prison medical staff, or under limited contract with the prison — constitutes action under color of state law for purposes of § 1983. First, the dissent concluded that prison doctors are as much “state actors” as are other prison employees, finding no significant difference between Doctor Atkins and the physician-employees assumed to be state actors in Estelle, and in O’Connor v. Donaldson, 422 U. S. 563 (1975). See 815 F. 2d, at 997-998. Second, the dissent concluded that the “public function” rationale applied because, in the prison context, medical care is within “the exclusive prerogative of the State,” in that the State is obligated to provide medical services for its inmates and has complete control over the circumstances and sources of a prisoner’s medical treatment. Id., at 998-999, citing Blum v. Yaretsky, 457 U. S. 991, 1011 (1982). Finally, the dissent reasoned that the integral role the prison physician plays within the prison medical system qualifies his actions as under color of state law. 815 F. 2d, at 999, citing United States v. Price, 383 U. S. 787, 794 (1966) (“[W]illful participant in joint activity with the State or its agents” may be liable under §1983); Lugar v. Edmondson Oil Co., 457 U. S. 922, 931-932 (1982); and Tower v. Glover, 467 U. S. 914 (1984).

The Fourth Circuit’s ruling conflicts with decisions of the Court of Appeals for the Eleventh Circuit, Ancata v. Prison Health Services, Inc., 769 F. 2d 700 (1985), and Ort v. Pinchback, 786 F. 2d 1105 (1986), which are to the effect that a physician who contracts with the State to provide medical care to prison inmates, even if employed by a private entity, acts under color of state law for purposes of §1983. We granted certiorari to resolve the conflict. 484 U. S. 912 (1987).

II

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. Parratt v. Taylor, 451 U. S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U. S. 327, 330-331 (1986)); Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 155 (1978). Petitioner West sought to fulfill the first requirement by alleging a violation of his rights secured by the Eighth Amendment under Estelle v. Gamble, 429 U. S. 97 (1976). There the Court held that deliberate indifference to a prisoner’s serious medical needs, whether by a prison doctor or a prison guard, is prohibited by the Eighth Amendment. Id., at 104-105. The adequacy of West’s allegation and the sufficiency of his showing on this element of his § 1983 cause of action are not contested here. The only issue before us is whether petitioner has established the second essential element — that respondent acted under color of state law in treating West’s injury.

A

The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” United States v. Classic, 313 U. S. 299, 326 (1941). Accord, Monroe v. Pape, 365 U. S. 167, 187 (1961) (adopting Classic standard for purposes of § 1983) (overruled in part on other grounds, Monell v. New York City Dept. of Social Services, 436 U. S. 658, 695-701 (1978)); Polk County v. Dodson, 454 U. S. 312, 317-318 (1981); id., at 329 (dissenting opinion). In Lugar v. Edmondson Oil Co., supra, the Court made clear that if a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, “that conduct [is] also action under color of state law and will support a suit under § 1983.” Id., at 935. Accord, Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982); United States v. Price, 383 U. S., at 794, n. 7. In such circumstances, the defendant’s alleged infringement of the plaintiff’s federal rights is “fairly attributable to the State.” Lugar, 457 U. S., at 937.

To constitute state action, “the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Ibid. “[S]tate employment is generally sufficient to render the defendant a state actor.” Id., at 936, n. 18; see id., at 937. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. See Monroe v. Pape, 365 U. S., at 172. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. See, e. g., Parratt v. Taylor, 451 U. S., at 535-536; Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970). See also Flagg Bros., Inc. v. Brooks, 436 U. S., at 157, n. 5.

Indeed, Polk County v. Dodson, relied upon by the Court of Appeals, is the only case in which this Court has determined that a person who is employed by the State and who is sued under § 1983 for abusing his position in the performance of his assigned tasks was not acting under color of state law. The Court held that “a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” 454 U. S., at 325. In this capacity, the Court noted, a public defender differs from the typical government employee and state actor. While performing his duties, the public defender retains all of the essential attributes of a private attorney, including, most importantly, his “professional independence,” which the State is constitutionally obliged to respect. Id., at 321-322. A criminal lawyer’s professional and ethical obligations require him to act in a role independent of and in opposition to the State. Id., at 318-319, 320. The Court accordingly concluded that when representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for purposes of § 1983 because he “is not acting on behalf of the State; he is the State’s adversary.” Id., at 323, n. 13. See also Lugar v. Edmondson Oil Co., 457 U. S., at 936, n. 18.

B

We disagree with the Court of Appeals and respondent that Polk County dictates a conclusion that respondent did not act under color of state law in providing medical treatment to petitioner. In contrast to the public defender, Doctor Atkins’ professional and ethical obligation to make independent medical judgments did not set him in conflict with the State and other prison authorities. Indeed, his relationship with other prison authorities was cooperative. “Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve.” Polk County, 454 U. S., at 320. The Manual governing prison health care in North Carolina’s institutions, which Doctor Atkins was required to observe, declares: “The provision of health care is a joint effort of correctional administrators and health care providers, and can be achieved only through mutual trust and cooperation.” Similarly, the American Medical Association Standards for Health Services in Prisons (1979) provide that medical personnel and other prison officials are to act in “close cooperation and coordination” in a “joint effort.” Preface, at i; Standard 102, and Discussion. Doctor Atkins’ professional obligations certainly did not oblige him to function as “the State’s adversary.” Polk County, 454 U. S., at 323, n. 13. We thus find the proffered analogy between respondent and the public defender in Polk County unpersuasive.

Of course, the Court of Appeals did not perceive the adversarial role the defense lawyer plays in our criminal justice system as the decisive factor in the Polk County decision. The court, instead, appears to have misread Polk County as establishing the general principle that professionals do not act under color of state law when they act in their professional capacities. The court considered a professional not to be subject to suit under § 1983 unless he was exercising “custodial or supervisory” authority. 815 F. 2d, at 995. To the extent this Court in Polk County relied on the fact that the public defender is a “professional” in concluding that he was not engaged in state action, the case turned on the particular professional obligation of the criminal defense attorney to be an adversary of the State, not on the independence and integrity generally applicable to professionals as a class. Indeed, the Court of Appeals’ reading would be inconsistent with cases, decided before and since Polk County, in which this Court either has identified professionals as state actors, see, e. g., Tower v. Glover, 467 U. S. 914 (1984) (state public defenders), or has assumed that professionals are state actors in §1983 suits, see, e. g., Estelle v. Gamble, 429 U. S. 97 (1976) (medical director of state prison who was also the treating physician). See also Youngberg v. Romeo, 457 U. S. 307, 322-323, and n. 30 (1982) (establishing standards to determine whether decisions of “professional” regarding treatment of involuntarily committed can create liability for a due process violation). Defendants are not removed from the purview of § 1983 simply because they are professionals acting in accordance with professional discretion and judgment.

The Court of Appeals’ approach to determining who is subject to suit under §1983, wholeheartedly embraced by respondent, cannot be reconciled with this Court’s decision in Estelle, which demonstrates that custodial and supervisory functions are irrelevant to an assessment whether the particular action challenged was performed under color of state law. In Estelle, the inmate’s Eighth Amendment claim was brought against the physician-employee, Dr. Gray, in his capacity both as treating physician and as medical director of the state prison system. See 429 U. S., at 107. Gray was sued, however, solely on the basis of allegedly substandard medical treatment given to the plaintiff; his supervisory and custodial functions were not at issue. The Court’s opinion did not suggest that Gray had not acted under color of state law in treating the inmate. To the contrary, the inference to be drawn from Estelle is that the medical treatment of prison inmates by prison physicians is state action. The Court explicitly held that “indifference . . . manifested by prison doctors in their response to the prisoner’s needs . . . states a cause of action under § 1983.” Id., at 104-105; see id., at 104, n. 10 (citing with approval Courts of Appeals’ decisions holding prison doctors liable for Eighth Amendment claims brought under § 1983 without mention of supervisory and custodial duties). The Court of Appeals’ rationale would sharply undermine this holding.

C

We now make explicit what was implicit in our holding in Estelle: Respondent, as a physician employed by North Carolina to provide medical services to state prison inmates, acted under color of state law for purposes of § 1983 when undertaking his duties in treating petitioner’s injury. Such conduct is fairly attributable to the State.

The Court recognized in Estelle: “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” 429 U. S., at 103. In light of this, the Court held that the State has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated. Id., at 104. See also Spicer v. Williamson, 191 N. C. 487, 490, 132 S. E. 291, 293 (1926) (common law requires North Carolina to provide medical care to its prison inmates), cited in Estelle, 429 U. S., at 104, n. 9. North Carolina employs physicians, such as respondent, and defers to their professional judgment, in order to fulfill this obligation. By virtue of this relationship, effected by state law, Doctor Atkins is authorized and obliged to treat prison inmates, such as West. He does so “clothed with the authority of state law.” United States v. Classic, 313 U. S., at 326. He is “a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U. S., at 937. It is only those physicians authorized by the State to whom the inmate may turn. Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West’s serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care.

The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other “state employees” does not alter the analysis. It is the physician’s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract.

Nor does the fact that Doctor Atkins’ employment contract did not require him to work exclusively for the prison make him any less a state actor than if he performed those duties as a full-time, permanent member of the state prison medical staff. It is the physician’s function while working for the State, not the amount of time he spends in performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law. In the State’s employ, respondent worked as a physician at the prison hospital fully vested with state authority to fulfill essential aspects of the duty, placed on the State by the Eighth Amendment and state law, to provide essential medical care to those the State had incarcerated. Doctor Atkins must be considered to be a state actor.

III

For the reasons stated above, we conclude that respondent’s delivery of medical treatment to West was state action fairly attributable to the State, and that respondent therefore acted under color of state law for purposes of §1983. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in part and concurring in the judgment.

I agree with the opinion of the Court that respondent acted under color of state law for purposes of § 1988. I do not believe that a doctor who lacks supervisory or other penological duties can inflict “punishment” within the meaning of that term in the Eighth Amendment. Cf. Johnson v. Glick, 481 F. 2d 1028, 1031-1032 (CA2) (Friendly, J.), cert. denied sub nom. John v. Johnson, 414 U. S. 1033 (1973). I am also of the view, however, that a physician who acts on behalf of the State to provide needed medical attention to a person involuntarily in state custody (in prison or elsewhere) and prevented from otherwise obtaining it, and who causes physical harm to such a person by deliberate indifference, violates the Fourteenth Amendment’s protection against the deprivation of liberty without due process. See Youngberg v. Romeo, 457 U. S. 307, 315, 324 (1982) (dictum); see generally Daniels v. Williams, 474 U. S. 327, 331 (1986); Ingraham v. Wright, 430 U. S. 651, 672-674, and n. 41 (1977); Rochin v. California, 342 U. S. 165, 169-174 (1952); Johnson, supra, at 1032-1033. I note that petitioner’s pro se complaint merely claimed violation of his rights, and it is the courts that have specified which constitutional provision confers those rights.

       Doctor Atkins’ contractual duties included the following: to provide two orthopedic clinics per week; to see all orthopedic and neurological referrals; to perform orthopedic surgery as scheduled; to conduct rounds as often as necessary for his surgical and other orthopedic patients; to coordinate with the Physical Therapy Department; to request the assistance of neurosurgical consultants on spinal surgical cases; and to provide emergency on-call orthopedic services 24 hours per day. His contract required him to furnish two days of professional service each week in fulfillment of these duties. App. 24-25. Atkins also had supervisory authority over Department of Correction nurses and physician’s assistants, who were subject to his orders. Id., at 28.
      Apparently, respondent maintained a private practice apart from his work at the prison. Atkins’ submissions on his motion for summary judgment, however, do not reflect the extent of his nonprison practice or the extent to which he depended upon the prison work for his livelihood.

       North Carolina law bars all but minimum-security prisoners from exercising an option to go outside the prison and obtain medical care of their choice at their own expense or funded by family resources or private health insurance. See North Carolina Division of Prisons Health Care Procedure Manual §§ 710.1-710.2 (1980), App. to Brief for Petitioner 15a-16a (promulgated pursuant to 5 N. C. Admin. Code §02E.0203 (1987) and N. C. Gen. Stat. §§ 148-11, 148-19 (1987)). Petitioner is not a minimum-security prisoner.

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

         Doctor Atkins is represented here by the Attorney General of North Carolina. By statute, the State provides for representation and protection from liability for any person who provides medical services to inmates and who is sued pursuant to § 1983. See N. C. Gen. Stat. § 143-300.7 (1987). The State has informed its contract physicians, however, that it will not provide them with representation and indemnification in malpractice actions.

       West also named as defendants James B. Hunt, then Governor of the State of North Carolina, and Rae McNamara, Director of the Division of Prisons of the North Carolina Department of Correction. The District Court’s dismissal of West’s claims against Hunt and McNamara was affirmed on appeal. See 815 F. 2d 993, 996 (CA4 1987). West has not pursued his actions against those defendants before this Court.

       In addition, the Court of Appeals rejected petitioner’s contention that the provision of medical services to inmates is an “exclusive state function.” The court explained: “Decisions made in the day-to-day rendering of medical services by a physician are not the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public.” Id., at 996, n. 2, citing Blum v. Yaretsky, 457 U. S. 991, 1012 (1982).

       In their resolution of § 1983 eases, other Courts of Appeals implicitly have concluded that prison physicians act under color of state law when treating incarcerated persons. See, e. g., Miranda v. Munoz, 770 F. 2d 255 (CA1 1985) (upholding jury verdict in § 1983 action against physician under contract with State to work eight hours per week at jail); Norris v. Frame, 585 F. 2d 1183 (CA3 1978) (pretrial detainee’s § 1983 claim against, among others, a prison physician); Murrell v. Bennett, 615 F. 2d 306 (CA5 1980) (reinstating inmate’s § 1983 action against state prison physician); Byrd v. Wilson, 701 F. 2d 592 (CA6 1983) (reinstating § 1983 action against medical staff, including two physicians, at state penitentiary); Duncan v. Duckworth, 644 F. 2d 653 (CA7 1981) (allowing § 1983 action against prison hospital administrator to proceed until identity of responsible members of medical staff was determined); Kelsey v. Ewing, 652 F. 2d 4 (CA8 1981) (upholding § 1983 action against contract physician at state prison).

       In his brief and at oral argument, respondent insisted that West had failed to state a cause of action under Estelle. He maintains that petitioner’s allegations “amount to no more than a claim of medical malpractice” or “a negligence based claim,” which, under Estelle, 429 U. S., 105-106, are not sufficient to make out a claim of cruel and unusual punishment. No court has undertaken the necessary factfinding, let aldhe-passed upon this Eighth Amendment issue. We decline to address it here in the first instance, particularly in light of settled doctrine that we avoid constitutional questions whenever possible. See Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944); Jean v. Nelson, 472 U. S. 846, 854 (1985).

       North Carolina Division of Prisons Health Care Procedure Manual § 100.5. See App. to Brief for Petitioner 8a.

       We do not suggest that this factor is entirely irrelevant to the state-action inquiry. Where the issue is whether a private party is engaged in activity that constitutes state action, it may be relevant that the challenged activity turned on judgments controlled by professional standards, where those standards are not established by the State. The Court has held that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. ” Blum v. Yaretsky, 457 U. S., at 1004 (decisions of physicians and administrators of privately owned and operated nursing home to transfer Medicaid patients not state action); Rendell-Baker v. Kohn, 457 U. S. 830, 840 (1982) (discharge decisions of privately owned and operated school not state action). In both Blum and Rendell-Baker, the fact that the private entities received state funding and were subject to state regulation did not, without more, convert their conduct into state action. See Blum v. Yaretsky, 457 U. S., at 1004; Rendell-Baker v. Kohn, 457 U. S., at 840-843. The Court suggested that the private party’s challenged decisions could satisfy the state-action requirement if they were made on the basis of some rule of decision for which the State is responsible. The Court found, however, that the decisions were based on independent professional judgments and were not subject to state direction. Thus, the requisite “nexus” to the State was absent;
      This determination cannot be transformed into the proposition that no person acts under color of state law where he is exercising independent. professional judgment. “[T]he exercise of . . . independent professional judgment,” is not, as the Court of Appeals suggested, “the primary test.” 815 F. 2d, at 995, n. 1. And Blum and Rendell-Baker provide no support for respondent’s argument that a physician, employed by the State to fulfill the State’s constitutional obligations, does not act under color of state law merely because he renders medical care in accordance with professional obligations.

      The Court of Appeals, in our view, misunderstood this Court’s Polk County discussion of O’Connor v. Donaldson, 422 U. S. 563 (1975), and Estelle v. Gamble, 429 U. S. 97 (1976). We observed that O’Connor involved claims against a psychiatrist who served as the superintendent at a state mental hospital, and that Estelle involved a physician who was the medical director of the Texas Department of Corrections and the chief medical officer of a prison hospital. Polk County, 454 U. S., at 320. The Court made these observations, however, in the context of contrasting the role of the public defender with that of the physicians in response to the argument that state employment alone is sufficient to fulfill the under-color-of-state-law requirement. See id., at 319-320. We agree with the dissent in the Court of Appeals that the Court discussed these facts “in order to highlight the cooperative relationship between the doctors and the state and thus the absence of an adversarial relationship akin to that existing between public defenders and the state.” 815 F. 2d, at 997-998. See Polk County, 454 U. S., at 320 (“Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve”). Nothing in the Court’s opinion stands for the proposition that a prison physician must be acting in a custodial or supervisory function in order to act under color of state law.

       Furthermore, it would greatly diminish the meaning of a prisoner’s Eighth Amendment right, since few of those with supervisory and custodial functions are likely to be involved directly in patient care. And § 1983 liability is not available under the doctrine of respondeat superior. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690-695 (1978).

       By statute, the North Carolina Department of Correction is required to provide health services to its prisoners. N. C. Gen. Stat. § 148-19 (1987). In compliance with the statute, state regulations charge the Director, Division of Prisons, with the responsibility of providing each prisoner the services necessary to maintain basic health. 5 N. C. Admin. Code §02E.0201 (1987). State regulations provide that the delivery of health services at each facility is the responsibility of the prison administrator, who must designate a specific health authority “who is charged with the responsibility to provide health services to that facility.” § 02E.0202. Pursuant to these provisions, Doctor Atkins was employed by the Director, Division of Prisons, and was paid by the State, to provide orthopedic services to the State’s prisoners.

       As the dissent in the Court of Appeals explained, if this were the basis for delimiting § 1983 liability, “the state will be free to contract out all services which it is constitutionally obligated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.” 815 F. 2d, at 998.

       Contrary to respondent’s intimations, the fact that a state employee’s role parallels one in the private sector is not, by itself, reason to conclude that the former is not acting under color of state law in performing his duties. “If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity _” Griffin v. Maryland, 378 U. S. 130, 135 (1964).
      Moreover, although the provision of medical services is a function traditionally performed by private individuals, the context in which respondent performs these services for the State (quite apart from the source of remuneration) distinguishes the relationship between respondent and West from the ordinary physician-patient relationship. Cf. Polk County, 454 U. S., at 318. Respondent carried out his duties at the state prison within the prison hospital. That correctional setting, specifically designed to be removed from the community, inevitably affects the exercise of professional judgment. Unlike the situation confronting free patients, the non-medical functions of prison life inevitably influence the nature, timing, and form of medical care provided to inmates' such as West. By regulation, matters of medical health involving clinical judgment are the prison physician’s “sole province.” 5 N. C. Admin. Code §02E.0204 (1987). These same regulations, however, require respondent to provide medical services “in keeping with the security regulations of the facility.” Ibid. The record is undeveloped as to the specific limitations placed on respondent by the state prison system. But studies of prison health care, and simple common sense, suggest that his delivery of medical care was not unaffected by the fact that the State controlled the circumstances and sources of a prisoner’s medical treatment. For one thing, the State’s financial resources are limited. Further, prisons and jails are inherently coercive institutions that for security reasons must exercise nearly total control over their residents’ lives and the activities within their confines; general schedules strictly regulate work, exercise, and diet. These factors can, and most often do, have a significant impact on the provision of medical services in prisons. See generally Neisser, Is There a Doctor in the Joint? The Search for Constitutional Standards for Prison Health Care, 63 Va. L. Rev. 921, 936-946 (1977) (describing the institutional effects on the delivery of health care services in prisons); M. Wishart & N. Dubler, Health Care in Prisons, Jails and Detention Centers: Some Legal and Ethical Dilemmas 4 (1983) (“[T]he delivery of medical services in the nation’s prisons and jails is beset with problems and conflicts which are virtually unknown to other health care services”).


author: Justice Kennedy Chief Justice Rehnquist,

text:
    SUPREME COURT OF VIRGINIA et al. v. FRIEDMAN
    No. 87-399.
    Argued March 21, 1988
    Decided June 20, 1988

      Kennedy, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 70.

      Gregory E. Lucyk, Assistant Attorney General of Virginia, argued the cause for appellants. With him on the briefs were Mary Sue Terry, Attorney General, Gail Starling Marshall, Deputy Attorney General, and William H. Hauser, Senior Assistant Attorney General.

      Cornish F. Hitchcock argued the cause for appellee. With him on the brief were Alan B. Morrison' and John J. McLaughlin.

      A brief of amici curiae urging reversal was filed for the State of Wyoming et al. by Joseph B. Meyer, Attorney General, and Mary B. Guthrie, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Neil F. Hartigan of Illinois, Thomas J. Miller of Iowa, and Anthony J. Celebrezze, Jr., of Ohio.
      Briefs of amici curiae urging affirmance were filed for the American Corporate Counsel Association by Lawrence A. Salibra II; and for the New York State Bar Association by Maryann Saccomando Freedman, Monroe H. Freedman, and Ronald J. Levine.

   Justice Kennedy

Qualified lawyers admitted to practice in other States may be admitted to the Virginia Bar “on motion,” that is, without taking the bar examination which Virginia otherwise requires. The State conditions such admission on a showing, among other matters, that the applicant is a permanent resident of Virginia. The question for decision is whether this residency requirement violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2, cl. 1. We hold that it does.

I

Myrna E. Friedman was admitted to the Illinois Bar by examination in 1977 and to the District of Columbia Bar by reciprocity in 1980. From 1977 to 1981, she was employed by the Department of the Navy in Arlington, Virginia, as a civilian attorney, and from 1982 until 1986, she was an attorr ney in private practice in Washington, D. C. In January 1986, she became associate general counsel for ERC International, Inc., a Delaware corporation. Friedman practices and maintains her offices at the company’s principal place of business in Vienna, Virginia. Her duties at ERC International include drafting contracts and advising her employer and its subsidiaries on matters of Virginia law.

From 1977 to early 1986, Friedman lived in Virginia. In February 1986, however, she married and moved to her husband’s home in Cheverly, Maryland. In June 1986, Friedman applied for admission to the Virginia Bar on motion.

The applicable rule, promulgated by the Supreme Court of Virginia pursuant to statute, is Rule 1A:1. The Rule permits admission on motion of attorneys who are licensed to practice in another jurisdiction, provided the other jurisdiction admits Virginia attorneys without examination. The applicant must have been licensed for at least five years and the Virginia Supreme Court must determine that the applicant:

“(a) Is a proper person to practice law.
“(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination.
“(c) Has become a permanent resident of the Commonwealth.
“(d) Intends to practice full time as a member of the Virginia bar.”

In a letter accompanying her application, Friedman alerted the Clerk of the Virginia Supreme Court to her change of residence, but argued that her application should nevertheless be granted. Friedman gave assurance that she would be engaged full-time in the practice of law in Virginia, that she would be available for service of process and court appearances, and that she would keep informed of local rules. She also asserted that “there appears to be no reason to discriminate against my petition as a nonresident for admission to the Bar on motion,” that her circumstances fit within the purview of this Court’s decision in Supreme Court of New Hampshire v. Piper, 470 U. S. 274 (1985), and that accordingly she was entitled to admission under the Privileges and Immunities Clause of the Constitution, Art. IV, §2, cl. 1. See App. 34-35.

The Clerk wrote Friedman that her request had been denied. He explained that because Friedman was no longer a permanent resident of the Commonwealth of Virginia, she was not eligible for admission to the Virginia Bar pursuant to Rule 1A:1. He added that the court had concluded that our decision in Piper, which invalidated a residency requirement imposed on lawyers who had passed a State’s bar examination, was “not applicable” to the “discretionary requirement in Rule 1A:1 of residence as a condition of admission by reciprocity.” App. 51-52.

Friedman then commenced this action, against the Supreme Court of Virginia and its Clerk, in the United States District Court for the Eastern District of Virginia. She alleged that the residency requirement of Rule 1A:1 violated the Privileges and Immunities Clause. The District Court entered summary judgment in Friedman’s favor, holding that the requirement of residency for admission without examination violates the Clause.

The Court of Appeals for the Fourth Circuit unanimously affirmed. 822 F. 2d 423 (1987). The court first rejected appellants’ threshold contention that the Privileges and Immunities Clause was not implicated by the residency requirement of Rule 1A:1 because the Rule did not absolutely prohibit the practice of law in Virginia by nonresidents. Id., at 427-428. Turning to the justifications offered for the Rule, the court rejected, as foreclosed by Piper, the theory that the different treatment accorded to nonresidents could be justified by the State’s interest in enhancing the quality of legal practitioners. The court was also unpersuaded by appellant’s contention that the residency requirement promoted compliance with the Rule’s full-time practice requirement, an argument the court characterized as an unsupported assertion that “residents are more likely to honor their commitments to practice full-time in Virginia than are nonresidents.” Id., at 429. Thus, the court concluded that there was no substantial reason for the Rule’s discrimination against nonresidents, and that the discrimination did not bear a substantial relation to the objectives proffered by appellants.

The Supreme Court of Virginia and its Clerk filed a timely notice of appeal. We noted probable jurisdiction, 484 U. S. 923 (1987), and we now affirm.

I — I 1 — 4

Article IV, §2, cl. 1, of the Constitution provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The provision was designed “to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.” Paul v. Virginia, 8 Wall. 168, 180 (1869). See also Toomer v. Witsell, 334 U. S. 385, 395 (1948) (the Privileges and Immunities Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy”). The Clause “thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment.” Austin v. New Hampshire, 420 U. S. 656, 660 (1975).

While the Privileges and Immunities Clause cites the term “Citizens,” for analytic purposes citizenship and residency are essentially interchangeable. See United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U. S. 208, 216 (1984). When examining claims that a citizenship or residency classification offends privileges and immunities protections, we undertake a two-step inquiry. First, the activity in question must be “ ‘sufficiently basic to the livelihood of the Nation’ ... as to fall within the purview of the Privileges and Immunities Clause . . . .” Id., at 221-222, quoting Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 388 (1978). For it is “‘[ojnly with respect to those “privileges” and “immunities” bearing on the vitality of the Nation as a single entity’ that a State must accord residents and nonresidents equal treatment.” Supreme Court of New Hampshire v. Piper, 470 U. S., at 279, quoting Baldwin, supra, at 383. Second, if the challenged restriction deprives nonresidents of a protected privilege, we will invalidate it only if we conclude that the restriction is not closely related to the advancement of a substantial state interest. Piper, supra, at 284. Appellants assert that the residency requirement offends neither part of this test. We disagree.

A

Appellants concede, as they must, that our decision in Piper establishes that a nonresident who takes and passes an examination prescribed by the State, and who otherwise is qualified for the practice of law, has an interest in practicing law that is protected by the Privileges and Immunities Clause. Appellants contend, however, that the discretionary admission provided for by Rule 1A:1 is not a privilege protected by the Clause for two reasons. First, appellants argue that the bar examination “serves as an adequate, alternative means of gaining admission to the bar. ” Brief for Appellants 20. In appellants’ view, “[s]o long as any applicant may gain admission to a State’s bar, without regard to residence, by passing the bar examination,” id., at 21, the State cannot be said to have discriminated against nonresidents “as a matter of fundamental concern.” Id., at 19. Second, appellants argue that the right to admission on motion is not within the purview of the Clause because, without offense to the Constitution, the State could require all bar applicants to pass an examination. Neither argument is persuasive.

We cannot accept appellants’ first theory because it is quite inconsistent with our precedents. We reaffirmed in Piper the well-settled principle that “‘one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.’” Piper, supra, at 280, quoting Toomer v. Witsell, supra, at 396. See also United Building & Construction Trades Council, supra, at 219 (“Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause”). After reviewing our precedents, we explicitly held that the practice of law, like other occupations considered in those cases, is sufficiently basic to the national economy to be deemed a privilege protected by the Clause. See Piper, supra, at 280-281. The clear import of Piper is that the Clause is implicated whenever, as is the case here, a State does not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents.

Nothing in our precedents, moreover, supports the contention that the Privileges and Immunities Clause does not reach a State’s discrimination against nonresidents when such discrimination does not result in their total exclusion from the State. In Ward v. Maryland, 12 Wall. 418 (1871), for example, the Court invalidated a statute under which residents paid an annual fee of $12 to $150 for a license to trade foreign goods, while nonresidents were required to pay $300. Similarly, in Toomer, supra, the Court held that nonresident fishermen could not be required to pay a license fee 100 times the fee charged to residents. In Hicklin v. Orbeck, 437 U. S. 518 (1978), the Court invalidated a statute requiring that residents be hired in preference to nonresidents for all positions related to the development of the State’s oil and gas resources. Indeed, as the Court of Appeals correctly noted, the New Hampshire rule struck down in Piper did not result in the total exclusion of nonresidents from the practice of law in that State. 822 F. 2d, at 427 (citing Piper, supra, at 277, n. 2).

Further, we find appellants’ second theory — that Virginia could constitutionally require that all applicants to its bar take and pass an examination — quite irrelevant to the question whether the Clause is applicable in the circumstances of this case. A State’s abstract authority to require from resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held to shield the discriminatory distinction from the reach of the Privileges and Immunities Clause. Thus, the applicability of the Clause to the present case no more turns on the legality vel non of an examination requirement than it turned on the inherent reasonableness of the fees charged to nonresidents in Toomer and Ward. The issue instead is whether the State has burdened the right to practice law, a privilege protected by the Privileges and Immunities Clause, by discriminating among otherwise equally qualified applicants solely on the basis of citizenship or residency. We conclude it has.

B

Our conclusion that the residence requirement burdens a privilege protected by the Privileges and Immunities Clause does not conclude the matter, of course; for we repeatedly have recognized that the Clause, like other constitutional provisions, is not an absolute. See, e. g., Piper, supra, at 284; United Building & Construction Trades Council, 465 U. S., at 222; Toomer, 334 U. S., at 396. The Clause does not preclude disparity in treatment where substantial reasons exist for the discrimination and the degree of discrimination bears a close relation to such reasons. See United Building & Construction Trades Council, supra, at 222. In deciding whether the degree of discrimination bears a sufficiently close relation to the reasons proffered by the State, the Court has considered whether, within the full panoply of legislative choices otherwise available to the State, there exist alternative means of furthering the State’s purpose without implicating constitutional concerns. See Piper, supra, at 284.

Appellants offer two principal justifications for the Rule’s requirement that applicants seeking admission on motion reside within the Commonwealth of Virginia. First, they contend that the residence requirement assures, in tandem with the full-time practice requirement, that attorneys admitted on motion will have the same commitment to service and familiarity with Virginia law that is possessed by applicants securing admission upon examination. Attorneys admitted on motion, appellants argue, have “no personal investment” in the jurisdiction; consequently, they “are entitled to no presumption that they will willingly and actively participate in bar activities and obligations, or fulfill their public service responsibilities to the State’s client community.” Brief for Appellants 26-27. Second, appellants argue that the residency requirement facilitates enforcement of the full-time practice requirement of Rule 1A:1. We find each of these justifications insufficient to meet the State’s burden of showing that the discrimination is warranted by a substantial state objective and closely drawn to its achievement.

We acknowledge that a bar examination is one method of assuring that the admitted attorney has a stake in his or her professional licensure and a concomitant interest in the integrity and standards of the bar. A bar examination, as we know judicially and from our own experience, is not a casual or lighthearted exercise. The question, however, is whether lawyers who are admitted in other States and seek admission in Virginia are less likely to respect the bar and further its interests solely because they are nonresidents. We cannot say this is the case. While Pvper relied on an examination requirement as an indicium of the nonresident’s commitment to the bar and to the State’s legal profession, see Piper, 470 U. S., at 285, it does not follow that when the State waives the examination it may make a distinction between residents and nonresidents.

Friedman’s case proves the point. She earns her living working as an attorney in Virginia, and it is of scant relevance that her residence is located in the neighboring State of Maryland. It is indisputable that she has a substantial stake in the practice of law in Virginia. Indeed, despite appellants’ suggestion at oral argument that Friedman’s case is “atypical,” Tr. of Oral Arg. 51, the same will likely be true of all nonresident attorneys who are admitted on motion to the Virginia Bar, in light of the State’s requirement that attorneys so admitted show their intention to maintain an office and a regular practice in the State. See Application of Brown, 213 Va. 282, 286, n. 3, 191 S. E. 2d 812, 815, n. 3 (1972) (interpreting full-time practice requirement of Rule 1A:1). This requirement goes a long way toward ensuring that such attorneys will have an interest in the practice of law in Virginia that is at least comparable to the interest we ascribed in Piper to applicants admitted upon examination. Accordingly, we see no reason to assume that nonresident attorneys who, like Friedman, seek admission to the Virginia bar on motion will lack adequate incentives to remain abreast of changes in the law or to fulfill their civic duties.

Further, to the extent that the State is justifiably concerned with ensuring that its attorneys keep abreast of legal developments, it can protect these interests through other equally or more effective means that do not themselves infringe constitutional protections. While this Court is not well positioned to dictate specific legislative choices to the State, it is sufficient to note that such alternatives exist and that the State, in the exercise of its legislative prerogatives, is free to implement them. The Supreme Court of Virginia could, for example, require mandatory attendance at periodic continuing legal education courses. See Piper, supra, at 285, n. 19. The same is true with respect to the State’s interest that the nonresident bar member does his or her share of volunteer and pro bono work. A “nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work.” Piper, supra, at 287 (footnote omitted).

We also reject appellants’ attempt to justify the residency restriction as a necessary aid to the enforcement of the full-time practice requirement of Rule 1A:1. Virginia already requires, pursuant to the full-time practice restriction of Rule 1A:1, that attorneys admitted on motion maintain an office for the practice of law in Virginia. As the Court of Appeals noted, the requirement that applicants maintain an office in Virginia facilitates compliance with the full-time practice requirement in nearly the identical manner that the residency restriction does, rendering the latter restriction largely redundant. 822 F. 2d, at 429. The office requirement furnishes an alternative to the residency requirement that is not only less restrictive, but also is fully adequate to protect whatever interest the State might have in the full-time practice restriction.

Ill

We hold that Virginia’s residency requirement for admission to the State’s bar without examination violates the Privileges and Immunities Clause. The nonresident’s interest in practicing law on terms of substantial equality with those enjoyed by residents is a privilege protected by the Clause. A State may not discriminate against nonresidents unless it shows that such discrimination bears a close relation to the achievement of substantial state objectives. Virginia has failed to make this showing. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Scalia joins, dissenting.

Three Terms ago the Court invalidated a New Hampshire Bar rule which denied admission to an applicant who had passed the state bar examination because she was not, and would not become, a resident of the State. Supreme Court of New Hampshire v. Piper, 470 U. S. 274 (1985). In the present case the Court extends the reasoning of Piper to invalidate a Virginia Bar rule allowing admission on motion without examination to qualified applicants, but restricting the privilege to those applicants who have become residents of the State.

For the reasons stated in my dissent in Piper, I also disagree with the Court’s decision in this case. I continue to believe that the Privileges and Immunities Clause of Article IV, § 2, does not require States to ignore residency when admitting lawyers to practice in the way that they must ignore residency when licensing traders in foreign goods, Ward v. Maryland, 12 Wall. 418 (1871), or when licensing commercial shrimp fishermen, Toomer v. Witsell, 334 U. S. 385 (1948).

I think the effect of today’s decision is unfortunate even apart from what I believe is its mistaken view of the Privileges and Immunities Clause. Virginia’s rule allowing admission on motion is an ameliorative provision, recognizing the fact that previous practice in another State may qualify a new resident of Virginia to practice there without the necessity of taking another bar examination. The Court’s ruling penalizes Virginia, which has at least gone part way towards accommodating the present mobility of our population, but of course leaves untouched the rules of those States which allow no reciprocal admission on motion. Virginia may of course retain the privilege of admission on motion without enforcing a residency requirement even after today’s decision, but it might also decide to eliminate admission on motion altogether.

      The District Court did not address Friedman’s claims that the residency requirement of Rule 1A:1 also violates the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals did not pass on these contentions either, and our resolution of Friedman’s claim that the residency requirement violates the Privileges and Immunities Clause makes it unnecessary for us to reach them.

      At present, 28 states do not allow reciprocal admission on motion: Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Idaho, Kansas, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Washington, and Wyoming.