author: Justice Marshall

text:
    VAN CAUWENBERGHE v. BIARD
    No. 87-336.
    Argued March 21, 1988
    Decided June 13, 1988

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

      John G. Kester argued the cause and filed briefs for petitioner.

      Thomas C. Walsh argued the cause for respondent. With him on the brief were Michael G. Diggers and Percy Anderson.

   Justice Marshall

delivered the opinion of the Court.

This case requires us to determine whether two types of orders by a district court are immediately appealable under 28 U. S. C. § 1291: first, an order denying a motion to dismiss based on an extradited person’s claim that he is immune from civil service of process; and second, an order denying a motion to dismiss on the ground of forum non conveniens.

W

This case arises from a dispute over a loan. Petitioner, a real estate broker in Brussels, encouraged respondent, also a Brussels resident, to meet with one Alan Blair in the United States to discuss a real estate investment. Blair is a resident of Los Angeles. Following a business trip to Atlanta, respondent traveled to Los Angeles where he met petitioner, Blair, and others, to talk about the investment. Blair described a real estate partnership called Three B Investment Associates, which was renovating a townhouse complex outside Kansas City known as Concorde Bridge Townhouses. At petitioner’s urging, respondent agreed to lend the partnership $1 million for three years at 20% per annum interest, secured by a mortgage on the Concorde Bridge complex. At the time, the partnership did not have title to the Concorde Bridge complex, but it held a contract to purchase the complex and had made a substantial deposit.

The partnership, after making some scheduled payments, eventually defaulted on its promissory note to respondent. The mortgage proved worthless because the partnership had not acquired title to the Concorde Bridge complex. Respondent retained American counsel, claiming that he had been misled into believing that the partnership held title to the Concorde Bridge Townhouses at the time of the loan. Soon thereafter, United States prosecutors became involved in the controversy. In October 1984, petitioner, Blair, and another American were indicted in the Central District of California on charges of wire fraud and causing the interstate transportation of a victim of fraud. The indictment charged that the three defendants had fraudulently induced respondent to lend them $1 million by falsely representing that they owned the Concorde Bridge complex through the real estate partnership.

While on a trip to Geneva, petitioner was arrested pursuant to a request from the United States Department of Justice under the applicable extradition treaty with Switzerland. See Treaty between the United States and Switzerland for the Extradition of Criminals, May 14, 1900, 31 Stat. 1928, T. S. No. 354 (1900). Petitioner was extradited and delivered to Los Angeles by United States Marshals after legal proceedings in Swiss courts. Following a jury trial, petitioner was found guilty on one count of wire fraud and one count of causing the interstate transportation of a victim of fraud. On January 22, 1986, petitioner was sentenced to a prison term of one year and one day, which was satisfied by the time he already had spent in pretrial confinement. The trial court also ordered petitioner to pay respondent restitution of $34,501.26 and placed him on probation. Petitioner was ordered not to leave the United States until the restitution order was satisfied. The conviction was affirmed by the Court of Appeals. United States v. Van Cauwenberghe, 827 F. 2d 424 (CA9 1987), cert. denied, 484 U. S. 1042 (1988).

On November 12, 1985, one week before petitioner’s criminal trial commenced, respondent filed a civil suit against petitioner, Blair, and others in the District Court for the Central District of California. The complaint asserted a civil Racketeer Influenced and Corrupt Organizations (RICO) claim, a common-law claim of fraud, and other pendent state-law claims arising out of the defaulted loan. On February 5, 1986, about two weeks after his sentencing, petitioner was served with the summons and complaint as he was arriving at the office of his probation officer to keep a scheduled appointment. Petitioner moved to dismiss the suit on two separate grounds. First, he argued that because his presence in the United States was a result of extradition, he was immune from civil process. Second, petitioner argued that the complaint should be dismissed on the ground of forum non conveniens. The District Court summarily denied both motions. App. 221, Biard v. Blair, No. CV 85-7378 JSL (Nov. 17, 1986). The Court of Appeals dismissed petitioner’s appeal for lack of jurisdiction in a one-line order, citing this Court’s decisions in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), and Mitchell v. Forsyth, 472 U. S. 511 (1985). App. 234, No. 86-6735 (CA9, July 7, 1987). We granted certiorari, 484 U. S. 942 (1987), and we now affirm.

II

The courts of appeals have jurisdiction under 28 U. S. C. §1291 of appeals “from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” A party generally may not take an appeal under § 1291 until there has been a decision by the district court that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945). In Cohen v. Beneficial Industrial Loan Corp., supra, however, we recognized a “small class” of decisions that are immediately appealable under § 1291 even though the decision has not terminated the proceedings in the district court. 337 U. S., at 546. The Court stated that a decision is final and appealable for purposes of § 1291 if it “finally determined] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Ibid. The Court refined the “collateral order” doctrine of Cohen in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978). In Coopers & Lybrand, the Court held that to come within the collateral order doctrine of Cohen, the order must satisfy each of three conditions: it must (1) “conclusively determine the disputed question,” (2) “resolve an important issue completely separate from the merits of the action,” and (3) “be effectively unreviewable on appeal from a final judgment.” 437 U. S., at 468 (footnote omitted).

As petitioner acknowledges, the order of the District Court denying petitioner’s motion to dismiss on grounds of immunity from civil process or forum non conveniens did not end the litigation on the merits. Therefore, the order is appeal-able as to either ground only if the three requirements set out in Coopers & Lybrand are met.

A

In asserting the appealability of his claim of immunity from civil process, petitioner principally relies on this Court’s decision in Mitchell v. Forsyth, supra. The Court held in Mitchell that the denial of a claim of qualified immunity by the Attorney General was immediately appealable under the collateral order doctrine. The crucial issue in Mitchell was whether the order was effectively unreviewable on appeal from final judgment. See id., at 525. In holding that such an order was effectively unreviewable, the Court reasoned that an “essential attribute” of qualified immunity is “an entitlement not to stand trial under certain circumstances,” and thus is “an immunity from suit rather than a mere defense to liability.” Id., at 525, 526. As with absolute immunity, the Court concluded, “[the entitlement] is effectively lost if a case is erroneously permitted to go to trial.” Id., at 526.

Petitioner argues that under United States v. Rauscher, 119 U. S. 407 (1886), as well as under federal extradition statutes and the extradition treaty between the United States and Switzerland, he is immune from civil service of process while his presence in the United States is compelled by extradition for criminal charges. Petitioner further contends that his immunity under Rauscher, like the immunity in Mitchell, entails the right not to stand trial, which cannot be effectively vindicated on appeal from final judgment. In Rauscher, the Court stated the general “principle of specialty” in federal extradition law:

“[A] person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.” 119 U. S., at 430.

Petitioner argues that the principle of specialty requires not merely that an extradited person be immune from criminal prosecutions other than the offenses for which he was extradited, but that he be generally “free from any judicial interference,” including civil suit. Brief for Petitioner 18.

The issue on which we granted certiorari, however, and on which the Court of Appeals based its decision, is not whether petitioner’s underlying claim of immunity is meritorious, but whether the denial of petitioner’s motion to dismiss on grounds of immunity from service of process is immediately appeal-able. For purposes of determining appealability, therefore, we will assume, but do not decide, that petitioner has presented a substantial claim of immunity from civil service of process that warrants appellate consideration. Making this assumption, we conclude that petitioner’s claim of immunity from service is effectively reviewable on appeal from final judgment, and thus is not an immediately appealable collateral order under Cohen and Coopers & Lybrand.

The critical question, following Mitchell, is whether “the essence” of the claimed right is a right not to stand trial. Mitchell, 472 U. S., at 525. This question is difficult because in some sense, all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial. But the final-judgment rule requires that except in certain narrow circumstances in which the right would be “irretrievably lost” absent an immediate appeal, Richardson-Merrell Inc. v. Roller, 472 U. S. 424, 431 (1985), litigants must abide by the district court’s judgments, and suffer the concomitant burden of a trial, until the end of proceedings before gaining appellate review. As the Court stated in United States v. MacDonald, 435 U. S. 850, 860, n. 7 (1978):

“Admittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial.”

Because of the important interests furthered by the final-judgment rule, see n. 3, supra, and the ease with which certain pretrial claims for dismissal may be alleged to entail the right not to stand trial, we should examine the nature of the right asserted with special care to determine whether an essential aspect of the claim is the right to be free of the burdens of a trial.

We believe that even if the principle of specialty shields petitioner from service of process in a civil suit while he is detained in the United States following his extradition and conviction — an issue on which we express no opinion — the right not to be burdened with a civil trial itself is not an essential aspect of this protection. First, the principle of specialty fundamentally bears on treaty obligations between states; the principle operates to ensure that the receiving state does not abuse the extradition processes of the extraditing state. See Rauscher, supra, at 419-420; 1 M. Bassiouni, International Extradition: United States Law and Practice, ch. 7, § 7, pp. 360-361 (2d ed. 1987). The conduct of a civil trial, prior to any attempt to subject the defendant to a binding judgment of the court, does not significantly implicate the receiving state’s obligation under the doctrine. Unlike a criminal prosecution, in which the coercive power of the state is immediately brought to bear, the state’s involvement in the conduct of a private civil suit is minimal. The state’s role is simply to provide a forum for the resolution of a private dispute. In the absence of an explicit agreement obligating the United States to protect the extradited person from the burdens of a civil suit, we believe that there is little potential that the extraditing state, in this case Switzerland, will view the mere conduct of a private civil trial as a breach of an obligation by the United States not to abuse the extradition process.

In addition, to the extent that the principle of specialty protects an extradited person from the exercise of coercive power by the receiving state on matters not anticipated by the extradition, the defense of a civil, suit does not significantly restrict a defendant’s liberty. Service of process merely requires that a defendant appear through an attorney and file an answer to the complaint to avoid default. There is no possibility that the defendant will be subject to pretrial detention or be required to post bail. The defendant is not even compelled to be present at trial. We therefore conclude that a right not to stand trial in a civil suit is not an essential aspect of a claim of immunity under the principle of specialty.

Given that the principle of specialty provides no independent support for petitioner’s claim that he has a right not to stand trial, the question becomes whether such a right is entailed in the mere assertion that the district court lacks personal jurisdiction because of immunity from service of process. Cf. Rauscher, 119 U. S., at 433 (“[Court] did not have jurisdiction of the person at that time”). In the context of due process restrictions on the exercise of personal jurisdiction, this Court has recognized that the individual interest protected is in “not being subject to the binding judgments of a forum with which [the defendant] has established no meaningful ‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 471-472 (1985), quoting International Shoe Co. v. Washington, 326 U. S. 310, 319 (1945). Similarly, we believe petitioner’s challenge to the District Court’s exercise of personal jurisdiction because he is immune from civil process should be characterized as the right not to be subject to a binding judgment of the court. Because the right not to be subject to a binding judgment may be effectively vindicated following final judgment, we have held that the denial of a claim of lack of jurisdiction is not an immediately appealable collateral order. See Catlin v. United States, 324 U. S., at 236. The Court of Appeals was therefore correct to conclude that the District Court’s denial of petitioner’s motion to dismiss on the ground of immunity from civil process is not immediately appealable.

B

Petitioner also argues that the District Court’s order denying the motion to dismiss on the ground of forum non con-veniens falls within the collateral order doctrine of Cohen and thus is immediately appealable under § 1291. We conclude, however, as have the majority of the Courts of Appeals that have considered the issue, that the question of the convenience of the forum is not “completely separate from the merits of the action,” Coopers & Lybrand, 437 U. S., at 468, and thus is not immediately appealable as of right.

The requirement that the order be completely separate from the merits is “a distillation of the principle that there should not be piecemeal review of ‘steps towards final judgment in which they will merge.’ ” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 12, n. 13 (1983), quoting Cohen, 337 U. S., at 546. Allowing appeals from interlocutory orders that involve considerations enmeshed in the merits of the dispute would waste judicial resources by requiring repetitive appellate review of substantive questions in the case. In Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508 (1947), the Court described various “[i]m-portant considerations” for district courts to balance in deciding whether a particular forum is so inconvenient for the defendant as to warrant dismissal. We believe these considerations make clear that in assessing a forum non conveniens motion, the district court generally becomes entangled in the merits of the underlying dispute.

The Court in Gulf Oil stated that district courts must look into “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling . . . witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Ibid. To examine “the relative ease of access to sources of proof,” and the availability of witnesses, the district court must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of action and to any potential defenses to the action. Public interest factors relevant to a forum non conveniens determination — such as the “local interest in having localized controversies decided at home” and the interest in having “the trial of a diversity case in a forum that is at home with the state law that must govern the case,” id., at 509 — also thrust the court into the merits of the underlying dispute. To evaluate these factors, the court must consider the locus of the alleged culpable conduct, often a disputed issue, and the connection of that conduct to the plaintiff’s chosen forum. Cf. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 259-260 (1981).

This list of considerations to be balanced is by no means exhaustive, and some factors may not be relevant in the context of a particular case. Moreover, the district court’s inquiry-does not necessarily require extensive investigation, and may be resolved on affidavits presented by the parties. See id., at 258-259. As we previously have recognized, the district court is accorded substantial flexibility in evaluating a forum non conveniens motion, id., at 249, and “[e]ach case turns on its facts.” Williams v. Green Bay & Western R. Co., 326 U. S. 549, 557 (1946). It is thus undoubtedly true that in certain cases, the forum non conveniens determination will not require significant inquiry.into the facts and legal issues presented by a case, and an immediate appeal might result in substantial savings of time and expense for both the litigants and the courts. In fashioning a rule of appealability under § 1291, however, we look to categories of cases, not to particular injustices. See Carroll v. United States, 354 U. S. 394, 405 (1957) (“Appeal rights cannot depend on the facts of a particular case”); United States v. MacDonald, 435 U. S., at 857-858, n. 6. We believe that in the main, the issues that arise in forum non conveniens determinations will substantially overlap factual and legal issues of the underlying dispute, making such determinations unsuited for immediate appeal as of right under § 1291.

Our conclusion that the denial of a motion to dismiss on the ground of forum non conveniens is not appealable under § 1291 is fortified by the availability of interlocutory review pursuant to 28 U. S.C § 1292(b). Under § 1292(b), a district court may certify a nonfinal order for interlocutory review when the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal from the order may materially advance the ultimate termination of the litigation.” A court of appeals may then, in its discretion, determine whether the order warrants, prompt review. See Coopers & Lybrand, 437 U. S., at 474-475. Section 1292(b) therefore provides an avenue for review of forum non conveniens determinations in appropriate cases.

Ill

We hold that neither an order denying a motion to dismiss on grounds that an extradited person is immune from civil process, nor an order denying a motion to dismiss on the ground of forum non conveniens, is a collateral order subject to appeal as a final judgment under 28 U. S. C. § 1291. The Court of Appeals therefore lacked jurisdiction to consider petitioner’s appeal. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

       Petitioner’s probation order has since been modified and he has returned to Belgium after having provided security for the payment of the restitution.

       Although petitioner did not make a general appearance, the District Court proceeded with the case after the appeal was filed with the Court of Appeals. The District Court granted respondent’s motion for summary judgment and entered judgment for respondent on the RICO claim for treble damages of $1.8 million, plus attorney’s fees of $75,000. Biard v. Blair, No. CV 85-7378 JSL (JRx) (Apr. 6, 1987), App. to Brief for Respondents, A-3.

       The purposes behind the rule that a party must ordinarily raise all claims of error in a single appeal following final judgment are by now well known:
      “[The rule] emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of ‘avoiding] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.’” Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981), quoting Cobbledick v. United States, 309 U. S. 323, 325 (1940).

       Petitioner does not dispute that neither the extradition treaty with Switzerland, Treaty between the United States and Switzerland for the Extradition of Criminals, May 14, 1900, 31 Stat. 1928, T. S. No. 354 (1900), nor the relevant federal statutes governing extradition matters, see 18 U. S. C. §§ 3186, 3192, deal explicitly with the protection of an extradited person from civil suit.

       As petitioner acknowledges, if he had been properly served in Belgium or Switzerland prior to his extradition, or had been served while in the United States on other business, then he could rightly have been compelled to defend respondent’s civil suit. Petitioner thus does not contend that he never can be haled into court on the same complaint in the same forum, but argues that he is immune from service of process at this time and in this manner, “by taking advantage of an extraditee’s forced presence in this country.” See Reply Brief for Petitioner 5.

       See Carlenstolpe v. Merck & Co., 819 F. 2d 33, 36 (CA2 1987) (“[T]he determining factors in a forum non conveniens motion are ‘enmeshed’ in the underlying cause of action”); Partrederiet Treasure Saga v. Joy Manufacturing Co., 804 F. 2d 308, 310 (CA5 1986) (same); Rosenstein v. Merrell Dow Pharmaceuticals, 769 F. 2d 352, 354 (CA6 1985) (same); Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F. 2d 190, 195 (CA3 1983) (same). Only one Circuit has held that the denial of a motion to dismiss on the ground of forum non conveniens is immediately appealable under 28 U. S. C. § 1291. See Hodson v. A. H. Robins Co., 715 F. 2d 142, 145, n. 2 (CA4 1983).

       Petitioner argues that the forum non conveniens determination in this ease is especially worthy of immediate review because the District Court disposed of the motion summarily instead of making factual findings and articulating reasons for its decision. Petitioner essentially claims that the District Court’s failure to explain its determination in this case is a clear abuse of discretion, and such clear errors should be promptly appealable. For the reasons stated in the text, we refuse to fashion an exception from the general rule of nonappealibility for what petitioner describes as “facially apparent reversible error,” Brief for Petitioner 35. Cf. United States v. MacDonald, 435 U. S., at 857-858, n. 6; Coopers & Lybrand v. Livesay, 437 U. S. 463, 476 (1978).


source: Caselaw Access Project

license: Public Domain

text:
    BERKOVITZ et al. v. UNITED STATES
    No. 87-498.
    Argued April 19, 1988
    Decided June 13, 1988

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

      Ellen M. Viakley argued the cause for petitioners. With her on the briefs were Gary S. Gildin and Paul R. Friedman.

      Michael K. Kellogg argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Ayer, John F. Cordes, William Cole, Thomas Scarlett, and Ann H. Wion.

        Lloyd N. Cutler, James Robertson, and Ronald J. Greene filed a brief for Lederle Laboratories as amicus curiae.

   Justice Marshall

delivered the opinion of the Court.

The question in this case is whether the discretionary function exception of the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. § 2680(a), bars a suit based on the Government’s licensing of an oral polio vaccine and on its subsequent approval of the release of a specific lot of that vaccine to the public.

I

On May 10, 1979, Kevan Berkovitz, then a 2-month-old infant, ingested a dose of Orimune, an oral polio vaccine manufactured by Lederle Laboratories. Within one month, he contracted a severe case of polio. The disease left Berkovitz almost completely paralyzed and unable to breathe without the assistance of a respirator. The Communicable Disease Center, an agency of the Federal Government, determined that Berkovitz had contracted polio from the vaccine.

Berkovitz, joined by his parents as guardians, subsequently filed suit against the United States in Federal District Court. The complaint alleged that the United States was liable for his injuries under the FTCA, 28 U. S. C. §§ 1346(b), 2674, because the Division of Biologic Standards (DBS), then a part of the National Institutes of Health, had acted wrongfully in licensing Lederle Laboratories to produce Orimune and because the Bureau of Biologies of the Food and Drug Administration (FDA) had acted wrongfully in approving release to the public of the particular lot of vaccine containing Berkovitz’s dose. According to petitioners, these actions violated federal law and policy regarding the inspection and approval of polio vaccines.

The Government moved to dismiss the suit for lack of subject-matter jurisdiction on the ground that the agency actions fell within the discretionary function exception of the FTCA. The District Court denied this motion, concluding that neither the licensing of Orimune nor the release of a specific lot of that vaccine to the public was a “discretionary function” within the meaning of the FTCA. Civ. Action No. 84-2893 (WD Pa., Apr. 30, 1986). At the Government’s request, the District Court certified its decision for immediate appeal to the Third Circuit pursuant to 28 U. S. C. § 1292(b), and the Court of Appeals accepted jurisdiction.

A divided panel of the Court of Appeals reversed. 822 F. 2d 1322 (1987). The court initially rejected the Government’s argument that the discretionary function exception bars all claims arising out of the regulatory activities of federal agencies. The court stated that “the discretionary function exception-is inapplicable to non-discretionary regulatory actions,” id., at 1328, and noted that employees of regulatory agencies have no discretion to violate the command of federal statutes or regulations. Contrary to petitioners’ claim, however, the court held that federal law imposed no duties on federal agencies with respect to the licensing of polio virus vaccines or the approval of the distribution of particular vaccine lots to the public. Likening the applicable regulatory scheme to the scheme found to confer discretionary regulatory authority in United States v. Varig Airlines, 467 U. S. 797 (1984), the court concluded that the licensing and release of polio vaccines were wholly discretionary actions and, as such, could not form the basis for suit against the United States. A dissenting judge argued that the relevant statutes and regulations obligated the DBS to require the submission of test data relating to a vaccine from the manufacturer and to deny a license when the test data showed that the vaccine failed to conform with applicable safety standards. Reading the complaint in this case as alleging a failure on the part of the DBS to act in accordance with these directives, the dissenting judge concluded that the discretionary function exception did not bar petitioners’ suit.

We granted certiorari, 484 U. S. 1003 (1988), to resolve a conflict in the Circuits regarding the effect of the discretionary function exception on claims arising from the Government’s regulation of polio vaccines. Compare 822 F. 2d 1322, supra, with Baker v. United States, 817 F. 2d 560, 564-566 (CA9 1987) (holding that discretionary function exception did not bar suit alleging a negligent decision to license a polio vaccine); Loge v. United States, 662 F. 2d 1268, 1272-1273 (CA8 1981) (holding that discretionary function exception did not bar suit alleging negligence in both the licensing of a polio vaccine and the release of a particular vaccine lot). We now reverse the Third Circuit’s judgment.

HH J-H

The FTGA, 28 U. S. C. § 1346(b), generally authorizes suits against the United States for damages

“for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The Act includes a number of exceptions to this broad waiver of sovereign immunity. The exception relevant to this case provides that no liability shall lie for

“[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U. S. C. §2680(a).

This exception, as we stated in our most recent opinion on the subject, “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U. S., at 808.

The determination of whether the discretionary function exception bars a suit against the Government is guided by several established principles. This Court stated in Varig that “it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Id., at 813. In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. See Dalehite v. United States, 346 U. S. 15, 34 (1953) (stating that the exception protects “the discretion of the executive or the administrator to act according to one’s judgment of the best course”). Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. Cf. Westfall v. Erwin, 484 U. S. 292, 296-297 (1988) (recognizing that conduct that is not the product of independent judgment will be unaffected by threat of liability).

Moreover, assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress’ desire to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. Varig Airlines, supra, at 814. The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. See Dalehite v. United States, supra, at 36 (“Where there is room for policy judgment and decision there is discretion”). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.

This Court’s decision in Varig Airlines illustrates these propositions. The two cases resolved in that decision were tort suits by the victims of airplane accidents who alleged that the Federal Aviation Administration (FAA) had acted negligently in certifying certain airplanes for operation. The Court characterized the suits as challenging the FAA’s decision to certify the airplanes without first inspecting them and held that this decision was a discretionary act for which the Government was immune from liability. In reaching this result, the Court carefully reviewed the statutory and regulatory scheme governing the inspection and certification of airplanes. Congress had given the Secretary of Transportation broad authority to establish and implement a program for enforcing compliance with airplane safety standards. In the exercise of that authority, the FAA, as the Secretary’s designee, had devised a system of “spot-checking” airplanes for compliance. This Court first held that the establishment of that system was a discretionary function within the meaning of the FTCA because it represented a policy determination as to how best to “accommodat[e] the goal of air transportation safety and the reality of finite agency resources.” 467 U. S., at 820. The Court then stated that the discretionary function exception also protected “the acts of FAA employees in executing the ‘spot-check’ program” because under this program the employees “were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources.” Ibid. Thus, the Court held the challenged acts protected from liability because they were within the range of choice accorded by federal policy and law and were the results of policy determinations.

In restating and clarifying the scope of the discretionary function exception, we intend specifically to reject the Government’s argument, pressed both in this Court and the Court of Appeals, that the exception precludes liability for any and all acts arising out of the regulatory programs of federal agencies. That argument is rebutted first by the language of the exception, which protects “discretionary” functions, rather than “regulatory” functions. The significance of Congress’ choice of language is supported by the legislative history. ' As this Court previously has indicated, the relevant legislative materials demonstrate that the exception was designed to cover not all acts of regulatory agencies and their employees, but only such acts as are “discretionary” in nature. See Dalehite v. United States, supra, at 33-34. This coverage accords with Congress’ purpose in enacting the exception: to prevent “[j]udicial intervention in . . . the political, social, and economic judgments” of governmental-including regulatory — agencies. United States v. Varig Airlines, 467 U. S., at 820. Moreover, this Court twice before has rejected a variant of the Government’s position. See Indian Towing Co. v. United States, 350 U. S. 61, 64-65 (1955) (disapproving argument that FTCA precludes liability for the performance of “uniquely governmental functions”); Rayonier, Inc. v. United States, 352 U. S. 315, 318-319 (1957) (same). And in Varig, we ignored the precise argument the Government makes in this case, focusing instead on the particular nature of the regulatory conduct at issue. To the extent we have not already put the Government’s argument to rest, we do so now. The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment. The question in this case is whether the governmental activities challenged by petitioners are of this discretionary nature.

I — I HH HH

Petitioners suit raises two broad claims. First, petitioners assert that the DBS violated a federal statute and accompanying regulations in issuing a license to Lederle Laboratories to produce Orimune. Second, petitioners argue that the Bureau of Biologies of the FDA violated federal regulations and policy in approving the release of the particular lot of Orimune that contained Kevan Berkovitz’s dose. We examine each of these broad claims by reviewing the applicable regulatory scheme and petitioners’ specific allegations of agency wrongdoing. Because the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in petitioners’ complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate.

A

Under federal law, a manufacturer must receive a product license prior to marketing a brand of live oral polio vaccine. See 58 Stat. 702, as amended, 42 U. S. C. § 262(a). In order to become eligible for such a license, a manufacturer must first make a sample of the vaccine product. See 42 CFR §73.3 (Supp. 1964); 21 CFR §601.2 (1987). This process begins with the selection of an original virus strain. The manufacturer grows a seed virus from this strain; the seed virus is then used to produce monopools, portions of which are combined to form the consumer-level product. Federal regulations set forth safety criteria for the original strain, see 42 CFR § 73.110(b)(2) (Supp. 1964); 21 CFR § 630.10(b)(2) (1987), the seed virus, see 42 CFR §§ 73.110(b)(3), (4) (Supp. 1964); 21 CFR §§630.10(b)(3), (4) (1987), and the vaccine monopools, see 42 CFR §73.114 (Supp. 1964); 21 CFR §630.16 (1987). Under the regulations, the manufacturer must conduct a variety of tests to measure the safety of the product at each stage of the manufacturing process. See 42 CFR §§73.110, 73.114 (Supp. 1964); 21 CFR §§630.10, 630.16 (1987). Upon completion of the manufacturing process and the required testing, the manufacturer is required to submit an application for a product license to the DBS. See 42 CFR §73.3 (Supp. 1964); 21 CFR §601.2 (1987). In addition to this application, the manufacturer must submit data from the tests performed and a sample of the finished product. Ibid.

In deciding whether to issue a license, the DBS is required to comply with certain statutory and regulatory provisions. The Public Health Service Act provides:

“Licenses for the maintenance of establishments for the propagation or manufacture and preparation of products [including polio vaccines] may be issued only upon a showing that the establishment and the products for which a license is desired meet standards, designed to insure the continued safety, purity, and potency of such products, prescribed in regulations, and licenses for new products may be issued only upon a showing that they meet such standards. All such licenses shall be issued, suspended, and revoked as prescribed by regulations . . . .” §351(d), 58 Stat. 702-703, as amended, 42 U. S. C. § 262(d).

A regulation similarly provides that “[a] product license shall be issued only upon examination of the product and upon a determination that the product complies with the standards prescribed in the regulations . . . .” 42 CFR § 73.5(a) (Supp. 1964); see 21 CFR § 601.4 (1987). In addition, a regulation states that “[a]n application for license shall not be considered as filed” until the DBS receives the information and data regarding the product that the manufacturer is required to submit. 42 CFR § 73.3 (Supp. 1964); 21 CFR § 601.2 (1987). These statutory and regulatory provisions require the DBS, prior to issuing a product license, to receive all data the manufacturer is required to submit, to examine the product, and to make a determination that the product complies with safety standards.

Petitioners’ first allegation with regard to the licensing of Orimune is that the DBS issued a product license without first receiving data that the manufacturer must submit showing how the product, at the various stages of the manufacturing process, matched up against regulatory safety standards. See App. 12-13; Brief for Petitioners 5-6. The discretionary function exception does not bar a cause of action based on this allegation. The statute and regulations described above require, as a precondition to licensing, that the DBS receive certain test data from the manufacturer relating to the product’s compliance with regulatory standards. See § 351(d), 58 Stat. 702-703, as amended, 42 U. S. C. § 262(d) (providing that a license shall issue “only upon a showing” by the manufacturer); 42 CFR §73.3 (Supp. 1964); 21 CFR §601.2 (1987) (providing that application for license shall be deemed as filed only upon receipt of relevant test data). The DBS has no discretion to issue a license without first receiving the required test data; to do so would violate a specific statutory and regulatory directive. Accordingly, to the extent that petitioners’ licensing claim is based on a decision of the DBS to issue a license without having received the required test data, the discretionary function exception imposes no bar.

Petitioners’ other allegation regarding the licensing of Orimune is difficult to describe with precision. Petitioners contend that the DBS licensed Orimune even though the vaccine did not comply with certain regulatory safety standards. See App. 12; Brief for Petitioners 4-6. This charge may be understood in any of three ways. First, petitioners may mean that the DBS licensed Orimune without first making a determination as to whether the vaccine complied with regulatory standards. Second, petitioners may intend to argue that the DBS specifically found that Orimune failed to comply with certain regulatory standards and nonetheless issued a license for the vaccine’s manufacture. Third, petitioners may concede that the DBS made a determination of compliance, but allege that this determination was incorrect. Neither petitioners’ complaint nor their briefs and argument before this Court make entirely clear their theory of the case.

If petitioners aver that the DBS licensed Orimune either without determining whether the vaccine complied with regulatory standards or after determining that the vaccine failed to comply, the discretionary function exception does not bar the claim. Under the scheme governing the DBS’s regulation of polio vaccines, the DBS may not issue a license except upon an examination of the product and a determination that the product complies with all regulatory standards. See 42 CFR § 73.5(a) (Supp. 1964); 21 CFR §601.4 (1987). The agency has no discretion to deviate from this mandated procedure. Petitioners’ claim, if interpreted as alleging that the DBS licensed Orimune in the absence of a determination that the vaccine complied with regulatory standards, therefore does not challenge a discretionary function. Rather, the claim charges a failure on the part of the agency to perform its clear duty under federal law. When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply.

If petitioners’ claim is that the DBS made a determination that Orimune complied with regulatory standards, but that the determination was incorrect, the question of the applicability of the discretionary function exception requires a somewhat different analysis. In that event, the question turns on whether the manner and method of determining compliance with the safety standards at issue involve agency judgment of the kind protected by the discretionary function exception. Petitioners contend that the determination involves the application of objective scientific standards, see Brief for Petitioners 16-17, whereas the Government asserts that the determination incorporates considerable “policy judgment,” Brief for United States 36. In making these assertions, the parties have framed the issue appropriately; application of the discretionary function exception to the claim that the determination of compliance was incorrect hinges on whether the agency officials making that determination permissibly exercise policy choice. The parties, however, have not addressed this question in detail, and they have given us no indication of the way in which the DBS interprets and applies the regulations setting forth the criteria for compliance. Given that these regulations are particularly abstruse, we hesitate to decide the question on the scanty record before us. We therefore leave it to the District Court to decide, if petitioners choose to press this claim, whether agency officials appropriately exercise policy judgment in determining that a vaccine product complies with the relevant safety standards.

B

The regulatory scheme governing release of vaccine lots is distinct from that governing the issuance of licenses. The former set of regulations places an obligation on manufacturers to examine all vaccine lots prior to distribution to ensure that they comply with regulatory standards. See 21 CFR §610.1 (1978). These regulations, however, do not impose a corresponding duty on the Bureau of Biologies, Although the regulations empower the Bureau to examine any vaccine lot and prevent the distribution of a noncomplying lot, see 21 CFR § 610.2(a) (1978), they do not require the Bureau to take such action in all cases. The regulations generally allow the Bureau to determine the appropriate manner in which to regulate the release of vaccine lots, rather than mandating certain kinds of agency action. The regulatory scheme governing the release of vaccine lots is substantially similar in this respect to the scheme discussed in United States v. Varig Airlines, 467 U. S. 797 (1984).

Given this regulatory context, the discretionary function exception bars any claims that challenge the Bureau’s formulation of policy as to the appropriate way in which to regulate the release of vaccine lots. Cf. id., at 819-820 (holding that discretionary function exception barred claim challenging FAA’s decision to establish a spot-checking program). In addition, if the policies and programs formulated by the Bureau allow room for implementing officials to make independent policy judgments, the discretionary function exception protects the acts taken by those officials in the exercise of this discretion. Cf. id., at 820 (holding that discretionary function exception barred claim that employees charged with executing the FAA’s spot-checking program made negligent policy judgments respecting the proper inspection of airplanes). The discretionary function exception, however, does not apply if the acts complained of do not involve the permissible exercise of policy discretion. Thus, if the Bureau’s policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful. Cf. Indian Towing Co. v. United States, 350 U. S., at 69 (holding that a negligent failure to maintain a lighthouse in good working order subjected the Government to suit under the FTCA even though the initial decision to undertake and maintain lighthouse service was a discretionary policy judgment).

Viewed in light of these principles, petitioners’ claim regarding the release of the vaccine lot from which Ke'van Berkovitz received his dose survives the Government’s motion to dismiss. Petitioners allege that, under the authority granted by the regulations, the Bureau of Biologies has adopted a policy of testing all vaccine lots for compliance with safety standards and preventing the distribution to the public of any lots that fail to comply. Petitioners further allege that notwithstanding this policy, which allegedly leaves no room for implementing officials to exercise independent policy judgment, employees of the Bureau knowingly approved the release of a lot that did not comply with safety standards. See App. 13; Brief for Petitioners 20 — 21; Reply Brief for Petitioners 15-17. Thus, petitioners’ complaint is directed at a governmental action that allegedly involved no policy discretion. Petitioners, of course, have not proved their factual allegations, but they are not required to do so on a motion to dismiss. If those allegations are correct — that is, if the Bureau’s policy did not allow the official who took the challenged action to release a noncomplying lot on the basis of policy considerations — the discretionary function exception does not bar the claim. Because petitioners may yet show, on the basis of materials obtained in discovery or otherwise, that the conduct challenged here did not involve the permissible exercise of policy discretion, the invocation of the discretionary function exception to dismiss petitioners’ lot release claim was improper.

<1

For the foregoing reasons, the Court of Appeals erred in holding that the discretionary function exception required the dismissal of petitioners’ claims respecting the licensing of Orimune and the release of a particular vaccine lot. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Petitioners also sued Lederle Laboratories in a separate civil action. That suit was settled before the instant case was filed.

       There is currently no dispute in this case as to whether petitioners have stated a claim that falls within this general waiver of immunity. Although the Government raised this issue in its motion to dismiss petitioners’ suit, the District Court found that the complaint stated a claim under the relevant state law, and the Government declined to request certification of this decision for immediate appeal.

       The decision in Indian Towing Co. v. United States, 350 U. S. 61 (1955), also illuminates the appropriate scope of the discretionary function exception. The plaintiff in that case sued the Government for failing to maintain a lighthouse in good working order. The Court stated that the initial decision to undertake and maintain lighthouse service was a discretionary judgment. See id., at 69. The Court held, however, that the failure to maintain the lighthouse in good condition subjected the Government to suit under the FTCA. See ibid. The latter course of conduct did not involve any permissible exercise of policy judgment.

       The House of Representatives Report on the final version of the FTCA discussed the application of the discretionary function exception to the activities of regulatory agencies by stating that it would preclude application of the Act to
      “a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon an alleged abuse of discretionary authority by an officer or employee, whether or not negligence is alleged to have been involved. . . . The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion. Nor is it desirable or intended that the constitutionality of legislation, or the legality of a rule or regulation should be tested through the medium of a damage suit for tort. However, the common-law torts of employees of regulatory agencies would be included within the scope of the bill to the same extent as torts of nonregulatory agencies.” H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945).
      This passage illustrates that Congress intended the discretionary function exception to apply to the discretionary acts of regulators, rather than to all regulatory acts.

       The Government’s position in this case at times appears to replicate precisely the position expressly rejected in Indian Tomng and Rayonier. See Brief for United States 20 (arguing that Congress intended to preserve immunity for “core governmental function[s]”); id., at 16.

       The parties to this case also have disputed in their briefs and arguments before this Court the applicability of the discretionary function exception to a claim alleging that the DBS wrongfully chose not to revoke Lederle Laboratories’ license to manufacture Orimune. Neither the Court of Appeals nor the District Court specifically addressed this issue. Moreover, petitioners did not raise the issue in their petition for a writ of certiorari. We accordingly do not consider or decide the question whether the discretionary function exception bars a claim against the Government for failure to revoke a license to manufacture a polio vaccine.

       The DBS issued a license to Lederle Laboratories to produce Orimune in 1963. The first citation in the text is to the regulation in effect at that time. Where the regulation has remained substantially in the same form, a parallel citation is given to the current regulations.
      Manufacturers are required to obtain an establishment license in addition to the product license. See 42 CFR §§ 73.2-73.4 (Supp. 1964); 21 CFR 601.1-601.2, 601.10 (1987). Petitioners have not challenged the issuance of an establishment license to Lederle Laboratoriés.

       In 1972, the DBS was transferred from the National Institutes of Health to the FDA and renamed the Bureau of Biologies. See 37 Fed. Reg. 12865 (1972). In 1984, the Bureau of Biologies was renamed the Office of Biologies Research and Review. See 49 Fed. Reg. 23834 (1984). The regulations have been amended accordingly.

       Petitioners point to two specific regulatory standards that the product allegedly failed to satisfy. First, petitioners claim that an original virus strain from which the vaccine was made did not comply with the requirement that the strain be “free of harmful effect upon administration in the recommended dosage to at least 100,000 people susceptible to poliomyelitis.” 42 CFR §73.110(b)(2)(i) (Supp. 1964); see 21 CFR § 630.10(b)(2)(i) (1987). Second, petitioners assert that the strain, a seed virus, a vaccine monopool, and the ultimate vaccine product failed to comply with the regulatory scheme’s neurovirulence requirement. See 42 CFR §§ 73.110(b) (2)(ii), 73.110(b)(4), 73.114(b)(1) (Supp. 1964); 21 CFR §§ 630.110(b)(2)(ii), 630.110(b)(4), 630.16(b)(1) (1987). Neuro virulence is the capacity of an infectious agent to produce pathologic effects on the central nervous system. In this context, it refers to the vaccine’s ability to cause paralytic poliomyelitis. The neurovirulence of a vaccine product is tested by injecting the product into monkeys. The product meets the neurovirulence criterion only if a specified number of the animals survive and a “comparative analysis” demonstrates that the neurovirulence of the vaccine product “does not exceed” the neurovirulenee of a reference product previously selected by the agency. 42 CFR §73.114(b)(l)(iii) (Supp. 1964); 21 CFR § 630.16(b)(l)(iii) (1987).

       Even the Government conceded at oral argument that the DBS has no discretion to issue a product license without an examination of the product and a determination that the product complies with regulatory standards. The transcript reads:
      “QUESTION: [Supposing the DBS] did not make any examination of the application at all, or any determination other than some papers have been filed and I will now issue the license.
      “Would that comply with the regulation?
      “[COUNSEL]: No, it would not comply with the regulation.
      “QUESTION: It would violate a mandatory duty . . . , wouldn’t it?
      “[COUNSEL]: In the extreme instance you are talking about ... , it would definitely violate that regulation.” Tr. of Oral Arg. 34-35.

       As noted, see n. 9, supra, the regulatory standards that petitioners claim were not satisfied in this case are the neurovirulence criterion and the requirement that virus strains be free from harmful effect. The question presented is thus whether the determination that a vaccine product complies with each of these regulatory standards involves judgment of the kind that the discretionary function exception protects.

       The citation is to the regulation in effect at the time Lederle Laboratories released the lot of Orimune containing Kevan Berkovitz’s dose. None of the regulations governing the release of vaccine lots has changed significantly since that time. The current regulations dealing with this subject have the same title and section numbers as the regulations cited in the text.

       The Government’s own argument before this Court provides some support for petitioners’ allegation regarding the Bureau’s policy. The Government indicated that the Bureau reviews each lot of vaccine and decides whether it complies with safety standards. See Tr. of Oral Arg. 42. The Government further suggested that if an employee knew that a lot did not comply with these standards, he would have no discretion to approve the release of the lot. See id., at 31-32.


author:
Justice Blackmun
      Justice White,

text:
    LOEFFLER v. FRANK, POSTMASTER GENERAL OF THE UNITED STATES
    No. 86-1431.
    Argued January 11, 1988
    Decided June 13, 1988

      Blackmun, J., delivered the opinion of the Court, in which BRENNAN, Marshall, Stevens, and Scalia, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 566. Kennedy, J., took no part in the consideration or decision of the case.

      Lisa S. Van Amburg argued the cause and filed briefs for petitioner.

      Charles A. Rothfeld argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy

      Solicitor General Ayer, John F. Daly, and Stephen E. Alpem.

        Julius LeVonne Chambers, Gail J. Wright, and Charles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.

   Justice Blackmun

delivered the opinion of the Court.

This case presents the question whether prejudgment interest may be awarded in a suit against the United States Postal Service brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq.

I

Petitioner Theodore J. Loeffler was discharged from his position as a rural letter carrier for the United States Postal Service. Petitioner appealed his termination to the Merit Systems Protection Board and, when his discharge was affirmed there, sought administrative relief from the Equal Employment Opportunity Commission. This, also, was without success. Contending that his discharge resulted from sex discrimination, petitioner subsequently brought this suit against the Postmaster General of the United States in his official capacity, pursuant to § 717 of Title VII, as amended, 42 U. S. C. §2000e-16. After a bench trial, the United States District Court for the Eastern District of Missouri concluded that petitioner was a victim of discrimination and ordered his reinstatement with backpay. App. to Pet. for Cert. A-26. Relying on a decision of its controlling court, Cross v. USPS, 733 F. 2d 1327, 1332 (CA8 1984) (en banc), cert. denied, 470 U. S. 1051 (1985), the District Court refused to award prejudgment interest. App. to Pet. for Cert. A-21. (In Cross, an equally divided Court of Appeals had affirmed the same District Judge’s conclusion that sovereign immunity barred an award of prejudgment interest in a Title VII suit against the Postal Service.)

The United States Court of Appeals for the Eighth Circuit affirmed the denial of prejudgment interest. Loeffler v. Carlin, 780 F. 2d 1365, 1370-1371 (1985). Concluding that the District Court’s reliance on Cross was “understandable and proper,” id., at 1370, the court stated: “If the question of prejudgment interest is to be reconsidered, it should be reconsidered by the Court en banc.” Id., at 1371.

Subsequently, the Eighth Circuit undertook that en banc reconsideration, and, by a 6-to-5 vote, affirmed the judgment of the District Court. Loeffler v. Tisch, 806 F. 2d 817 (1986). The majority adopted the reasoning of the majority of the original panel in Cross, 733 F. 2d 1327, which concluded that Congress had not waived the sovereign immunity of the Postal Service with regard to prejudgment interest in a Title VII suit. The majority found its conclusion “strongly reinforced” by this Court’s recent decision in Library of Congress v. Shaw, 478 U. S. 810 (1986), which the majority interpreted as “holding that Congress, in enacting Title VII, did not waive the Government’s immunity from interest.” 806 F. 2d, at 818. In the majority’s view, Congress’ provision in the 1970 Postal Reorganization Act, 39 U. S. C. § 401(1), that the Postal Service may “sue and be sued” was irrelevant to the question before it, because “a sue-and-be-sued clause does not expand the obligations of a federal entity in a suit brought pursuant to another statute that is itself a waiver of immunity and which constitutes an exclusive remedy.” 806 F. 2d, at 819.

The 5-judge dissent adopted the reasoning of the dissent in the Cross panel submission. That dissent had concluded that “limits on prejudgment interest have been imposed solely because of the barrier of sovereign immunity,” 733 F. 2d, at 1332, and that the sue-and-be-sued clause in the Postal Reorganization Act had eliminated that barrier in actions against the Postal Service. The dissent noted this Court’s observation in Shaw: “ ‘The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.’” 806 F. 2d, at 822, quoting Shaw, 478 U. S., at 317, n. 5. In the dissent’s view, the Postal Service fits within this exception and, therefore, “an award of prejudgment interest against the Postal Service under Title VII is not barred by sovereign immunity.” 806 F. 2d, at 823.

Because of a conflict with the views of the Eleventh Circuit expressed in Nagy v. USPS, 773 F. 2d 1190 (1985), we granted certiorari to decide whether, in a Title VII suit, prejudgment interest may be awarded against the Postal Service. Sub nom. Loeffler v. Tisch, 483 U. S. 1004 (1987).

H

>

The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U. S. 584, 586 (1941). Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In FHA v. Burr, 309 U. S. 242, 245 (1940), the Court explained:

“[S]uch waivers by Congress of governmental immunity . . . should be liberally construed. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to ‘sue and be sued,’ it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to ‘sue and be sued’ is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to ‘sue or be sued,’ that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.” (Footnote omitted.)

Accord, Franchise Tax Board of California v. USPS, 467 U. S. 512, 517-518 (1984); Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U. S. 81, 84-85 (1941); see also Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381 (1939). Encompassed within this liberal-construction rule is the principle “that the words ‘sue and be sued’ normally include the natural and appropriate incidents of legal proceedings.” J. G. Menihan Corp., 312 U. S., at 85.

In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil Co. v. United States, 267 U. S. 76 (1925), the Court reviewed a suit brought under § 5 of the Act of September 2,1914, ch. 293, 38 Stat. 711, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: “When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business.” 267 U. S., at 79. Accordingly, interest was allowed. Ibid. See also National Home for Disabled Volunteer Soldiers v. Parrish, 229 U. S. 494 (1913) (interest allowed against eleemosynary agency that Congress had authorized “to sue and be sued”). Cf. Library of Congress v. Shaw, 478 U. S., at 317, n. 5.

When Congress created the Postal Service in 1970, it empowered the Service “to sue and be sued in its official name.” 39 U. S. C. § 401(1). This sue-and-be-sued clause was a part of Congress’ general design that the Postal Service “be run more like a business than had its predecessor, the Post Office Department.” Franchise Tax Board of California v. US PS, 467 U. S., at 520. In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that “Congress has ‘launched [the Postal Service] into the commercial world,”’ ibid., the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service’s liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees’ wages had precisely the same effect on the Service’s ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service’s ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See id., at 520, and n. 14.

Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching “the Postal Service into the commercial world,” and including a sue-and-be-sued clause in its charter, Congress has cast off the Service’s “cloak of sovereignty” and given it the “status of a private commercial enterprise.” Shaw, 478 U. S., at 317, n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards.

None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the. Postal Service’s immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent with the Postal Reorganization Act, 39 U. S. C. § 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of “grave interference” with the Service’s operation. FHA v. Burr, 309 U. S., at 245. Finally, we find nothing in the statute or its legislative history to suggest that “it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense,” ibid., with regard to interest awards. To the- contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U. S. C. § 409, none of which is applicable here, the natural inference is that it did not intend other limitations to be implied.

Accordingly, we conclude that, at the Postal Service’s inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit.'

B

Respondent concedes, and apparently all the United States Courts of Appeals that have considered the question agree, that Title YII authorizes prejudgment interest as part of the backpay remedy in suits against private employers. This conclusion surely is correct. The backpay award authorized by § 706(g) of Title VII, as amended, 42 U. S. C. §2000e-5(g), is a manifestation of Congress’ intent to make “persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, 422 U. S. 405, 421 (1975). Prejudgment interest, of course, is “an element of complete compensation.” West Virginia v. United States, 479 U. S. 305, 310 (1987). Thus, since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress has waived the Postal Service’s immunity from such awards, it follows that respondent may be subjected to an interest award in this case.

Ill

A

In order to address respondent’s arguments, it is necessary to explain briefly the manner in which Title VII provides a cause of action to federal employees. As originally enacted in 1964, Title VII, by excluding federal entities from its definition of employer, see § 701(b) of Title VII, 42 U. S. C. §2000e(b), did not provide a cause of action to federal employees. Brown v. GSA, 425 U. S. 820, 825 (1976). In 1972, Congress amended Title VII by adding its § 717, which brought federal employees, including employees of the Postal Service, within the ambit of Title VII. Equal Employment Opportunity Act of 1972, 86 Stat. 111, 42 U. S. C. §2000e-16. In so doing, Congress intended to provide federal employees with “‘the full rights available in the courts as are granted to individuals in the private sector under Title VIL’ ” Chandler v. Roudebush, 425 U. S. 840, 841 (1976), quoting S. Rep. No. 92-415, p. 16 (1971). Section 717(a) mandates that all personnel actions affecting federal employees covered by that section “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-16(a). Section 717(b) provides a detailed administrative enforcement mechanism, and § 717(c) permits an aggrieved employee to file a civil action in federal district court, provided the employee has met certain requirements regarding exhaustion of administrative remedies. Thus, in enacting § 717, Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government’s immunity from suit. See Library of Congress v. Shaw, 478 U. S., at 319. The waiver of sovereign immunity effected by § 717, however, was a limited one. “In making the Government liable as a defendant under Title VII, . . . Congress did not waive the Government’s traditional immunity from interest.” Id., at 323.

Based on this background, respondent channels his attack into two principal arguments. First, respondent contends that the waiver of sovereign immunity effected by the “sue- and-be-sued” clause of the ^Postal Reorganization Act, 39 U. S. C. §401(1), has no bearing here, regardless of its scope. In respondent’s view, the only waiver of sovereign immunity relevant to a Title VII suit against the Postal Service is the waiver of sovereign immunity found in Title VII itself. Second, respondent argues that, even if the waiver of sovereign immunity provided by § 401 does control, the cause of action that § 717 affords to a Postal Service employee is distinct from the cause of action afforded a private-sector employee and does not provide a basis for an award of prejudgment interest. We examine these contentions in turn.

B

In support of his argument that the sue-and-bé-sued clause of the Postal Reorganization Act, 39 U. S. C. § 401(1), has no force in this case, respondent initially relies on Congress’ failure, at the time it created the Postal Service in 1970, to extend Postal Service employees a cause of action under Title VII. In respondent’s view, this failure constituted a decision to leave intact what respondent characterizes as the “explicit” decision of the Congress that enacted Title VII in 1964 to preserve the sovereign immunity of federal employers in Title VII suits. But the history of the Postal Reorganization Act discussed in n. 7, supra, with its emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress’ failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of these alternative remedies. The reason Postal Service employees could not bring an employment discrimination suit under Title VII in 1970 — indeed, the reason that federal employees generally could not do so— stemmed not from the Postal Reorganization Act, but from a restriction in Title VII itself: the exclusion of federal entities from the definition of the term “employer.” The Postal Reorganization Act is utterly silent as to Title VII. We reject the notion that Congress’ silence when it creates a new federal entity, with regard to a cause of action that is generally unavailable to federal employees, can be construed as a limitation on the waiver of that entity’s sovereign immunity effected by the inclusion of a sue-and-be-sued clause.

Respondent would find further support for his argument that the sue-and-be-sued clause is irrelevant to this case in the manner in which Congress extended a Title VII cause of action to federal employees in 1972. Specifically, respondent relies on a distinction between causes of action that may be asserted against commercial entities generally, as, for example a state garnishment statute, see Franchise Tax Board of California v. USPS, 467 U. S. 512 (1984), and causes of action, such as § 717 of Title VII, that contain special procedures and limitations applicable only to federal defendants. Respondent contends that while a sue-and-be-sued clause may apply to a suit against a federal entity in the former class of actions, it has no bearing in the latter. We are not persuaded by this argument for two reasons.

First, this is an argument for an implied exception to the waiver of sovereign immunity effected by a sue-and-be-sued clause. Yet respondent offers no reason for concluding that Congress intended his implied exception to be added to those that this Court articulated in FHA v. Burr, 309 U. S., at 245, and we see no reason why we should do so.

Second, when Congress intends the waiver of sovereign immunity in a new cause of action directed against federal entities to be exclusive, —in effect, to limit the force of “sue- and-be-sued” clauses — it has said so expressly. Congress’ waiver of the sovereign immunity of the United States for certain torts of federal employees, in the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346, 2671-2680, provides an example. Prior to the FTCA’s enactment, certain federal agencies were already suable in tort. Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to “place torts of ‘suable’ agencies of the United States upon precisely the same footing as torts of ‘nonsuable’ agencies.” H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through “sue- and-be-sued” clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, “sue- and-be-sued” agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time:

“The authority of any federal agency, to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.” 28 U. S. C. § 2679(a).

In contrast, neither the language of § 717 of Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue- and-be-sued clauses. Accordingly, we reject respondent’s contention that 39 U. S. C. §401(1) has no application here.

c

Respondent next argues that, even if the waiver of sovereign immunity effected by § 401(1) is controlling, an award of prejudgment interest is inappropriate because the statute that provides petitioner with his cause of action, § 717 of Title VII, does not authorize interest awards. Respondent starts from the premise that had Congress expressly stated that prejudgment interest is unavailable in actions under §717, the outcome of this case would be beyond dispute. Therefore, it is claimed, “[t]he fact that the ‘no-interest’ rule is not made explicit in the statute, but rather is a conclusion drawn by this Court in Shaw . . . , does not make the rule any less binding.” Brief for Respondent 16. This argument, in our view, misunderstands both the nature of the remedy § 717 affords and the basis of our holding in Shaw.

Without doubt, petitioner’s cause of action in this case is derived from §717. We do not disagree with respondent that, had §717 explicitly stated that the cause of action it provided did not include prejudgment interest, such interest would be unavailable in this case. But Congress made no express statement of that kind. To the contrary, Congress expressly incorporated in §717 provisions of Title VII that allow an interest award. Specifically, § 717(c), 42 U. S. C. § 2000e-16(c), provides that, after pursuing various mandatory administrative remedies, an unsatisfied §717 plaintiff “may file a civil action as provided in section 2000e-5 of this title,” which governs enforcement actions against private employers.

Thus, although petitioner’s cause of action under § 717 is circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a § 717 suit, once commenced, is delineated by the same provisions as a suit against a private employer. Most importantly for the purposes of this case, § 717(d) explicitly incorporates § 706(g) of Title VII into the cause of action provided. Section 706(g) allows a court to “order such affirmative action as may be appropriate, . . . including]. . . back pay ... , or any other equitable relief as the court deems appropriate.” 42 U. S. C. §2000e-5(g). This provision thus governs the remedies available in both a Title VII suit brought against a federal employer under § 717 and a Title VII suit brought against a private employer. Cf. Chandler v. Roudebush, 425 U. S., at 843-848. And, just as this section provides for prejudgment interest in a Title VII suit against a private employer, it provides for prejudgment interest in a Title VII suit brought under § 717.

Respondent’s view that Shaw stands for the proposition that § 717 implicitly states that prejudgment interest is unavailable in all suits brought under that section misunderstands the basis of our holding in that case. In Shaw, the Court faced the question whether § 706(k) of Title VII, 42 U. S. C. § 2000e-5(k), which provides that a party prevailing against the United States may recover attorney’s fees from the United States, waived the sovereign immunity of the Library of Congress with respect to interest on an attorney’s fees award. Unlike the Postal Service, the Library of Congress was not a “sue-and-be-sued” agency that Congress had “‘launched . . . into the commercial world,’” and thereby broadly waived sovereign immunity. Franchise Tax Board of California v. USPS, 467 U. S., at 520, quoting FHA v. Burr, 309 U. S., at 245. Thus, the starting point for our analysis was the “no-interest rule,” which is to the effect that, absent express consent by Congress, the United States is immune from interest awards. See Shaw, 478 U. S., at 314. The dispositive question was not whether Title VII provided a cause of action that would allow recovery of interest, but, rather, whether Title VII contained an express waiver of the Library of Congress’ immunity from interest. Because no such waiver is contained within Title VII, the no-interest rule barred recovery of interest from the Library of Congress on the plaintiff’s attorney’s fees award. This conclusion had nothing to do with the scope of a § 717 cause of action.

The Court expressly noted in Shaw: “The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.” 478 U. S., at 317, n. 5. In creating the Postal Service, Congress did just that, and therefore, the no-interest rule does not apply to it. Thus, the search for an express waiver of immunity from interest within Title VII, which is all that Shaw was about, is unnecessary in this case. As discussed above, §401 of the Postal Reorganization Act provides the waiver of sovereign immunity from interest awards against the Postal Service, and § 717 of Title VII provides the cause of action under which petitioner may recover interest.

IV

Accordingly, we conclude that interest may be awarded against the Postal Service in a Title VII suit. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice Kennedy took no part in the consideration or decision of this case.

Justice White,

with whom The Chief Justice and Justice O’Connor join, dissenting.

Essentially for the reasons stated by the en banc Court of Appeals below, I believe that prejudgment interest is not available in Title VII suits against the Postal Service. Accordingly, I respectfully dissent.

       Petitioner’s discharge arose from his practice of casing boxholder mail. “Boxholder” mail is third-class mail that does not bear the name and address of a particular individual but is given to the postal carrier in a single bundle for delivery to each current resident or possessor of a rural-delivery mailbox. The District Court explained: “ ‘Casing’ is the practice of inserting the boxholders in each separation of the delivery case in the post office work area prior to delivery, and then inserting the first or second class mail inside the boxholders so that the boxholders form a convenient sleeve for the rest of the pieces of mail and thus make delivery quicker and easier. The alternative to easing the boxholders is to carry them as separate bundles and insert them into each individual post box during delivery.” App. to Pet. for Cert. A-28.
      In 1979, pursuant to directives from Postal Service headquarters in Washington, D. C., all five rural carriers at the Chesterfield, Mo., Post Office, including petitioner, were instructed not to case the boxholders. The rule against casing was openly violated by petitioner and by two female rural carriers. Although all three carriers repeatedly ignored the rule, only petitioner was discharged, while the two female carriers were disciplined mildly or not at all.

       At the time this suit was filed, William F. Bolger, then Postmaster General, was the named defendant. While the case was pending on appeal, Bolger was succeeded as Postmaster General and as defendant by Paul N. Carlin and, subsequently, by Preston R. Tisch. After oral argument before this Court, Tisch was succeeded by Anthony M. Frank. General Frank has been substituted as respondent pursuant to this Court’s Rule 40.3.

       In Shaw, the Court held that sovereign immunity bars the payment of interest on attorney’s fees awarded against the Library of Congress under Title VII. The Court’s holding came “against the backdrop of the no-interest rule,” Shaw, 478 U. S., at 319, which provides: “Apart from constitutional requirements, in the absence of specific provision by contract or statute, or ‘express consent ... by Congress,’ interest does not run on a claim against the United States.” United States v. Louisiana, 446 U. S. 253, 264-265 (1980), quoting United States v. N. Y. Rayon Importing Co., 329 U. S. 654, 659 (1947).

       Section 409 provides in part:
      “(b) Unless otherwise provided in this title, the provisions of title 28 relating to service of process, venue, arid limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, . . . shall apply in like manner to suits in which the Postal Service, its officers, or employees are parties.
      “(c) The provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service.”

       See Brief for Respondent 9. See also Conway v. Electro Switch Corp., 825 F. 2d 593, 602 (CA1 1987); Green v. USX Cory., 843 F. 2d 1511, 1530 (CA3 1988); United States v. Gregory, 818 F. 2d 1114, 1118 (CA4), cert. denied, 484 U. S. 847 (1987); Parson v. Kaiser Aluminum & Chemical Corp., 727 F. 2d 473, 478 (CA5), cert. denied, 467 U. S. 1243 (1984); EEOC v. Wooster Brush Co. Emyloyees Relief Assn., 727 F. 2d 566, 578-579 (CA6 1984); Taylor v. Philips Industries, Inc., 593 F. 2d 783, 787 (CA7 1979); Washington v. Kroger Co., 671 F. 2d 1072, 1078 (CA8 1982); Domingo v. New England Fish Co., 727 F. 2d 1429, 1446 (CA9), modified on other grounds, 742 F. 2d 520 (1984); Nagy v. USPS, 773 F. 2d 1190 (CA11 1985). Cf. EEOC v. County of Erie, 751 F. 2d 79, 82 (CA2 1984) (interest allowed on backpay award under Equal Pay Act); Shaw v. Library of Congress, 241 U. S. App. D. C. 355, 361, 747 F. 2d 1469, 1475 (1984) (interest allowed on Title VII attorney’s fees award), rev’d on other grounds, 478 U. S. 310 (1986).

       Indeed, to ensure that victims of employment discrimination would be provided complete relief, Congress also gave the courts broad equitable powers. See § 706(g) of Title VII, as amended, 42 U. S. C. §2000e-5(g); see generally Albemarle Paper Co. v. Moody, 422 U. S., at 418-421.

       When the Senate was considering its version of the Postal Reorganization Act, Senator Cook proposed a floor amendment “to give postal service employees the equal employment opportunity rights provided by title VII of the Civil Rights Act of 1964, that employees in private industry have benefited from since 1964.” 116 Cong. Rec. 22279 (1970). The Senate approved the amendment by a 93-0 vote. See id., at 22279-22280. The Cook amendment was deleted in conference, however, because the conferees were persuaded that the “present law affecting all Federal employees, including employees under the new Postal Service, guarantee® antidis-crimination provisions ... of greater benefit . . . than the provisions of title VII of the Civil Rights Act of 1964.” Id., at 26953 (remarks of Sen. McGee); see also, id., at 26956, 26957 (remarks of Sen. McGee); id., at 27597 (remarks of Rep. Daniels). Senator McGee, who presented the Conference Report to the Senate, “guarantee®” that if the current bill did not “achieve the laudable purpose that the Cook amendment intended,” the Senate would immediately enact appropriate legislation. Id., at 26957 (remarks of Sen. McGee).

       Respondent also seeks comfort from the concededly technical distinction that this suit, in accordance with the provisions of § 717(c) of Title VII, 42 U. S. C. § 2000e-16(c), named the head of the Postal Service as defendant, while 39 U. S. C. § 401(1) makes the Postal Service amenable to suit “in its official name.” In FHA v. Burr, 309 U. S. 242, 249-250 (1940), however, we found such a distinction between a suit against the head of an agency and a suit against the agency itself irrelevant to the force of a “sue- and-be-sued” clause. In Burr, the “sue-and-be-sued” clause in § 1 of the National Housing Act, 48 Stat. 1246, as amended by § 344 of the Banking Act of 1935, 49 Stat. 722, applied to the Administrator of the Federal Housing Authority acting in his official capacity. The Court concluded that this waiver of sovereign immunity permitted actions against the Authority itself, because under the terms of the Act, all the powers of the Authority were exercised through the Administrator. This case presents the inverse situation: the “sue-and-be-sued” clause authorizes suits against the agency, and the defendant before the Court is the head of the agency acting in his official capacity. However, the same logic applies. Whenever the head of the Postal Service acts in his official capacity, he is acting in the name of the Postal Service. Thus, here, as in Burr, the acts of the named defendant are always chargeable as acts of the person or entity subject to the sue-and-be-sued clause. We therefore are not persuaded by respondent’s procedural distinction.