author: Per Curiam. Justice Stevens, Justice Marshall,

text:
    WYRICK, WARDEN, MISSOURI STATE PENITENTIARY v. FIELDS
    No. 82-158.
    Decided November 29, 1982
   Per Curiam.

In this case, the United States Court of Appeals for the Eighth Circuit, over a dissent by Judge Ross, directed that respondent Edward Fields’ petition for a writ of habeas corpus be granted; it did so on the ground that Fields had been convicted with evidence obtained in violation of his Fifth Amendment right to have counsel present at an interrogation. 682 F. 2d 154 (1982). We have concluded that the Court of Appeals’ majority misconstrued this Court’s recent decision in Edwards v. Arizona, 451 U. S. 477 (1981), and imposed a new and unjustified limit on police questioning of a suspect who voluntarily, knowingly, and intelligently waives his right to have counsel present.

I — I

Respondent, a soldier then stationed at Fort Leonard Wood, Mo., was charged with raping an 81-year-old woman on September 21, 1974. After his arrest on September 25, Fields was released on his own recognizance. He retained private defense counsel. After discussing the matter with his counsel and with a military attorney provided him by the Army, Fields requested a polygraph examination. This request was granted and the examination was conducted on December 4 by an agent of the Army’s Criminal Investigation Division (CID) at the fort.

Prior to undergoing the polygraph examination, Fields was given a written consent document, which he signed, informing him of his rights, as required by Miranda v. Arizona, 384 U. S. 436 (1966), and of his rights under the Uniform Code of Military Justice and the Eighth Amendment. In addition, the CID agent read to Fields the following detailed statement:

“Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used against you in a criminal trial. You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he’s reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?” See State v. Fields, 538 S. W. 2d 348, 350, n. 1 (Mo. App. 1976) (emphasis added).

Fields answered: “No.”

At the conclusion of the polygraph examination, which took less than two hours, the CID agent told Fields that there had been some deceit, and asked him if he could explain why his answers were bothering him. Fields then admitted having intercourse with the victim on September 21, but said that she had instigated and consented to it. The agent asked Fields if he wished to discuss the matter further with another CID agent and with the Waynesville, Mo., Chief of Police. Fields said that he did. Then, in his turn, the Police Chief read Fields his Miranda warnings once again before questioning him. Fields repeated that he had had sexual contact with the victim, but that it had been consensual.

Respondent was tried before a jury in the Circuit Court, Pulaski County, Mo. He sought to suppress the testimony of the two CID agents and the Police Chief regarding his “confessions” to voluntary intercourse. The trial court denied the motion, ruling that Fields had waived his rights. The testimony was admitted. Fields was convicted, and was sentenced to 25 years in prison. The Missouri Court of Appeals affirmed the judgment on the ground that Fields “had been repeatedly and amply advised of his rights and . . . voluntarily, knowingly and intelligently waived his rights. ” 538 S. W. 2d, at 350.

Eventually, Fields sought a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, agreeing with the Missouri Court of Appeals that Fields had voluntarily, knowingly, and intelligently waived his right to counsel, denied respondent’s petition. On appeal, however, the Eighth Circuit reversed and remanded the case with directions to order the State either to release Fields or to afford him a new trial. 682 F. 2d, at 162.

II

The Court of Appeals found that the police conduct in question contravened the “clear import” of this Court’s decision in Edwards v. Arizona: “a defendant’s right to have counsel present at custodial interrogations must be zealously guarded.” 682 F. 2d, at 158. In Edwards, this Court had held that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided unless the suspect himself initiates dialogue with the authorities. 451 U. S., at 484-487. The Eighth Circuit recognized that what it called the “per se rule” of Edwards “does not resolve the issue present here.” 682 F. 2d, at 158. Fields and his counsel had agreed that Fields should take the polygraph examination, and Fields appeared voluntarily and stated that he did not want counsel present during the interrogation. Thus, the Court of Appeals conceded that “Fields thereby ‘initiated’ further dialogue with the authorities after his right to counsel had been invoked.” Ibid.

When the suspect has initiated the dialogue, Edwards makes clear that the right to have a lawyer present can be waived:

“If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be ‘interrogation.’ In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” 451 U. S., at 486, n. 9.

Citing this language, the Eighth Circuit acknowledged — as it had to — that “[t]here is no question that Fields waived his right to have counsel present while the [polygraph] examination itself was being conducted.” 682 F. 2d, at 160. Yet that court found that the State had failed to satisfy its burden of proving that “Fields knowingly and intelligently waived his right to have counsel present at the post-test interrogation.” Ibid. The court suggested that had the CID agent merely “paus[ed] to remind the defendant” of his rights, thus providing “meaningfully timed Miranda warnings” (emphasis in original), there would have been no violation. Ibid.

I — I HH h — I

In reaching this result, the Court of Appeals did not examine the “totality of the circumstances,” as Edwards requires. Fields did not merely initiate a “meeting.” By requesting a polygraph examination, he initiated interrogation. That is, Fields waived not only his right to be free of contact with the authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. Fields validly waived his right to have counsel present at “post-test” questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a “knowing and intelligent relinquishment or abandonment” of his rights. 451 U. S., at 482.

The Court of Appeals relied on two facts indicating the need for a new set of warnings: the polygraph examination had been discontinued, and Fields was asked if he could explain the test’s unfavorable results. To require new warnings because of these two facts is unreasonable. Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The CID agent could have informed Fields during the examination that his answers indicated deceit; asking Fields, after the equipment was disconnected, why the answers were bothering him was not any more coercive. The Court of Appeals stated that there was no indication that Fields or his lawyer anticipated that Fields would be asked questions after the examination. But it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result. Moreover, Fields had been informed that he could stop the questioning at any time, and could request at any time that his lawyer join him. Merely disconnecting the polygraph equipment could not remove this knowledge from Fields’ mind.

The only plausible explanation for the court’s holding is that, encouraged by what it regarded as a per se rule established in Edwards, it fashioned another rule of its own: that, notwithstanding a voluntary, knowing, and intelligent waiver of the right to have counsel present at a polygraph examination, and notwithstanding clear evidence that the suspect understood that right and was aware of his power to stop questioning at any time or to speak to an attorney at any time, the police again must advise the suspect of his rights before questioning him at the same interrogation about the results of the polygraph. The court indicated that this rule was needed because it thought that the use of polygraph “results” in questioning, although it does not necessarily render a response involuntary, is inherently coercive. But Courts of Appeals, including a different panel of the Eighth Circuit itself, and state courts, have rejected such a rule. See, e. g., United States v. Little Bear, 583 F. 2d 411, 414 (CA8 1978); Keiper v. Cupp, 509 F. 2d 238, 241-242 (CA9 1975); People v. Barreto, 256 Cal. App. 2d 392, 64 Cal. Rptr. 211 (1967); State v. Henry, 352 So. 2d 643 (La. 1977). Cf. Henry v. Dees, 658 F. 2d 406 (CA5 1981) (waiver not voluntary, knowing, and intelligent in the total circumstances of the case, including mental retardation of suspect). The Eighth Circuit’s rule certainly finds no support in Edwards, which emphasizes that the totality of the circumstances, including the fact that the suspect initiated the questioning, is controlling. Nor is the rule logical; the questions put to Fields after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before. The rule is simply an unjustifiable restriction on reasonable police questioning.

IV

According to the dissent, a substantial question as to the admissibility of Fields’ statements may be raised under the Sixth Amendment. Post, at 52-55. The Sixth Amendment issues raised by the dissent, however, are not before us. The Court of Appeals rested its judgment exclusively on the Fifth Amendment “right to have counsel present during a custodial interrogation” and on its interpretation of this Court’s decision in Edwards. 682 F. 2d, at 158. That interpretation was flawed and the judgment of the Court of Appeals must be reversed. We express no view as to whether any constitutional safeguards not mentioned by the Court of Appeals bear on this case.

Because the Court of Appeals misapplied Edwards and created an unjustified per se rule, the petition for a writ of cer-tiorari is granted and that court’s judgment is reversed and the case is remanded.

It is so ordered.

Justice Stevens,

concurring.

There is much force to what Justice Marshall has written in dissent. I share his concern about the Court’s practice of deciding cases summarily, partly because there is a special risk of error in summary dispositions and partly because the practice represents an unwise use of the Court’s scarce resources. I do not, however, agree with Justice Marshall’s suggestion that we should invite the parties to submit briefs on the merits before a case is summarily decided. I fear that the institution of such a practice would tend to regularize and expand the number of our summary dispositions.

In this case I believe the correct procedure for the Court to have followed would have been simply to deny the petition for a writ of certiorari. No conflict has yet developed on the precise question presented and, as Justice Marshall demonstrates, the Court of Appeals’ conclusion is not without reasoned support. The Court, however, has granted the petition. Although I voted against that action, I am now persuaded that the Court’s resolution of the merits is correct and therefore join its disposition.

Justice Marshall,

dissenting.

A summary reversal is an exceptional disposition. It should be reserved for situations in which the applicable law is settled and stable, the facts are not disputed, and the decision below is clearly in error. Because I do not believe that this is such a case, I dissent.

I

I do not agree that respondent’s consent to the polygraph examination necessarily constituted a waiver of his Fifth Amendment rights with respect to the postexamination interrogation. In my view, this case is not controlled by the footnote in Edwards v. Arizona, 451 U. S. 477, 486, n. 9 (1981), on which the Court relies. That footnote dealt with the hypothetical case, not before the Court in Edwards, of a suspect who initiates a meeting with the police. The Court indicated that, even if the police said or did something in the meeting that constituted interrogation, incriminating statements thereby elicited would be admissible if a knowing and intelligent waiver of the suspect’s Fifth Amendment rights could be inferred in light of “the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Ibid. (Emphasis supplied.)

In this case, “the totality of the circumstances” includes the undisputed facts that respondent agreed only to submit to a polygraph examination, and that he was never told he would be subjected to a postexamination interrogation. Moreover, an agreement to submit to a polygraph examination differs in an important respect from the initiation of an ordinary conversation with the authorities. When a suspect commences a conversation with a policeman, he has reason to expect that, as in any conversation, there will be a give-and-take extending beyond the subject matter of his original remarks. It may therefore be appropriate to conclude that the suspect’s waiver of his Fifth Amendment rights extends to the entire conversation. By contrast, a polygraph examination is a discrete test. It has a readily identifiable beginning and end. An individual who submits to such an examination does not necessarily have any reason whatsoever to expect that he will be subjected to a postexamination interrogation. While in some cases the prosecution may be able to prove that a suspect knew there would be questioning after the test, here there is “no evidence that Fields or his lawyer anticipated that the CID officer would attempt to elicit incriminating statements from Fields after the examination was run.” 682 F. 2d 154, 160 (CA8 1982).

In any event, I do not believe that this substantial constitutional question should be disposed of summarily. I recognize, of course, that this Court’s expanding docket has increased the pressure to accelerate the disposition process. I cannot agree, however, that summary reversal is proper in a case that involves a significant issue not settled by our prior decisions. If the Court concludes that there are “special and important reasons,” this Court’s Rule 17.1, for granting cer-tiorari but also concludes that this case should not be set for oral argument, the Court should at least give the parties notice that it is considering a summary disposition, so that they may have an opportunity to submit briefs on the merits. See Brown, Foreword: Process of Law, 72 Harv. L. Rev. 77, 94-95 (1958).

II

Today’s decision holds only that the postexamination interrogation did not violate respondent’s Fifth Amendment privilege against self-incrimination. The Court’s ruling does not preclude the Court of Appeals from considering on remand whether the interrogation nevertheless violated his Sixth Amendment right to counsel. See Massiah v. United States, 377 U. S. 201 (1964). Because “the policies underlying the two constitutional protections are quite distinct,” Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980), a suspect may waive his Fifth Amendment right to remain silent without waiving his Sixth Amendment right to counsel.

Where only the Fifth Amendment applies, the ultimate question is whether the conduct alleged to constitute a waiver demonstrates that, despite “the compulsion inherent in custodial surroundings,” Miranda v. Arizona, 384 U. S. 436, 458 (1966), the suspect’s statements were given voluntarily. To make the Fifth Amendment protection against compelled self-incrimination effective, this Court has held that a suspect has a right to have counsel present at any custodial interrogation. Id., at 469-472. Once a suspect in custody asks to speak to a lawyer, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U. S., at 484-485. When a suspect has indicated that he needs legal advice before deciding whether to talk further, any subsequent statements made at the authorities’ insistence without counsel being present are unlikely to be voluntary. See Michigan v. Mosley, 423 U. S. 96, 110, n. 2 (1975) (White, J., concurring in result). If, on the other hand, the subsequent statements are made in a conversation initiated by the accused, they may well be voluntary. See Edwards v. Arizona, supra, at 486, n. 9. Since the underlying purpose of the privilege against self-incrimination is to prevent the State from coercing an individual to give evidence against himself, it makes sense to find a waiver of the privilege where a suspect’s conduct provides assurance that his statements were made voluntarily.

The determination of whether there has been a valid waiver of the Sixth Amendment right to counsel has a different focus, for the values underlying that right are different. The purpose of the Sixth Amendment right to counsel is to provide the defendant with legal assistance during the critical stages of the criminal process. See, e. g., Brewer v. Williams, 430 U. S. 387, 398 (1977); Powell v. Alabama, 287 U. S. 45, 57 (1932). To give effect to this protection, this Court has insisted that the State deal with a defendant through his attorney. Once the State has commenced adversary criminal proceedings against an individual, as Missouri did in this case more than two months before the polygraph examination was held, the Sixth Amendment forbids all efforts to elicit information from him in the absence of counsel, regardless of whether he is in custody, see United States v. Henry, 447 U. S. 264, 273-274, n. 11 (1980); Massiah v. United States, supra, and regardless of whether the technique used to extract information is in any way coercive, see McLeod v. Ohio, 381 U. S. 356 (1965).

To establish a waiver of the Sixth Amendment right to counsel, it is therefore not enough for the State to point to conduct — such as the initiation of a conversation — that demonstrates that the defendant’s statements were made voluntarily. Since a Sixth Amendment violation does not depend upon coercion, the protection of the Sixth Amendment is not waived by conduct that shows only that a defendant's statements were not coerced. The State must show that the defendant intelligently and knowingly relinquished his right not to be questioned in the absence of counsel. The State can establish a waiver only by proving “‘an intentional relinquishment or abandonment’” of the right to have counsel present. Brewer v. Williams, supra, at 404, quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938).

Given the different policies underlying the Fifth and Sixth Amendments, it is not surprising that a number of courts have held that “‘[warnings by law enforcement officers and subsequent action by the accused that might suffice to comply with Fifth Amendment strictures against testimonial compulsion [do] not necessarily meet. . . the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment [right to counsel] has attached.’ ” United States v. Mohabir, 624 F. 2d 1140, 1147 (CA2 1980), quoting United States v. Massimo, 432 F. 2d 324, 327 (CA2 1970) (Friendly, J., dissenting) (majority did not reach the issue), cert, denied, 400 U. S. 1022 (1971). Today’s decision therefore does not foreclose the Court of Appeals from considering on remand whether the postexamination interrogation violated the Sixth Amendment.

      The dissent suggests that, because the results of polygraph examinations are inadmissible in Missouri, Fields might reasonably have expected that he would not be subjected “to additional questioning that can produce admissible evidence.” Post, at 51, n. 2. Although the results of the polygraph examination might not have been admissible evidence, the statements Fields made in response to questioning during the course of the polygraph examination surely would have been.

       See generally Brown, Foreword: Process of Law, 72 Harv. L. Rev. 77 (1958).

       Certainly no one would argue that a suspect who consented to a blood test, a lineup, or fingerprinting thereby consented to be questioned about the results of those procedures.
      In this case, it is particularly inappropriate to assume that Fields must have realized that the CID agent would conduct a postexamination interrogation. The results of polygraph examinations are inadmissible in Missouri. See State v. Biddle, 599 S. W. 2d 182, 191 (Mo. 1980) (en banc); State v. Weindorf, 361 S. W. 2d 806, 811 (Mo. 1962). When a defendant, after consultation with his attorney, agrees to submit to an examination the results of which are inadmissible, the authorities have no justification for inferring that the defendant has also agreed to submit to additional questioning that can produce admissible evidence.

       1 do not share the majority’s certainty that the Court of Appeals relied “exclusively on the Fifth Amendment.” Ante, at 49. Although the opinion below does discuss Edwards v. Arizona, 451 U. S. 477 (1981), at considerable length, the court phrased its holding in terms of the “right to counsel” without referring specifically to the Fifth Amendment or the Sixth Amendment. See 682 F. 2d 154, 157 (CA8 1982) (“we conclude that Fields did not knowingly and intelligently waive his right to have counsel present at the interrogation”); id., at 161 (“The government has simply introduced no evidence from which we can conclude that when Fields was confronted with the accusatory statement that the ‘lie-detector’ showed he was lying, he waived his right to the protection of counsel in this coercive situation”). See also id., at 161, n. 12 (relying on Brewer v. Williams, 430 U. S. 387 (1977), a Sixth Amendment case). It is noteworthy that the Magistrate, whose report the District Court adopted, pointed to the Sixth Amendment problem by observing that it is “a somewhat empty gesture to appoint an attorney for an accused . . . and then pursue [an] interrogation . . . without his attorney.” In addition, the petition for certiorari asserts that the decision below “expands the rights guaranteed an accused during interrogation under the Fifth and Sixth Amendments.” Pet. for Cert. 7 (emphasis supplied).
      In any event, since the Court today construes the Court of Appeals’ opinion as resting solely on the Fifth Amendment, the Sixth Amendment issue remains open on remand.

        Edwards v. Arizona, supra, addressed only the standard governing waiver of the Fifth Amendment privilege against self-incrimination. Since the Court concluded that Edwards had been interrogated in violation of the Fifth Amendment, it had no occasion to consider whether the Sixth Amendment applied or whether, if so, Edwards had waived its protection. See id., at 480, n. 7.

       See United States ex rel. O’Connor v. New Jersey, 405 F. 2d 632, 636 (CA3), cert. denied, 395 U. S. 923 (1969); Hancock v. White, 378 F. 2d 479, 482 (CA1 1967). See also United States v. Springer, 460 F. 2d 1344, 1354-1355 (CA7) (Stevens, J., dissenting), cert. denied, 409 U. S. 873 (1972); People v. Arthur, 22 N. Y. 2d 325, 330, 239 N. E. 2d 537, 539 (1968). See generally Note, 82 Colum. L. Rev. 363 (1982).


source: Caselaw Access Project

author:
Per Curiam.
      Justice Marshall,

license: Public Domain

text:
    GRIGGS et al. v. PROVIDENT CONSUMER DISCOUNT CO.
    No. 82-5082.
    Decided November 29, 1982
   Per Curiam.

The petition for certiorari questions the validity of a notice of appeal filed after the entry of the District Court’s judgment but while the appellant’s motion to alter or amend that judgment remained pending in the District Court.

The petitioners brought this civil action in the United States District Court for the Eastern District of Pennsylvania, seeking statutory damages for an alleged violation of the Truth in Lending Act, 82 Stat. 146, as amended, 15 U. S. C. § 1601 et seq., and Regulation Z of the Federal Reserve Board, 12 CFR §226.1 et seq. (1982). On December 24, 1980, the District Court granted the petitioners’ motion for summary judgment, finding that the respondent’s disclosure of its security interests in after-acquired property had been inaccurate and misleading. 503 F. Supp. 246. On November 5, 1981, the District Court entered an order pursuant to Federal Rule of Civil Procedure 54(b) directing that a final judgment be entered. On November 12, the respondent filed a timely motion to alter or amend the judgment, pursuant to Federal Rule of Civil Procedure 59. On November 19, while that motion was still pending, the respondent filed a notice of appeal. On November 23, the District Court denied the motion to alter or amend the judgment. Neither the opinion below nor the response to the petition for a writ of certiorari indicates that any further notice of appeal was filed.

The United States Court of Appeals for the Third Circuit accepted jurisdiction of the appeal and reversed the District Court’s judgment. 680 F. 2d 927 (1982). The Court of Appeals explained its decision to take jurisdiction as follows:

“The Griggses urge that this matter is not appealable because Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that ‘[a] notice of appeal filed before the disposition of any of the above motions shall have no effect.’ Appellant did fail to satisfy Rule 4(a)(4) but though a premature notice of appeal is subject to dismissal, we have generally allowed appellant to proceed unless the appellee can show prejudice resulting from the premature filing of the notice. Tose v. First Pennsylvania Bank, N.A., 648 F. 2d 879, 882 n. 2 (3d Cir.), cert. denied, [454] U. S. [893] . . . (1981); Hodge v. Hodge, 507 F. 2d 87, 89 (3d Cir. 1975); accord Williams v. Town of Okoboji, 599 F. 2d 238 (8th Cir. 1979). See also 9 Moore’s Federal Practice ¶ 204.14 (2d ed. 1982). In our case, the Griggses have shown no prejudice by the premature filing of a notice of appeal.” Id., at 929, n. 2.

Because this analysis of Rule 4(a)(4) conflicts with the decisions of other Courts of Appeals and is contrary to the language and purposes of the 1979 amendments to the Federal Rules of Appellate Procedure, we grant the petitioners’ request for leave to proceed informa pauperis and their petition for a writ of certiorari, and we reverse.

Even before 1979, it was generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. See, e. g., United States v. Hitchmon, 587 F. 2d 1357 (CA5 1979). Cf. Ruby v. Secretary of United States Navy, 365 F. 2d 385, 389 (CA9 1966) (en banc) (notice of appeal from unappealable order does not divest district court of jurisdiction), cert. denied, 386 U. S. 1011 (1967). Under pre-1979 procedures, a district court lacked jurisdiction to entertain a motion to vacate, alter, or amend a judgment after a notice of appeal was filed. See Hattersley v. Bollt, 512 F. 2d 209 (CA3 1975); Edmond v. Moore-McCormack Lines, 253 F. 2d 143 (CA2 1958). However, if the timing was reversed — if the notice of appeal was filed after the motion to vacate, alter, or amend the judgment — two seemingly inconsistent conclusions were generally held to follow: the district court retained jurisdiction to decide the motion, but the notice of appeal was nonetheless considered adequate for purposes of beginning the appeals process. E. g., Yaretsky v. Blum, 592 F. 2d 65, 66 (CA2 1979), cert. denied, 450 U. S. 925 (1981); Williams v. Town of Okoboji, 599 F. 2d 238 (CA8 1979); Alexander v. Aero Lodge No. 735, 565 F. 2d 1364, 1371 (CA6 1977), cert. denied, 436 U. S. 946 (1978); Dougherty v. Harper’s Magazine Co., 537 F. 2d 758, 762 (CA3 1976); Stokes v. Peyton’s Inc., 508 F. 2d 1287 (CA5 1975); Song Jook Suh v. Rosenberg, 437 F. 2d 1098 (CA9 1971). Cf. Foman v. Davis, 371 U. S. 178 (1962). But see Century Laminating, Ltd. v. Montgomery, 595 F. 2d 563 (CA10), cert. dism’d, 444 U. S. 987 (1979). The reason this theoretical inconsistency was tolerable in practice was that the district courts did not automatically inform the courts of appeals when a notice of appeal had been filed, and there was therefore little danger a district court and a court of appeals would be simultaneously analyzing the same judgment.

In 1979, the Rules were amended to clarify both the litigants’ timetable and the courts’ respective jurisdictions. The new requirement that a district court “transmit forthwith” any valid notice of appeal to the court of appeals advanced the time when that court could begin processing an appeal. Fed. Rule App. Proc. 3(d). At the same time, in order to prevent unnecessary appellate review, the district court was given express authority to entertain a timely motion to alter or amend the judgment under Rule 59, even after a notice of appeal had been filed. Fed. Rule App. Proc. 4(a)(4). If these had been the only changes, the theoretical inconsistency noted above would have suddenly taken on practical significance. A broad class of situations would have been created in which district courts and courts of appeals would both have had the power to modify the same judgment. The 1979 amendments avoided that potential conflict by depriving the courts of appeals of jurisdiction in such situations.

New Rule 4(a)(4) states: Professor Moore has aptly described the post-1979 effect of a Rule 59 motion on a previously filed notice of appeal: “The appeal simply self-destructs.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶204.12[1], p. 4-65, n. 17 (1982). Moreover, a subsequent notice of appeal is also ineffective if it is filed while a timely Rule 59 motion is still pending. See 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3950 (1982 Supp.).

“If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party . . . under Rule 59 ... , the time for appeal for all parties shall run from the entry of the order denying . . . such motion. A notice of appeal filed before the disposition of [such motion] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.”

The United States Court of Appeals for the Third Circuit has taken the position that, notwithstanding the 1979 amendments, it retains discretion under Federal Rule of Appellate Procedure 2 to waive the conceded defects in a premature notice of appeal. Tose v. First Pennsylvania Bank, N.A., 648 F. 2d 879, 882, n. 2, cert. denied, 454 U. S. 893 (1981). We disagree. The notice of appeal filed in this case on November 19, 1980, was not merely defective; it was a nullity. Under the plain language of the current Rule, a premature notice of appeal “shall have no effect”; a new notice of appeal “must be filed.” In short, it is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act. It is well settled that the requirement of a timely notice of appeal is “ ‘mandatory and jurisdictional.’” Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257, 264 (1978).

The motion of petitioners for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Marshall,

dissenting.

Without the benefit of briefing or argument on the merits, the majority — in a conclusory footnote — decides that a Court of Appeals cannot invoke Rule 2 of the Federal Rules of Appellate Procedure to waive a defect in a notice of appeal. The Court’s exercise of its majestic power to decide this question is inappropriate in this case because an alternative ground for the lower court’s disposition exists: respondent in fact filed an effective notice of appeal following the denial of its motion to amend the District Court’s judgment. In any event, the majority’s interpretation of Rule 2 is inconsistent with the language of the Rule and with prior Court decisions, and the decision may have grave consequences for pro se litigants. At a minimum, the Court should allow the parties an opportunity to address these issues in a brief on the merits. I respectfully dissent.

While the majority describes respondent’s filing of a premature notice of appeal, it fails to mention the subsequent actions taken by respondent in the Court of Appeals following the District Court’s denial of the Federal Rule of Civil Procedure 59 motion on November 23,1981. Respondent’s actions within 30 days of November 23 amply satisfied the content requirements of Federal Rule of Appellate Procedure 3(c).

On December 4, the Court of Appeals docketed the appeal and the record from the District Court was filed. That same day, the Clerk for the Court of Appeals sent a letter to respondent’s counsel with a copy to petitioners’ counsel notifying them that the case had been docketed and the record filed. The Clerk’s letter noted that a brief on the merits of the appeal had already been filed by respondent, due to a prior misunderstanding. The Clerk asked respondent’s counsel to advise the court “in writing if it is your intention to rely on the briefs previously filed.” See App. C to Pet. for Cert.

On December 12, respondent sent two letters to the Court of Appeals, both of which were received on December 15. The first letter stated that respondent intended to file a new brief in the docketed case but would rely on the same appendix that had previously been filed. The letter also included a disclosure statement in order to comply with a local Third Circuit rule. The second letter provided, in accordance with Federal Rule of Appellate Procedure 30(b), a statement of the issues which respondent intended to present for review to the Court of Appeals and also a designation of the portions of the appendix on which respondent would rely. Copies of both of these letters were served on counsel for petitioners.

Under the circumstances of this case, viewed in their entirety, respondent clearly filed a timely notice of appeal as defined by Rule 3(c). That Rule was amended in 1979 to provide that “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.” The Advisory Committee Notes explain the significance of the amendment as follows:

“[I]t is important that the right to appeal not be lost by mistakes of mere form. In a number of decided cases it has been held that so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with. See, e. g., Cobb v. Lewis (C. A. 5th, 1974) 488 F. 2d 41; Holley v. Capps (C. A. 5th, 1972) 468 F. 2d 1366. The proposed amendment would give recognition to this practice.” 28 U. S. C. App., p. 144 (1976 ed., Supp. V) (emphasis added).

The Cobb case cited by the Advisory Committee is particularly instructive. There, the Court of Appeals concluded that “the notice of appeal requirement may be satisfied by any statement, made either to the district court or to the Court of Appeals, that clearly evinces the party’s intent to appeal.” Cobb v. Lewis, 488 F. 2d 41, 45 (CA5 1974) (emphasis added). The court reasoned that such a statement “accomplishes the two basic objectives of the Rule 3 notice requirement: (1) to notify the Court of the taking of an appeal; and (2) to notify the opposing party of the taking of an appeal.” Ibid.

The actions undertaken by respondent during the 30 days after November 23 amply satisfied the Rule’s requirement of notice to the Court of Appeals and to the opposing party. Within 30 days after November 23, 1981, the Court of Appeals had before it the record of the case, respondent’s previously filed brief on the merits, a letter from respondent indicating its intention to file a new brief on the merits and also containing a disclosure statement, and a letter from respondent stating precisely those issues which were to be raised on appeal and also providing designations of the portions of the previously filed appendix upon which respondent would rely. Similarly, petitioners had received a notice from the Court of Appeals that the case had been docketed and the record filed, and they had received from respondent copies of the letters sent to the Court of Appeals, which included a Rule 30(b) statement of the issues to be presented.

The specific actions taken by respondent after November 23 provided adequate notice of its intent to appeal. Any other conclusion would exalt empty form and ritual over common sense. As the court stated in Cobb v. Lewis, supra, a decision upon which the Advisory Committee relied in amending Rule 3(c), “‘it would we think be a harking back to formalistic rigorism of an earlier and outmoded time, as well as a travesty upon justice, to hold the extremely simple procedure required by the Rule is itself a kind of Mumbo Jumbo, and that the failure to comply formalistically with it defeats substantial rights.’” 488 F. 2d, at 45, quoting Crump v. Hill, 104 F. 2d 36, 38 (CA5 1939).

Because respondent filed an effective notice of appeal, the Court of Appeals was compelled to reach the merits of the appeal. The lower court’s interpretation of its discretionary authority under Rule 2 of the Federal Rules of Appellate Procedure was thus unnecessary to the proper disposition of respondent’s appeal. Consequently, I do not think this case is an appropriate vehicle for making new procedural law.

b-I HH

Even if this case warranted review, I would decline to join the majority in summarily rejecting the basis provided by the Court of Appeals for its decision to reach the merits of respondent’s appeal. The court relied on Rule 2 of the Federal Rules of Appellate Procedure, which provides that for good cause “a court of appeals may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case ... on its own motion. . . .” According to the Advisory Committee Notes, the Rule “contains a general authorization to the courts to relieve litigants of the consequences of default where manifest injustice would otherwise result.” 28 U. S. C. App., p. 352.

Invoking its discretionary authority under Rule 2, the Third Circuit declines to dismiss appeals based on Rule 4(a)(4) defaults in the absence of a showing of prejudice to the appellee. See Tose v. First Pennsylvania Bank, N.A., 648 F. 2d 879, 882, n. 2, cert. denied, 454 U. S. 893 (1981); Hodge v. Hodge, 507 F. 2d 87, 89 (CA3 1975), cited in 680 F. 2d 927, 929, n. 2 (1982) (case below). On this ground, the Court of Appeals exercised its discretion in this case after concluding that petitioners had failed to show any prejudice.

In a two-sentence footnote rejecting the lower court’s interpretation of Rule 2, the majority notes only that the discretion granted in Rule 2 is explicitly limited by Federal Rule of Appellate Procedure 26(b), which states that a court of appeals “may not enlarge the time for filing a notice of appeal.” The majority does not explain the relevance of Rule 26(b) to this case. The common-sense meaning of the Rule is that a court may not recognize a late notice of appeal. See United States v. Robinson, 361 U. S. 220, 224 (1960). Rule 26 by its very title deals with an extension of time; in the words of the Advisory Committee Notes to Rule 2, “Rule 26(b) prohibits a court of appeals from extending the time for taking appeal or seeking review” (emphasis added). 28 U. S. C. App., p. 352. In similar fashion, the provisions of Federal Rule of Civil Procedure 6, on which Rule 26 is based, discuss enlargement in terms of extending the expiration date of a period. In short, there is little question that a court of appeals may not — consistent with the mandate of Rule 26(b)— give effect to a late notice of appeal. But it is certainly debatable whether Rule 26(b) prohibits the recognition of a premature notice of appeal. Only Rule 4(a)(4) explicitly bars such recognition, but Rule 4(a)(4) does not serve as an express limitation on Rule 2.

The Court concludes that, because of respondent’s failure to refile the same notice of appeal filed four days prematurely, the Court of Appeals was absolutely barred from addressing the merits of its appeal. This conclusion flies in the face of our previous declaration that it is “too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.” Foman v. Davis, 371 U. S. 178, 181 (1962) (discussing a notice of appeal under Federal Rule of Civil Procedure 73(a), the predecessor of Federal Rule of Appellate Procedure 4). See also Bankers Trust Co. v. Mallis, 435 U. S. 381, 387 (1978) (per curiam) (“the technical requirements [imposed by the Rules of Appellate Procedure] for a notice of appeal were not mandatory where the notice ‘did not mislead or prejudice’ ”).

The Court’s interpretation of Rule 4(a)(4) also creates new and serious pitfalls for pro se and other unsophisticated litigants. The reports are filled with cases in which litigants filed postjudgment motions to “reconsider,” to “vacate,” to “set aside,” or to “reargue” adverse judgments. The lower courts have almost without exception treated these as Rule 59 motions, regardless of their label. Indeed, even motions captioned under Rule 60(b), but filed within 10 days of judgment, are normally deemed Rule 59 motions. According to the majority, a notice of appeal becomes a “nullity” if it is filed while a Rule 59 motion is pending. Thus, under the majority’s approach, litigants could unwittingly file invalid notices of appeal simply because they had previously filed a motion questioning a district court judgment which, unbeknownst to them, is a Rule 59 motion. The mere failure to appreciate the distinction between a Rule 59 motion and a Rule 60(b) motion, when combined with the draconian application of Rule 4(a)(4) adopted by the majority, would require the dismissal of an appeal. See, e. g., Apel v. Wainwright, 677 F. 2d 116 (CA11 1982) (on petition for rehearing), cert, pending, No. 82-5503.

Ill

If the Court believes, as I do not, that it is necessary in this case to examine the Court of Appeals’ interpretation of Rule 2,1 would at least notify the parties that the Court is considering a summary disposition, so that they may have an opportunity to submit briefs on the merits. Without such briefing, the risk of error necessarily increases. I therefore dissent.

       See United States v. Valdosta-Lowndes County Hospital Authority, 668 F. 2d 1177, 1178, n. 2 (CA11 1982); Beam v. Youens, 664 F. 2d 1275 (CA5 1982); Williams v. Bolger, 633 F. 2d 410 (CA5 1980); Century Laminating, Ltd. v. Montgomery, 595 F. 2d 563 (CA10), cert. dism’d, 444 U. S. 987 (1979). Cf. United States v. Jones, 669 F. 2d 559, 561 (CA8 1982) (dictum); Calhoun v. United States, 647 F. 2d 6, 10 (CA9 1981); United States v. Moore, 616 F. 2d 1030, 1032, n. 2 (CA7) (dictum), cert. denied, 446 U. S. 987 (1980). But cf. Laser Alignment, Inc. v. Warlick, 32 Fed. Rules Serv. 2d 776 (CA4 1981).

       The Advisory Committee on Appellate Rules explained the modification as follows:
      “The proposed amendment would make it clear that after the filing of the specified post trial motions, a notice of appeal should await disposition of the motion. . . . [I]t would be undesirable to proceed with the appeal while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from. . . . Under the present rule, since docketing may not take place until the record is transmitted, premature filing is much less likely to involve waste effort. See, e. g., Stokes v. Peyton’s Inc., 508 F. 2d 1287 (5th Cir. 1975). Further, since a notice of appeal filed before the disposition of a post trial motion, even if it were treated as valid for purposes of jurisdiction, would not embrace objections to the denial of the motion, it is obviously preferable to postpone the notice of appeal until after the motion is disposed of.
      “The present rule [pre-1979], since it provides for the ‘termination’ of the ‘running’ of the appeal time, is ambiguous in its application to a notice of appeal filed prior to a post trial motion filed within the 10 day limit. The amendment would make it clear that in such circumstances the appellant should not proceed with the appeal during pendency of the motion but should file a new notice of appeal after the motion is disposed of.” Notes of Advisory Committee on Appellate Rules, 28 U. S. C. App., p. 146 (1976 ed., Supp V).

       Rule 2 does not purport to vest unlimited discretion in the court of appeals. That Rule explicitly states that the discretion it authorizes is limited by Rule 26(b), which prohibits courts of appeals from enlarging the time for filing a notice of appeal.

       Presumably, the majority’s remand for “further proceedings” will allow the Court of Appeals to consider whether respondent filed an effective notice of appeal. Cf. United States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (per curiam) (where the lower court lacks jurisdiction, Court reverses and remands with instructions to the Court of Appeals to dismiss the appeal); Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257 (1978) (Court simply reverses where Court of Appeals lacked jurisdiction due to untimely notice of appeal).

       Respondent filed a brief on appeal in early 1981 in the mistaken belief that a final summary judgment had been entered. On October 2,1981, the Court of Appeals remanded the case to the District Court, which subsequently entered an order directing entry of final judgment pursuant to Federal Rule of Civil Procedure 54(b).

       The Clerk’s Office for the Court of Appeals for the Third Circuit enters only pleadings on its docket sheet. It maintains a separate file for all correspondence relating to a docketed case. The letters sent by respondent are in the Court of Appeals correspondence file for case No. 81-2989, the Court of Appeals docket number for this case. The docket sheet for the Court of Appeals in No. 81-2989 states that on December 4, 1981, a notice of appeal by respondent’s counsel was filed. This is apparently a reference to a certified copy of the premature notice of appeal, which the District Court transmitted along with the record.

       The papers filed by respondent after November 23 were transmitted to the Court of Appeals rather than to the District Court. Cobb v. Lewis, 488 F. 2d, at 45, makes clear that the notice requirement may be satisfied by a statement made either to the District Court or to the Court of Appeals. In a similar vein, Federal Rule of Appellate Procedure 4(a)(1) states that if a notice of appeal “is mistakenly filed in the court of appeals,” the clerk of that court should note the date of the notice, and the notice “shall be deemed filed in the district court on the date so noted.” Thus, a mistaken filing in the Court of Appeals is clearly not a fatal defect under the Rules. In this case, respondent appears to have filed a notice of appeal as defined by Rule 3(c) with the Court of Appeals on December 15. By that date, the District Court had already transmitted the record and a certified copy of the premature notice of appeal to the Court of Appeals, and the appellate court had docketed the appeal. Under these circumstances, the Court of Appeals would have been the sensible place in which to file a new notice. Respondent should not have been expected to return to the District Court after December 4, when that court no longer had the record.

       The majority apparently does not dispute the Court of Appeals’ conclusion that the dismissal of an appeal based on an appellant’s failure to comply with the technical requirements of Rule 4(a)(4) would be a manifest injustice in the absence of prejudice to the appellee.

       See 1967 Advisory Committee Note to Fed. Rule App. Proc. 26, 28 U. S. C. App., p. 367.

       See 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 204.12[1], p. 4-67, and n. 26 (1982). In the Third Circuit alone, see, e. g., Richerson v. Jones, 572 F. 2d 89, 93 (1978) (motion to reconsider judgment); Sonnenblick-Goldman Corp. v. Nowalk, 420 F. 2d 858, 859 (1970) (motion to vacate judgment); Gainey v. Brotherhood of Railway & Steamship Clerks, 303 F. 2d 716, 718 (1962) (motion for rehearing or reconsideration). Sometimes the characterization has resulted in the dismissal of an appeal.

         E. g., Dove v. Codesco, 569 F. 2d 807 (CA4 1978); Alley v. Dodge Hotel, 179 U. S. App. D. C. 256, 551 F. 2d 442 (1977); Sea Ranch Assn. v. California Coastal Zone Conservation Comm’ns, 537 F. 2d 1058 (CA9 1976); Woodham v. American Cystoscope Co., 335 F. 2d 551 (CA5 1964).


author: Justice Rehnquist Justice Blackmun,

text:
    UNITED STATES v. SECURITY INDUSTRIAL BANK et al.
    No. 81-184.
    Argued October 6, 1982
    Decided November 30, 1982

      Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, in which Brennan and Marshall, JJ., joined, post, p. 82.

      Alan I. Horowitz argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, and Deputy Solicitor General Geller.

      Henry F. Field argued the cause for appellees. With him on the briefs for appellee Beneficial Finance of Kansas, Inc., were Abe Fortas, Phil C. Neal, and Joseph M. Berl. Michael E. Katch filed a brief for appellees Security Industrial Bank et al.
   Justice Rehnquist

delivered the opinion of the Court.

This case concerns the effect of 11 U. S. C. § 522(f)(2) (1976 ed., Supp. V), which permits individual debtors in bankruptcy proceedings to avoid liens on certain property. The Court of Appeals consolidated seven appeals from the Bankruptcy Courts for the Districts of Kansas and Colorado. In each case the debtor was an individual who instituted bankruptcy proceedings after the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2549 (1978 Act), became effective on October 1, 1979. In each case one of the appellees had loaned the debtor money and obtained and perfected a lien on the debtor’s household furnishings and appliances before the 1978 Act was enacted on November 6, 1978. None of these liens was possessory, and none secured purchase-money obligations.

Included within the personal property subject to the appel-lees’ liens were household items that are exempt from the property included within the debtors’ estates by virtue of subsections (b) and (d) of § 522. The debtors claimed these exemptions in their respective bankruptcy proceedings, relying on § 522(f)(2) to avoid the liens. That section provides:

“Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
“(2) a nonpossessory, nonpurchase-money security interest in any—
“(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
“(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
“(C) professionally prescribed health aids for the debtor or a dependent of the debtor.”

The appellees asserted that application of § 522(f)(2) to liens acquired before the enactment date would violate the Fifth Amendment. The United States intervened in each case to defend the constitutionality of the federal statute, but the Bankruptcy Courts in each case refused to apply § 522(f)(2) to abrogate liens acquired before the enactment date.

The Court of Appeals consolidated the cases and affirmed the judgments of the Bankruptcy Courts. 642 F. 2d 1193 (CA10 1981). It held that the 1978 Act was intended to apply retrospectively, and thus was designed to invalidate liens acquired before the enactment date. It also held, however, that such an application violates the Fifth Amendment. The court stated that § 522(f)(2) effects a “complete taking of the secured creditors’ property interests,” and is thus invalid under Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 (1935). The United States appealed, and we noted probable jurisdiction. 454 U. S. 1122 (1981).

The appellees, of course, defend the judgment of the Court of Appeals. The Government argues at some length that retrospective application of § 522(f)(2) to these liens would not violate the Fifth Amendment. It contends that the enactment is a “rational” exercise of Congress’ bankruptcy power, that for “bankruptcy purposes” property interests are all but indistinguishable from contractual interests, and that these particular interests were “insubstantial” and therefore their destruction does not amount to a “taking” of property requiring compensation. We do not decide the constitutional question reached by the Court of Appeals. We address it only to determine whether the attack on the retrospective application of the statute raises substantial enough constitutional doubts to warrant the employment of the canon of statutory construction referred to infra, at 78-81.

It may be readily agreed that § 522(f)(2) is a rational exercise of Congress’ authority under Art. I, § 8, cl. 4, and that this authority has been regularly construed to authorize the retrospective impairment of contractual obligations. Hano ver National Bank v. Moyses, 186 U. S. 181, 188 (1902). Such agreement does not, however, obviate the additional difficulty that arises when that power is sought to be used to defeat traditional property interests. The bankruptcy power is subject to the Fifth Amendment’s prohibition against taking private property without compensation. Louisville Joint Stock Land Bank v. Radford, supra. Thus, however “rational” the exercise of the bankruptcy power may be, that inquiry is quite separate from the question whether the enactment takes property within the prohibition of the Fifth Amendment.

The Government apparently contends (Brief for United States 30-32) that because cases such as Arnett v. Kennedy, 416 U. S. 134 (1974), and Goldberg v. Kelly, 397 U. S. 254 (1970), defined “property” for purposes of the Due Process Clause sufficiently broadly to include rights which at common law would have been deemed contractual, traditional property rights are entitled to no greater protection under the Takings Clause than traditional contract rights. It argues that “bankruptcy principles do not support a sharp distinction between the rights of secured and unsecured creditors.” Brief for United States 31. However “bankruptcy principles” may speak to this question, our cases recognize, as did the common law, that the contractual right of a secured creditor to obtain repayment of his debt may be quite different in legal contemplation from the property right of the same creditor in the collateral. Compare Hanover National Bank v. Moyses, supra, with Louisville Joint Stock Land Bank v. Radford, supra, and Kaiser Aetna v. United States, 444 U. S. 164 (1979).

Since the governmental action here would result in a complete destruction of the property right of the secured party, the case fits but awkwardly into the analytic framework employed in Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978), and PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), where governmental action affected some but not all of the “bundle of rights” which constitute the “property” in question. The Government argues that the interest of a secured party such as was involved here is “insubstantial,” apparently in part because it is a nonpurchase-money, nonpossessory interest in personal property. The “bundle of rights” which accrues to a secured party is obviously smaller than that which accrues to an owner in fee simple, but the Government cites no cases supporting the proposition that differences such as these relegate the secured party’s interest to something less than property. And our decisions in Radford, supra, and Armstrong v. United States, 364 U. S. 40 (1960), militate against such a proposition.

In Radford, we held that the Frazier-Lemke Act, 48 Stat. 1289, violated the Takings Clause. The bank held a nonpurchase-money mortgage on Radford’s farm. Radford defaulted and instituted bankruptcy proceedings. The Frazier-Lemke Act, which by its terms applied only retrospectively, permitted the debtor to purchase the property for less than its fair market value. We held the statute was void because it effected a “taking of substantive rights in specific property acquired by the Bank prior to” its enactment. 295 U. S., at 590. In his opinion for the Court, Justice Brandéis stated:

“[T]he Fifth Amendment commands that, however great the Nation’s need, private property shall not be thus taken even for a wholly public use without just compensation. If the public interest requires, and permits, the taking of property of individual mortgagees in order to relieve the necessities of individual mortgagors, resort must be had to proceedings by eminent domain; so that, through taxation, the burden of the relief afforded in the public interest may be borne by the public.” Id., at 602.

In Armstrong, materialmen delivered materials to a prime contractor for use in constructing Navy personnel boats. Under state law, they obtained liens in the vessels. The prime contractor defaulted on his obligations to the United States, and the Government took title to and possession of the uncompleted hulls and unused materials, thus making it impossible for the materialmen to enforce their liens. We held that this constituted a taking:

“The total destruction by the Government of all value of these liens, which constitute compensable property, has every possible element of a Fifth Amendment ‘taking’ and is not a mere ‘consequential incidence’ of a valid regulatory measure.” 364 U. S., at 48.

The Government seeks to distinguish Armstrong on the ground that it was a classical “taking” in the sense that the Government acquired for itself the property in question, while in the instant case the Government has simply imposed a general economic regulation which in effect transfers the property interest from a private creditor to a private debtor. While the classical taking is of the sort that the Government describes, our cases show that takings analysis is not necessarily limited to outright acquisitions by the government for itself. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982); PruneYard, Shopping Center v. Robins, 447 U. S. 74 (1980); Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922).

The Government finally contends that because the resale value of household goods is generally low, and because creditors therefore view the principal value of their security as a lever to negotiate for reaffirmation of the debt rather than as a vehicle for foreclosure, the property interests involved here do not merit protection under the Takings Clause. While this contention cannot be dismissed out of hand, it seems to run counter to the State’s characterization of the interest as property, see n. 6, supra, to our reliance in other “takings” cases on state-law characterizations, see, e. g., Kaiser Aetna v. United States, 444 U. S., at 179, and also to at least some of the implications of Radford, supra, and Armstrong, supra.

The foregoing discussion satisfies us that there is substantial doubt whether the retroactive destruction of the appel-lees’ liens in this case comports with the Fifth Amendment. We now consider whether, as a matter of statutory construction, § 522(f)(2) must necessarily be applied in that manner. We consider the statutory question because of the “ ‘cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided.’” Lorillard v. Pons, 434 U. S. 575, 577 (1978), quoting Crowell v. Benson, 285 U. S. 22, 62 (1932).

The Court of Appeals thought § 522(f)(2) must apply retroactively, that is, to liens which attached before the enactment date, because “there would be no bankruptcy law applicable to cases [involving such liens if it did not].” 642 F. 2d, at 1197. The court apparently thought that if § 522(f)(2) does not apply to liens which came into existence before the enactment date, then no part of the 1978 Act could apply to cases involving such liens. This is not necessarily the case. The liens, of course, exist under state law independently of the 1978 Act. Although the 1978 Act, in general, is effective for all cases commenced after its effective date, Congress might have intended that provisions that destroy previously vested property rights apply only to interests that came into effect after the enactment date. If § 522(f)(2) is such a provision, the remainder of the 1978 Act would not affect the enforceability of these liens, but would still apply to these liens and these cases. We think that the analysis of the Court of Appeals did not adequately dispose of the question as to the retrospective effect of § 522(f), and we therefore pursue the inquiry further.

The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student. Compare 1 C. Sands, Sutherland on Statutory Construction § 1.06 (4th ed. 1972), with Linkletter v. Walker, 381 U. S. 618, 622-625 (1965). This Court has often pointed out:

“[T]he first rule of construction is that legislation must be considered as addressed to the future, not to the past.... The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights . . . unless such be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’” Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S. 190, 199 (1913) (citations omitted).

See, e. g., United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U. S. 306, 314 (1908) (“The presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other”); United States v. Schooner Peggy, 1 Cranch 103, 110 (1801).

This principle has been repeatedly applied to bankruptcy statutes affecting property rights. In Holt v. Henley, 232 U. S. 637 (1914), the Court had before it a new statute granting bankruptcy trustees the position of a lienholder with priority over sellers on conditional sales contracts. Act of June 25, 1910, ch. 412, §8, 36 Stat. 840. This provision, like § 522(f)(2), could be read literally to divest property interests which had been created before it was enacted. The 1910 statute, like the 1978 Act, applied to all bankruptcy cases instituted after it became effective. Nonetheless, the Court followed the lead of the lower courts in refusing to infer retroactivity absent an explicitly “expressed intent of Congress.” Arctic Ice Machine Co. v. Armstrong County Trust Co., 192 F. 114, 116 (CA3 1911). See also In re Schneider, 203 F. 589, 590 (ED Pa. 1913). In his opinion for the unanimous Court, Justice Holmes stated that “the reasonable and usual interpretation of [bankruptcy] statutes is to confine their effect, so far as may be, to property rights established after they were passed.” 232 U. S., at 639. See Auffm’ordt v. Rasin, 102 U. S. 620, 622 (1881).

The Government nonetheless contends that bankruptcy statutes are usually construed to apply to pre-existing rights. This statement is unobjectionable in the context of traditional contract rights, Hanover National Bank v. Moyses, 186 U. S., at 188, but none of the cases cited by the Government extend it to property rights such as those involved here.

Neither these cases, nor any other that has come to our attention, casts doubt on the principle of statutory construction deducible from Holt and Auffm’ordt: No bankruptcy law shall be construed to eliminate property rights which existed before the law was enacted in the absence of an explicit command from Congress. In light of this principle, the legislative history of the 1978 Act suggests that Congress may not have intended that § 522(f) operate to destroy pre-enactment property rights.

An early version of the 1978 Act contained an explicit requirement that all its provisions “shall apply in all cases or proceedings instituted after its effective date, regardless of the date of occurrence of any of the operative facts determining legal rights, duties, or liabilities hereunder.” § 10-108(a), H. R. 31, 94th Cong., 1st Sess. (1975), reprinted in Bankruptcy Act Revision: Hearings on H. R. 31 and H. R. 32 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., Appendix 320-321 (1975). This provision may or may not have been deleted directly in response to the comments of witness William Plumb to the effect that retroactive invalidation of liens may be an unconstitutional taking. Id., at 2066-2067. Nonetheless, Congress’ elimination of an explicit command is some evidence that it did not intend to depart from the usual principle of construction. See Bradley v. Richmond School Board, 416 U. S. 696, 716, n. 23 (1974) (“we are reluctant to read into the statute the very . . . limitation that Congress eliminated”).

“Accordingly, in the absence of a clear expression of Congress’ intent to” apply § 522(f)(2) to property rights established before the enactment date, “we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the” Takings Clause. NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 507 (1979). The judgment of the Court of Appeals must therefore be

Affirmed.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join,

concurring in the judgment.

This case concerns the Bankruptcy Act of 1978, 11 U. S. C. §101 et seq. (1976 ed., Supp. V), and, in particular, the exemption provisions of § 522 of that Act. Specifically at issue is the effect of certain of these exemption provisions upon nonpossessory, nonpurchase-money obligations given by debtors to small loan companies before the enactment of the Act. The purported liens apply generally, not specifically, to property of the kind described and, as a practicable matter, there is nothing to prevent the debtor’s selling the property and replacing it or not replacing it, just as he chooses.

Section 522, for the first time, established a set of federal exemptions for individual debtors. Concededly, the section, as all similar statutes, was enacted to protect the debtor’s essential needs and to enable him to have a fresh start economically. Section 522(f)(2) permits the debtor to “avoid the fixing” of a nonpossessory, nonpurchase-money security interest in certain property, but the subsection does not extend to all property otherwise exempt under § 522(d). It is limited to certain personal items, such as household furnishings, wearing apparel, jewelry, tools of the debtor’s trade, and professionally prescribed health aids.

The Court naturally struggles with the question of the application of the new exemption provisions to obligations created before the new Act. It notes its concern with constitutional problems and it also greets with obvious relief the possibility of construing the Act as being only prospective in its operation. It then quickly pursues the latter route in order to avoid any constitutional issue.

I understand and can sympathize with the Court’s desire thus to resolve the case. It is usually much easier to construe a statute so as to avoid a constitutional issue than it is to resolve the constitutional issue itself. And, of course, the Court’s cases have announced that, where feasible, this is the preferred method. See, e. g., Lorillard v. Pons, 434 U. S. 575, 577 (1978).

Were we writing on a “clean slate,” however, I would not pursue, in this case, that principle of construction-preference, for I think that the case would deserve consideration in greater depth. I see nothing in the statute with which we are concerned that speaks or hints of only prospective applicability, or that compels it, and I would find it necessary to reach the constitutional issue. I would then resolve that issue in favor of the debtor and against the small-loan-company creditor. I would do so because the exemptions in question are limited as to kinds of property and as to values; because the amount loaned has little or no relationship to the value of the property; because these asserted lien interests come close to being contracts of adhesion; because repossessions by small loan companies in this kind of situation are rare; because the purpose of the statute is salutary and is to give the debtor a fresh start with a minimum for necessities; because there has been creditor abuse; because Congress merely has adjusted priorities, and has not taken for the Government’s use or for public use; because the exemption provisions in question affect the remedy and not the debt; because the security interest seems to have little direct value and weight in its own right and appears useful mainly as a convenient tool with which to threaten the debtor to reaffirm the underlying obligation; because the statute is essentially economic regulation and insubstantial at that; and because there is an element of precedent favorable to the debtor to be found in such cases as Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), and PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980).

But we are not writing on a clean slate. It seems to me that the case of Holt v. Henley, 232 U. S. 637 (1914), is precisely in point and, unless the Court chooses to overrule it, must control the present case. There, Holt and the eventual bankrupt signed an agreement in 1909 for the installation of an automatic sprinkler system on the property of the eventual bankrupt. The agreement specified that the system was to remain Holt’s property until paid for and that he was to have a right to enter and remove it upon failure to pay as agreed. Thereafter, but also in 1909, a mortgage deed was executed covering the plant and what was “acquired and placed upon the said premises during the continuance of this trust.” Id., at 639. Section 8 of the Act of June 25, 1910, ch. 412, 36 Stat. 840, amended §47a(2) of the then Bankruptcy Act to give the trustee in bankruptcy, as to property coming into the custody of the bankruptcy court, the rights of a creditor holding a lien. Upon Holt’s debtor’s bankruptcy, the mortgagees claimed the sprinkler system.

Justice Holmes, writing for a unanimous Court, observed that before the amendment “Holt had a better title than the trustees would have got” and that the Court was of the opinion “that the act should not be construed to impair it.” 232 U. S., at 639. He went on:

“We do not need to consider whether or how far in any event the constitutional power of Congress would have been limited. It is enough that the reasonable and usual interpretation of such statutes is to confine their effect, so far as may be, to property rights established after they were passed. . . . That is a familiar and natural mode of interpretation .... We are of opinion that [Holt’s title] was not affected by the enactment of later date than the conditional sale. The opposite construction would not simply extend a remedy but would impute to the act of Congress an intent to take away rights lawfully retained, and unimpeachable at the moment when they took their start.” Id., at 639-640.

The Court then ruled against the claim of the mortgagees because they had made no advance on the faith of the sprinkler system and were not purchasers for value as against Holt, and because removal “would not affect the integrity of the structure on which the mortgagees advanced.” Id., at 641.

Holt v. Henley thus also involved a pre-existing agreement, a subsequent change in the then Bankruptcy Act, and the Court’s preservation of the pre-existing right. I see no way to distinguish that case from this one, and I would affirm the judgment of the Court of Appeals simply on the compelling authority of Holt v. Henley. See also Auffm’ordt v. Rasin, 102 U. S. 620, 622 (1881). I would much prefer to avoid in this way the dicta the Court enunciates with respect to “takings.”

       The exemptions were designed to permit individual debtors to retain exempt property so that they will be able to enjoy a “fresh start” after bankruptcy.
      Subsections (b) and (d) of § 522 provide in pertinent part:
      “(b) [A]n individual debtor may exempt from property of the estate ... —
      “(1) property that is specified under subsection (d) of this section . . .
      “(d) The following property may be exempted under subsection (b)(1) of this section:
      “(3) The debtor’s interest, not to exceed $200 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the personal, family or household use of the debtor or a dependent of the debtor.
      “(4) The debtor’s aggregate interest, not to exceed $500 in value, in jewelry held primarily for the personal, family, or household use of the debtor or the dependent of the debtor.
      “(6) The debtor’s aggregate interest, not to exceed $750 in value, in any implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor.
      “(9) Professionally prescribed health aids for the debtor or a dependent of the debtor.”

       See 28 U. S. C. § 2403(a).

       In Schulte v. Beneficial Finance of Kansas, Inc., and Hunter v. Beneficial Finance of Kansas, Inc., 8 B. R. 12 (1980), the Bankruptcy Court for the District of Kansas noted that retrospective application of § 522(f)(2) creates constitutional problems and held that it should be applied only prospectively. In Jackson v. Security Industrial Bank, and Stevens v. Liberty Loan Corp., 4 B. R. 293 (1980), Rodrock v. Security Industrial Bank, and Knezel v. Security Industrial Bank, 3 B. R. 629 (1980), the Bankruptcy Court for the District of Colorado concluded that § 522(f)(2), as applied retrospectively, violates the Due Process Clause of the Fifth Amendment. In Hoops v. Freedom Finance, 3 B. R. 635 (1980), the Bankruptcy Court for the District of Colorado concluded that § 522(f)(2), as applied retrospectively, violates “substantive due process.”

        In re Gifford, 688 F. 2d 447 (CA7 1982) (en bane), holds that § 522(f)(2) constitutionally applies to liens created before the enactment date. In re Webber, 674 F. 2d 796 (CA9 1982), holds that § 522(f)(2) constitutionally applies to liens created before the Act became effective but after the enactment date. In re Ashe, 669 F. 2d 105 (CA3 1982), holds that § 522(f)(1), which permits avoidance of certain judicial liens, constitutionally applies to a cognovit note created before the enactment date.

       Appellee Beneficial Finance of Kansas, Inc., asserts that the judgments should be affirmed because the Act violates Art. Ill of the Constitution by granting judicial power to non-Art. Ill bankruptcy judges. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) (plurality opinion of Brennan, J.); id., at 90-91 (Rehnquist, J., concurring in judgment). Because our decision in Northern Pipeline is prospective only, id., at 87-89, and because we have stayed the issuance of our mandate in that case to December 24, 1982, post, p. 813, that decision does not affect the judgment in this case.

       At oral argument the Government conceded that the liens at issue in this case are treated as property under state law. Tr. of Oral Arg. 21.
      Both Kansas and Colorado have adopted the Uniform Commercial Code. Although under the Code the priority among secured parties is often affected by the purchase-money or possessory character of security interests, see, e. g., §9-312, 3 U. L. A. 531 (1981), these characterizations do not affect the nature of the security interest. See § 9-107 (defining “purchase money security interest”), § 9-305 (providing for perfection of security interests by possession).
      Section 101(28) of the 1978 Act defines a lien as a “charge against or interest in property to secure payment of a debt or performance of an obligation.” It does not make distinctions based on the purchase-money or possessory nature of a lien.

       The Frazier-Lemke Act permitted the farmer, if the mortgagee assented, to purchase the property at its then-appraised value on a deferred payment plan. If the mortgagee refused to assent, the court was required to stay all proceedings for five years, during which time the farmer could retain possession by paying a reasonable rent. After five years the property could be reappraised, but the farmer still had the right to purchase it free and clear for the appraised value regardless of the amount of the lien. See Radford, 295 U. S., at 597-598. Given the interest rate of 1%, the present value of the deferred payments was much less than the value of the property. Id., at 591-593.

       Under the Uniform Commercial Code definition, these statutory liens would be nonpossessory, nonpurchase-money liens in personal property. See n. 6, supra.

       The transition provisions of the 1910 statute, § 14, 36 Stat. 842, are, in substance, the same as those of the 1978 Act. Pub. L. 95-598, Title IV, §§ 402, 403(a), 92 Stat. 2682, 2683.

        Claridge Apartments Co. v. Commissioner, 323 U. S. 141 (1944), involved rights to certain tax benefits, not to property rights. Dickinson Industrial Site, Inc. v. Cowan, 309 U. S. 382, 383 (1940), dealt with the application of new procedural rules to a bankruptcy proceeding that was pending when the new statute was enacted. Allowing an appeal to the Circuit Court of Appeals rather than the District Court in that case did not eliminate any property rights. Carpenter v. Wabash R. Co., 309 U. S. 23 (1940), involved a provision giving personal injury judgments the status of operating expenses and thus priority over mortgages in ongoing railroad reorganizations. Although that statute may have disadvantaged the mortgagees by reducing the amount of cash available to pay their notes, it did not affect their property right in the collateral securing the mortgages. McFaddin v. Evans-Snider-Buel Co., 185 U. S. 505 (1902), considered a curative statute providing the methods by which valid mortgages could be created in the Indian Territory. The Legal Tender Cases, 12 Wall. 457, 549-550 (1871), decided only that debts could be paid in legal tender as defined by Congress at the time of payment without impairing the obligation of contracts.

       Because all of the liens at issue in this case were established before the enactment date we have no occasion to consider whether § 522(f)(2) should be applied to liens established after Congress passed the Act, but before it became effective.

       “When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’. . . Obviously there is danger that the courts’ conclusion as to legislative purpose will be unconsciously influenced by the judges’ own views or by factors not considered by the enacting body. A lively appreciation of the danger is the best assurance of escape from its threat but hardly justifies an acceptance of a literal interpretation dogma which withholds from the courts available information for reaching a correct conclusion. ... A few words of general connotation appearing in the text of statutes should not be given a wide meaning, contrary to a settled policy, ‘excepting as a different purpose is plainly shown.’ ” United States v. American Trucking Assns., Inc., 310 U. S. 534, 543-544 (1940) (footnotes omitted).


author: Per Curiam.

text:
    GILLETTE CO. v. MINER
    No. 81-1493.
    Argued November 10, 1982
    Decided December 6, 1982

      Arthur R. Miller argued the cause for petitioner. With him on the briefs were H. Blair White, Russell M. Baird, George A. Platz, and James P. Connolly.

      Robert S. Atkins argued the cause for respondent. With him on the brief were Kenneth P. Ross, Paul Bernstein, and Harry G. Fins

      Briefs of amici curiae urging reversal were filed by Harold D. Shapiro and Duane C. Quaint for the National Association of Independent Insurers et al.; by Joseph D. Alviani and Wayne S. Henderson for the New England Legal Foundation; and by Thomas J. Brandi and C. Delos Putz, Jr., for the plaintiffs in the “Daikon Shield” IUD Products Liability Litigation et al.
      Briefs of amici curiae urging affirmance were filed by Paul P. Bie-bel, Jr., First Assistant Attorney General of Illinois, and Kathleen Nogan Morrison and William P. Oberhardt, Assistant Attorneys General, for Tyrone C. Fahner, Attorney General of Illinois, et al.; and by Alan B. Morrison and Frederic Townsend for Public Citizen.

        David B. Kahn, William J. Harte, and Kevin M. Forde filed a brief for the Consumer Coalition as amicus curiae.

   Per Curiam.

There being no final judgment, the writ of certiorari is dismissed for want of jurisdiction.