author: Justice Scalia

text:
    MIDLAND ASPHALT CORP. et al. v. UNITED STATES
    No. 87-1905.
    Argued January 17, 1989
    Decided March 28, 1989
    Scalia, J., delivered the opinion for a unanimous Court.

      Richard J. Braun argued the cause for petitioners. With him on the brief was Leslie M. Greenbaum.

      Lawrence S. Robbins argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Rule, Deputy Solicitor General Bryson, Deputy Assistant Attorney General Starling, John J. Powers III, and Laura Heiser.

   Justice Scalia

delivered the opinion of the Court.

Federal Rule of Criminal Procedure 6(e)(2) prohibits public disclosure by Government attorneys of “matters occurring before the grand jury” except in certain specified circumstances. This case presents the question whether a district court order denying a criminal defendant’s motion to dismiss an indictment for an alleged violation of Rule 6(e) is immediately appealable.

I

On January 23, 1987, a federal grand jury in the Western District of New York returned an indictment against petitioners Midland Asphalt Corporation, a business engaged in the sale of liquid bituminous material used to resurface roads, and Albert C. Litteer, Midland’s president and part owner. The indictment alleged that they had violated § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, by conspiring with other unindicted persons to allocate contracts and to submit collusive bids to the State of New York and certain counties in western New York. On July 21, 1987, petitioners moved to dismiss the indictment on grounds which included an alleged violation by federal prosecutors of Rule 6(e)(2).

Petitioners’ Rule 6(e) allegations arose from the following facts: When the grand jury that ultimately returned the Sherman Act indictment was sitting, Midland and another company under investigation brought suit seeking to have the Government pay for the cost of compliance with grand jury subpoenas. In re Grand Jury Subpoenas to Midland Asphalt Corp. and Krantz Asphalt Co., Civ. No. 85-633E (WDNY, Feb. 12, 1985) (In re Grand Jury Subpoenas). In that action Midland filed a motion asking that the District Court compel the Government to retain its rough and final notes of witness interviews. In response, the Government filed a memorandum in which it agreed to retain rough notes and final reports prepared by prosecutors and other Government personnel during its investigation of the western New York road-paving business. Approximately one year later, the defendants in a separate criminal case, also involving allegations of asphalt contract bid rigging in western New York State, United States v. Allegany Bitumens, Inc., Crim. No. 86-59C (WDNY, Apr. 14, 1986), filed a similar motion to require the Government to preserve its interview notes. Again the Government filed a memorandum agreeing to do so, noting that it had already made such a commitment to the District Court, and attaching a copy of its earlier memorandum in the In re Grand Jury Subpoenas case.

Petitioners’ motion to dismiss the indictment in the present case alleged that the Government’s filing, in Allegany Bitumens, of its memorandum from the In re Grand Jury Subpoenas case, publicly “disclose[d] matters occurring before the grand jury” in violation of Rule 6(e)(2). Specifically, the motion alleged that the memorandum disclosed the nature and focus of the investigation, the name of a grand jury witness, and the fact that the witness was to testify as an individual and not as a document custodian for Midland. Finding that the prosecution had not violated Rule 6(e)(2), the District Court denied petitioners’ motion to dismiss the indictment.

On appeal in the Court of Appeals for the Second Circuit, the Government moved to dismiss for lack of jurisdiction, contending that the District Court’s order declining to dismiss the indictment was not a “final decision” under 28 U. S. C. §1291. Petitioners responded that this Court’s decision in United States v. Mechanik, 476 U. S. 66 (1986), in which we held that an alleged violation of Federal Rule of Criminal Procedure 6(d) was rendered harmless beyond a reasonable doubt by a petit jury’s guilty verdict, would make district court orders denying motions to dismiss indictments based on alleged violations of Rule 6(e) “effectively unreviewable on appeal from a final judgment,” Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978), and hence immediately appealable under the collateral order doctrine, see ibid. The Court of Appeals rejected petitioners’ contention on the ground that Rule 6(d), the subsection at issue in Mechanik, exists primarily “to protect the person under investigation from being indicted in the absence of probable cause,” 840 F. 2d 1040, 1046 (1988), whereas Rule 6(e) serves the different function of “protecting] society’s interest in keeping secret the identity of grand jury witnesses and persons under investigation,” ibid. It concluded that ‘Mechanik [would not] preclud[e] a federal court of appeals from exercising post-trial review of an order denying a motion to dismiss an indictment for violation of Rule 6(e),” ibid., that denials of motions to dismiss indictments for alleged violations of Rule 6(e) are therefore not immediately appealable under the collateral order doctrine, and that the Government’s motion to dismiss the appeal in the case before it should be granted.

We granted certiorari to resolve a disagreement among the Courts of Appeals. 487 U. S. 1217 (1988).

II

In the Judiciary Act of 1789, 1 Stat. 73, the First Congress established the principle that only “final judgments and decrees” of the federal district courts may be reviewed on appeal. Id., at 84. The statute has changed little since then: 28 U. S. C. § 1291 today provides that federal courts of appeals “shall have jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” For purposes of this provision, a final judgment is normally deemed not to have occurred “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.’” Van Cauwenberghe v. Biard, 486 U. S. 517, 521 (1988), quoting Catlin v. United States, 324 U. S. 229, 233 (1945). In criminal cases, this prohibits appellate review until after conviction and imposition of sentence. Flanagan v. United States, 465 U. S. 259, 263 (1984); Berman v. United States, 302 U. S. 211, 212 (1937). Since petitioners have not yet even been tried, much less convicted or sentenced, it is plain that the District Court’s order denying their motion to dismiss falls within this prohibition.

In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), we carved out a narrow exception to the normal application of the final judgment rule, which has come to be known as the collateral order doctrine. This exception considers as “final judgments,” even though they do not “end the litigation on the merits,” decisions “which finally determine claims of right separate 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 jurisdiction be deferred until the whole case is adjudicated.” Id., at 546. To fall within the limited class of final collateral orders, an order 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.” Coopers & Lybrand v. Livesay, supra, at 468.

We have interpreted the collateral order exception “with the utmost strictness” in criminal cases. Flanagan, supra, at 265. Although we have had numerous opportunities in the 40 years since Cohen to consider the appealability of prejudgment orders in criminal cases, we have found denials of only three types of motions to be immediately appealable: motions to reduce bail, Stack v. Boyle, 342 U. S. 1 (1951), motions to dismiss on double jeopardy grounds, Abney v. United States, 431 U. S. 651 (1977), and motions to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U. S. 500 (1979). These decisions, along with the far more numerous ones in which we have refused to permit interlocutory appeals, manifest the general rule that the third prong of the Coopers & Lybrand test is satisfied only where the order at issue involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U. S. 850, 860 (1978).

We have little difficulty concluding that an order denying a motion to dismiss an indictment for an alleged violation of Rule 6(e) does not satisfy our “stringent conditions for qualification as an immediately appealable collateral order.” Flanagan, supra, at 270. Whether a violation of Rule 6(e) will be reviewable on appeal following conviction, as the Court of Appeals below held, 840 F. 2d, at 1046, or will be rendered harmless as a matter of law by the conviction, as the Ninth Circuit has decided, United States v. Benjamin, 812 F. 2d 548, 553 (1987), a district court order declining to dismiss an indictment for an alleged violation of the Rule fails one or the other of the final two requirements set out in Coopers & Lybrand. If Mechanik is not extended beyond violations of Rule 6(d), and if Rule 6(e) violations can accordingly provide the basis for reversal of a conviction on appeal, it is obvious that they are not “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand, 437 U. S., at 468. If, on the other hand, Mechanik is applied to bar postconviction review of alleged violations of Rule 6(e), it will be because the purpose of that Rule is the same as the purpose of Rule 6(d), namely, to “protec[t] against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty,” Mechanik, 475 U. S., at 70, which danger has demonstrably been avoided whenever there is a guilty verdict at trial. If this latter analysis is correct, however, orders denying motions to dismiss for Rule 6(e) violations cannot be said to “resolve an important issue completely separate from the merits of the action,” Coopers & Lybrand, supra, at 468, but rather involve “considerations enmeshed in the merits of the dispute,” Van Cauwenberghe, supra, at 528, and would “affect ... or be affected by” the decision on the merits of the case, DiBella v. United States, 369 U. S. 121, 126 (1962) (emphasis added). Thus, whatever view one takes of the scope of Mechanik (an issue we need not resolve here), the present order is not immediately appealable.

Petitioners attempt to avoid this reasoning by suggesting that orders of this sort, even if theoretically reviewable after conviction, are “effectively unreviewable,” Coopers & Lybrand, supra, at 468, once trial has been held, because they pertain to a right “the . . . practical value of which [is] destroyed if it [is] not vindicated before trial,” MacDonald, supra, at 860 — namely, the right not merely not to be convicted, but not to be tried at all “on an indictment returned by a grand jury whose decision to indict was substantially influenced by the government’s violation of 6(e).” Brief for Petitioner 24. We do not agree. It is true that deprivation of the right not to be tried satisfies the Coopers & Lybrand requirement of being “effectively unreviewable on appeal from a final judgment.” See Abney v. United States, supra; Helstoski v. Meanor, supra. One must be careful, however, not to play word games with the concept of a “right not to be tried.” In one sense, any legal rule can be said to give rise to a “right not to be tried” if failure to observe it requires the trial court to dismiss the indictment or terminate the trial. But that is assuredly not the sense relevant for purposes of the exception to the final judgment rule.

“Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated . . . does not mean that a defendant enjoys a ‘right not to be tried’ which must be safeguarded by interlocutory appellate review. Dismissal of the indictment is the proper sanction when a, defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals.” MacDonald, supra, at 860, n. 7.

There is a “crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges.” United States v. Hollywood Motor Car Co., 458 U. S. 263, 269 (1982). A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in the Double Jeopardy Clause (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”), see Abney v. United States, supra, or the Speech or Debate Clause (“[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place”), see Helstoski v. Meanor, supra. Neither Rule 6(e) nor the Constitution affords such a guarantee in the event of a violation of grand jury secrecy.

The text of Rule 6(e) contains no hint that a governmental violation of its prescriptions gives rise to a right not to stand trial. To be sure, we held last Term in Bank of Nova Scotia v. United States, 487 U. S. 250, 263 (1988), that a district court has authority in certain circumstances to dismiss an indictment for violations of Rule 6(e). But as just noted, that has nothing to do with a “right not to be tried” in the sense relevant here.

As for the Grand Jury Clause of the Fifth Amendment, that reads in relevant part as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” That does indeed confer a right not to he tried (in the pertinent sense) when there is no grand jury indictment. Undoubtedly the common-law protections traditionally associated with the grand jury attach to the grand jury required by this provision — including the requisite secrecy of grand jury proceedings. But that is far from saying that every violation of those protections, like the lack of a grand jury indictment itself, gives rise to a right not to be tried. We have held that even the grand jury’s violation of the defendant’s right against self-incrimination does not trigger the Grand Jury Clause’s “right not to be tried.” Lawn v. United States, 355 U. S. 339, 349 (1958). Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so.

* * *

For these reasons, the Court of Appeals was correct to grant the Government’s motion to dismiss the appeal, and its judgment is

Affirmed.

       The Court of Appeals for the Ninth Circuit has read Mechanik to forbid postconviction review of alleged violations of Rule 6(e), and accordingly has held that district court orders denying motions to dismiss indictments for violations of the Rule are immediately appealable under the collateral order doctrine. United States v. Benjamin, 812 F. 2d 548, 553 (1987). The Courts of Appeals for the Third, Tenth, and Eleventh Circuits have read Mechanik more narrowly to bar postconviction review only of “technical” violations of Rule 6, not violations calling into question the “fundamental fairness” of the criminal proceedings, and therefore have held that the latter type are not immediately appealable. United States v. Johns, 858 F. 2d 154, 159-160 (CA3 1988); United States v. Taylor, 798 F. 2d 1337, 1340 (CA10 1986); United States v. Kramer, 864 F. 2d 99, 101 (CA11 1988). The First, Seventh, and District of Columbia Circuits have held that claims which may not be reviewed following conviction pursuant to Mechanik are insufficiently important to fit within the small class of claims eligible for interlocutory review. United States v. LaRouche Campaign, 829 F. 2d 250, 253-254 (CA1 1987); United States v. Daniels, 848 F. 2d 758, 760 (CA7 1988); United States v. Poindexter, 273 U. S. App. D. C. 240, 245-246, 859 F. 2d 216, 221-222 (1988).


source: Caselaw Access Project

author: Justice Kennedy Justice Stevens,

license: Public Domain

text:
    DAVIS v. MICHIGAN DEPARTMENT OF THE TREASURY
    No. 87-1020.
    Argued January 9, 1989
    Decided March 28, 1989

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 818.

      Paul S. Davis, pro se, argued the cause and filed briefs for appellant.

      Michael K. Kellogg argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Merrill, David English Car-mack, and Steven W. Parks.

      Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Ross H. Bishop, Assistant Attorneys General.

         Joseph B. Scott and Michael J. Kotor filed a brief for the National Association of Retired Federal Employees as amicus curiae urging reversal.

   Justice Kennedy

delivered the opinion of the Court.

The State of Michigan exempts from taxation all retirement benefits paid by the State or its political subdivisions, but levies an income tax on retirement benefits paid by all other employers, including the Federal Government. The question presented by this case is whether Michigan’s tax scheme violates federal law.

I

Appellant Paul S. Davis, a Michigan resident, is a former employee of the United States Government. He receives retirement benefits pursuant to the Civil Service Retirement Act, 5 U. S. C. §8831 et seq. In each of the years 1979 through 1984, appellant paid Michigan state income tax on his federal retirement benefits in accordance with Mich. Comp. Laws Ann. §206.30(l)(f) (Supp. 1988). That statute defines taxable income in a manner that excludes all retirement benefits received from the State or its political subdivisions, but includes most other forms of retirement benefits. The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not.

In 1984, appellant petitioned for refunds of state taxes paid on his federal retirement benefits between 1979 and 1983. After his request was denied, appellant filed suit in the Michigan Court of Claims. Appellant’s complaint, which was amended to include the 1984 tax year, averred that his federal retirement benefits were “not legally taxable under the Michigan Income Tax Law” and that the State’s inconsistent treatment of state and federal retirement benefits discriminated against federal retirees in violation of 4 U. S. C. § 111, which preserves federal employees’ immunity from discriminatory state taxation. See Public Salary Tax Act of 1939, ch. 59, §4, 53 Stat. 575, codified, as amended, at 4 U. S. C. § 111. The Court of Claims, however, denied relief. No. 84-9451 (Oct. 30, 1985), App. to Juris. Statement A10.

The Michigan Court of Appeals affirmed. 160 Mich. App. 98, 408 N. W. 2d 433 (1987). The court first rejected appellant’s claim that 4 U. S. C. § 111 invalidated the State’s tax on appellant’s federal benefits. Noting that §111 applies only to federal “employees,” the court determined that appellant’s status under federal law was that of an “annuitant” rather than an employee. As a consequence, the court concluded that § 111 “has no application to [Davis], since [he] cannot be considered an employee within the meaning of that act.” Id., at 104, 408 N. W. 2d, at 435.

The Michigan Court of Appeals next rejected appellant’s contention that the doctrine of intergovernmental tax immunity rendered the State’s tax treatment of federal retirement benefits unconstitutional. Conceding that “a tax may be held invalid ... if it operates to discriminate against the federal government and those with whom it deals,” id., at 104, 408 N. W. 2d, at 436, the court examined the State’s justifications for the discrimination under a rational-basis test. Ibid. The court determined that the State’s interest in “attracting and retaining . . . qualified employees” was a “legitimate state objective which is rationally achieved by a retirement plan offering economic inducements,” and it upheld the statute. Id., at 105, 408 N. W. 2d, at 436.

The Supreme Court of Michigan denied appellant’s application for leave to appeal. 429 Mich. 854 (1987). We noted probable jurisdiction. 487 U. S. 1217 (1988).

II

Appellant places principal reliance on 4 U. S. C. § 111. In relevant part, that section provides:

“The United States consents to the taxation' of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.”

As a threshold matter, the State argues that § 111 applies only to current employees of the Federal Government, not to retirees such as appellant. In our view, however, the plain language of the statute dictates the opposite conclusion. Section 111 by its terms applies to “the taxation of pay or compensation for personal services as an officer or employee of the United States.” (Emphasis added). While retirement pay is not actually disbursed during the time an individual is working for the Government, the amount of benefits to be received in retirement is based and computed upon the individual’s salary and years of service. 5 U. S. C. § 8339(a). We have no difficulty concluding that civil service retirement benefits are deferred compensation for past years of service rendered to the Government. See, e. g., Zucker v. United States, 758 F. 2d 637, 639 (CA Fed.), cert. denied, 474 U. S. 842 (1985); Kizas v. Webster, 227 U. S. App. D. C. 327, 339, 707 F. 2d 524, 536, (1983), cert. denied, 464 U. S. 1042 (1984); Clark v. United States, 691 F. 2d 837, 842 (CA7 1982). And because these benefits accrue to employees on account of their service to the Government, they fall squarely within the category of compensation for services rendered “as an officer or employee of the United States.” Appellant’s federal retirement benefits are deferred compensation earned “as” a federal employee, and so are subject to § 111.

The State points out, however, that the reference to “compensation for personal services as an officer or employee” occurs in the first part of § 111, which defines the extent of Congress’ consent to state taxation, and not in the latter part of the section, which provides that the consent does not extend to taxes that discriminate against federal employees. Instead, the nondiscrimination clause speaks only in terms of “discriminat[ion] against the officer or employee because of the source of the pay or compensation.” From this the State concludes that, whatever the scope of Congress’ consent to taxation in the first portion of § 111, the nondiscrimination clause applies only to current federal employees.

Although the State’s hypertechnical reading of the nondiscrimination clause is not inconsistent with the language of that provision examined in isolation, statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. See United States v. Morton, 467 U. S. 822, 828 (1984). When the first part of §111 is read together with the nondiscrimination clause, the operative words of the statute are as follows: “The United States consents to the taxation of pay or compensation ... if the taxation does not discriminate . . . because of the source of the pay or compensation.” The reference to “the pay or compensation” in the last clause of § 111 must, in context, mean the same “pay or compensation” defined in the first part of the section. Since that “pay or compensation” includes retirement benefits, the nondiscrimination clause must include them as well.

Any other interpretation of the nondiscrimination clause would be implausible at best. It is difficult to imagine that Congress consented to discriminatory taxation of the pensions of retired federal civil servants while refusing to permit such taxation of current employees, and nothing in the statutory language or even in the legislative history suggests this result. While Congress could perhaps have used more precise language, the overall meaning of § 111 is unmistakable: it waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the Federal Government, except to the extent that such taxation discriminates on account of the source of the compensation.

1 — 1 HH hH

Section 111 was enacted as part of the Public Salary Tax Act of 1939, the primary purpose of which was to impose federal income tax on the salaries of all state and local government employees. Prior to adoption of the Act, salaries of most government employees, both state and federal, generally were thought to be exempt from taxation by another sovereign under the doctrine of intergovernmental tax immunity. This doctrine had its genesis in McCulloch v. Maryland, 4 Wheat. 316 (1819), which held that the State of Maryland could not impose a discriminatory tax on the Bank of the United States. Chief Justice Marshall’s opinion for the Court reasoned that the Bank was an instrumentality of the Federal Government used to carry into effect the Government’s delegated powers, and taxation by the State would unconstitutionally interfere with the exercise of those powers. Id., at 425-437.

For a time, McCulloch was read broadly to bar most taxation by one sovereign of the employees of another. See Collector v. Day, 11 Wall. 113, 124-128 (1871) (invalidating federal income tax on salary of state judge); Dobbins v. Com missioners of Erie County, 16 Pet. 435 (1842) (invalidating state tax on federal officer). This rule “was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax ‘on’ the government because it burdened the government’s power to enter into the contract.” South Carolina v. Baker, 485 U. S. 505, 518 (1988).

In subsequent cases, however, the Court began to turn away from its more expansive applications of the immunity doctrine. Thus, in Helvering v. Gerhardt, 304 U. S. 405 (1938), the Court held that the Federal Government could levy nondiscriminatory taxes on the incomes of most state employees. The following year, Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 486-487 (1939), overruled the Day-Dobbins line of cases that had exempted government employees from nondiscriminatory taxation. After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt.

It was in the midst of this judicial revision of the immunity doctrine that Congress decided to extend the federal income tax to state and local government employees. The Public Salary Tax Act was enacted after Helvering v. Gerhardt, supra, had upheld the imposition of federal income taxes on state civil servants, and Congress relied on that decision as support for its broad assertion of federal taxing authority. S. Rep. No. 112, 76th Cong., 1st Sess., 5-9 (1939); H. R. Rep. No. 26, 76th Cong., 1st Sess., 2-3 (1939). However, the Act was drafted, considered in Committee, and passed by the House of Representatives before the announcement of the decision in Graves v. New York ex rel. O’Keefe, supra, which for the first time permitted state taxation of federal employees. As a result, during most of the legislative process leading to adoption of the Act it was unclear whether state taxation of federal employees was still barred by intergovernmental tax immunity despite the abrogation of state employees’ immunity from federal taxation. See H. R. Rep. No. 26, swpra, at 2 (“There are certain indications in the case of McCulloch v. Maryland, 4 Wheat. 316 (1819), . . . that . . . Federal officers and employees may not, without the consent of the United States, be subjected to income taxation under the authority of the various States”).

Dissatisfied with this uncertain state of affairs, and concerned that considerations of fairness demanded equal tax treatment for state and federal employees, Congress decided to ensure that federal employees would not remain immune from state taxation at the same time that state government employees were being required to pay federal income taxes. See S. Rep. No. 112, supra, at 4; H. R. Rep. No. 26, supra, at 2. Accordingly, §4 of the proposed Act (now §111) expressly waived whatever immunity would have otherwise shielded federal employees from nondiscriminatory state taxes.

By the time the statute was enacted, of course, the decision in Graves had been announced, so the constitutional immunity doctrine no longer proscribed nondiscriminatory state taxation of federal employees. In effect, § 111 simply codified the result in Graves and foreclosed the possibility that subsequent judicial reconsideration of that case might reestablish the broader interpretation of the immunity doctrine.

Section 111 did not waive all aspects of intergovernmental tax immunity, however. The final clause of the section contains an exception for state taxes that discriminate against federal employees on the basis of the source of their compensation. This nondiscrimination clause closely parallels the nondiscrimination component of the constitutional immunity doctrine which has, from the time of McCulloch v. Maryland, barred taxes that “operat[e] so as to discriminate against the Government or those with whom it deals.” United States v. City of Detroit, 355 U. S. 466, 473 (1958). See also McCulloch v. Maryland, supra, at 436-437; Miller v. Milwaukee, 272 U. S. 713, 714-715 (1927); Helvering v. Gerhardt, supra, at 413; Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 385 (1960); Memphis Bank & Trust Co. v. Gamer, 459 U. S. 392, 397, and n. 7 (1983).

In view of the similarity of language and purpose between the constitutional principle of nondiscrimination and the statutory nondiscrimination clause, and given that § 111 was consciously drafted against the background of the Court’s tax immunity cases, it is reasonable to conclude that Congress drew upon the constitutional doctrine in defining the scope of the immunity retained in § 111. When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts. See Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986); Morissette v. United States, 342 U. S. 246, 263 (1952). Hence, we conclude that the retention of immunity in § 111 is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Cf. Memphis Bank & Trust, supra, at 396-397 (construing 31 U. S. C. §742, which permits only ‘“nondiscriminatory’” state taxation of interest on federal obligations, as “principally a restatement of the constitutional rule”).

On its face, § 111 purports to be nothing more than a partial congressional consent to nondiscriminatory state taxation of federal employees. It can be argued, however, that by negative implication §111 also constitutes an affirmative statutory grant of immunity from discriminatory state taxation in addition to, and coextensive with, the pre-existing protection afforded by the constitutional doctrine. Regardless of whether § 111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same. In either case, the scope of the immunity granted or retained by the nondiscrimination clause is to be determined by reference to the constitutional doctrine. Thus, the dispositive question in this case is whether the tax imposed on appellant is barred by the doctrine of intergovernmental tax immunity.

IV

It is undisputed that Michigan’s tax system discriminates in favor of retired state employees and against retired federal employees. The State argues, however, that appellant is not entitled to claim the protection of the immunity doctrine, and that in any event the State’s inconsistent treatment of Federal and State Government retirees is justified by meaningful differences between the two classes.

A

In support of its first contention, the State points out that the purpose of the immunity doctrine is to protect governments and not private entities or individuals. As a result, so long as the challenged tax does not interfere with the Federal Government’s ability to perform its governmental functions, the constitutional doctrine has not been violated.

It is true that intergovernmental tax immunity is based on the need to protect each sovereign’s governmental operations from undue interference by the other. Graves, 306 U. S., at 481; McCulloch v. Maryland, 4 Wheat., at 435-436. But it does not follow that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign cannot themselves receive the protection of the constitutional doctrine. Indeed, all precedent is to the contrary. In Phillips Chemical Co., supra, for example, we considered a private corporation’s claim that a state tax discriminated against private lessees of federal land. We concluded that the tax “discriminate[d] unconstitutionally against the United States and its lessee,” and accordingly held that the tax could not be exacted. Id., at 387 (emphasis added). See also Memphis Bank & Trust, supra; Moses Lake Homes, Inc. v. Grant County, 365 U. S. 744 (1961); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842). The State offers no reasons for departing from this settled rule, and we decline to do so.

B

Under our precedents, “[t]he imposition of a heavier tax burden on [those who deal with one sovereign] than is imposed on [those who deal with the other] must be justified by significant differences between the two classes.” Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S., at 383. In determining whether this standard of justification has been met, it is inappropriate to rely solely on the mode of analysis developed in our equal protection cases. We have previously observed that “our decisions in [the equal protection] field are not necessarily controlling where problems of intergovernmental tax immunity are involved,” because “the Government’s interests must be weighed in the balance.” Id., at 385. Instead, the relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, “significant differences between the two classes.” Id., at 383-385.

The State points to two allegedly significant differences between federal and state retirees. First, the State suggests that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits is sufficient to justify the preferential treatment of its retired employees. This argument is wholly beside the point, however, for it does nothing to demonstrate that there are “significant differences between the two classes” themselves; rather, it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees. The State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant to an inquiry into the nature of the two classes receiving inconsistent treatment. See id., at 384.

Second, the State argues that its retirement benefits are significantly less munificent than those offered by the Federal Government, in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the retirement benefits paid the two classes should, in the State’s view, justify the inconsistent tax treatment.

Even assuming the State’s estimate of the relative value of state and federal retirement benefits is generally correct, we do not believe this difference suffices to justify the type of blanket exemption at issue in this case. While the average retired federal civil servant receives a larger pension than his state counterpart, there are undoubtedly many individual instances in which the opposite holds true. A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State’s unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of state property in the disfavored class as well).

V

For these reasons, we conclude that the Michigan Income Tax Act violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The State having conceded that a refund is appropriate in these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund. See Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931).

Appellant also seeks prospective relief from discriminatory taxation. With respect to this claim, however, we are not in the best position to ascertain the appropriate remedy. While invalidation of Michigan’s income tax law in its entirety obviously would eliminate the constitutional violation, the Constitution does not require such a drastic solution. We have recognized, in cases involving invalid classifications in the distribution of government benefits, that the appropriate remedy “is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465 U. S. 728, 740 (1984). See Iowa-Des Moines National Bank, supra, at 247; see also Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in judgment).

In this case, appellant’s claim could be resolved either by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees. The latter approach, of course, could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court. See Moses Lake Homes, Inc. v. Grant County, 365 U. S., at 752 (“Federal courts may not assess or levy taxes”). The permissibility of either approach, moreover, depends in part on the severability of a portion of §206.30(l)(f) from the remainder of the Michigan Income Tax Act, a question of state law within the special expertise of the Michigan courts. See Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540-541 (1933). It follows that the Michigan courts are in the best position to determine how to comply with the mandate of equal treatment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

dissenting.

The States can tax federal employees or private parties who do business with the United States so long as the tax does not discriminate against the United States. South Carolina v. Baker, 485 U. S. 505, 523 (1988); United States v. County of Fresno, 429 U. S. 452, 462 (1977). The Court today strikes down a state tax that applies equally to the vast majority of Michigan residents, including federal employees, because it treats retired state employees differently from retired federal employees. The Court’s holding is not supported by the rationale for the intergovernmental immunity doctrine and is not compelled by our previous decisions. I cannot join the unjustified, court-imposed restriction on a State’s power to administer its own affairs.

The constitutional doctrine of intergovernmental immunity, Justice Frankfurter explained, “finds its explanation and justification ... in avoiding the potentialities of friction and furthering the smooth operation of complicated governmental machinery.” City of Detroit v. Murray Cory., 355 U. S. 489, 504 (1958). To protect the smooth operation of dual governments in a federal system, it was at one time thought necessary to prohibit state taxation of the salaries of officers and employees of the United States, Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842), as well as federal taxation of the salaries of state officials. Collector v. Day, 11 Wall. 113 (1871). The Court has since forsworn such “wooden formalism.” Washington v. United States, 460 U. S. 536, 544 (1983).

The nondiscrimination rule recognizes the fact that the Federal Government has no voice in the policy decisions made by the several States. The Federal Government’s protection against state taxation that singles out federal agencies for special burdens is therefore provided by the Supremacy Clause of the Federal Constitution, the doctrine of intergovernmental tax immunity, and statutes such as 4 U. S. C. § 111. When the tax burden is shared equally by federal agents and the vast majority of a State’s citizens, however, the nondiscrimination principle is not applicable and constitutional protection is not necessary. As the Court explained in United States v. County of Fresno:

“The rule to be derived from the Court’s more recent decisions, then, is that the economic burden on a federal function of a state tax imposed on those who deal with the Federal Government does not render the tax unconstitutional so long as the tax is imposed equally on the other similarly situated constituents of the State. This rule returns to the original intent of MVulloch v. Maryland. The political check against abuse of the taxing power found lacking in M‘Culloch, where the tax was imposed solely on the Bank of the United States, is present where the State imposes a nondiscriminatory tax only on its constituents or their artificially owned entities; and M‘Culloch foresaw the unfairness in forcing a State to exempt private individuals with beneficial interests in federal property from taxes imposed on similar interests held by others in private property. Accordingly, MVulloch expressly excluded from its rule a tax on ‘the interest which the citizens of Maryland may hold [in a federal instrumentality] in common with other property of the same description throughout the State.’ 4 Wheat., at 436.” 429 U. S., at 462-464.

If Michigan were to tax the income of federal employees without imposing a like tax on others, the tax would be plainly unconstitutional. Cf. McCulloch v. Maryland, 4 Wheat. 316, 425-437 (1819). On the other hand, if the State taxes the income of all its residents equally, federal employees must pay the tax. Graves v. New York ex rel. O’Keefe, 306 U. S. 466 (1939). See United States v. County of Fresno, 429 U. S., at 468 (Stevens, J., dissenting). The Michigan tax here applies to approximately Alk million individual taxpayers in the State, including the 24,000 retired federal employees. It exempts only the 130,000 retired state employees. Tr. of Oral Arg. 35-36. Once one understands the underlying reason for the McCulloch holding, it is plain that this tax does not unconstitutionally discriminate against federal employees.

The Court reaches the opposite result only by examining whether the tax treatment of federal employees is equal to that of one discrete group of Michigan residents — retired state employees. It states: “It is undisputed that Michigan’s tax system discriminates in favor of retired state employees and against retired federal employees.” Ante, at 814. But it does not necessarily follow that such a tax “discriminate[s] against the [federal] officer or employee because of the source of the pay or compensation.” 4 U. S. C. § 111. The fact that a State may elect to grant a preference, or an exemption, to a small percentage of its residents does not make the tax discriminatory in any sense that is relevant to the doctrine of intergovernmental tax immunity. The obligation of a federal judge to pay the same tax that is imposed on the income of similarly situated citizens in the State should not be affected by the fact that the State might choose to grant an exemption to a few of its taxpayers — whether they be state judges, other state employees, or perhaps a select group of private citizens. Such an exemption might be granted “in spite of” and not necessarily “because of” its adverse effect on federal employees. Cf. Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279 (1979). Indeed, at least 14 other States grant special tax exemptions for retirement income to state and local government employees that they do not grant to federal employees. As long as a state income tax draws no distinction between the federal employees or retirees and the vast majority of voters in the State, I see no reason for concern about the kind of “discrimination” that these provisions make. The intergovernmental immunity doctrine simply does not constitute a most favored nation provision requiring the States to accord federal employees and federal contractors the greatest tax benefits that they give any other group subject to their jurisdiction.

To be .sure, there is discrimination against federal employees — and all other Michigan taxpayers — if a small group of residents is granted an exemption. If the size of the exempt group remains the same — say, no more than 10% of the populace — the burden on federal interests also remains the same, regardless of how the exempt class is defined. Whether it includes schoolteachers, church employees, state judges, or perhaps handicapped persons, is a matter of indifference to the Federal Government as long as it can fairly be said that federal employees are treated like other ordinary residents of the State.

Even if it were appropriate to determine the discriminatory nature of a tax system by comparing the treatment of federal employees with the treatment of another discrete group of persons, it is peculiarly inappropriate to focus solely on the treatment of state governmental employees. The State may always compensate in pay or salary for what it assesses in taxes. Thus a special tax imposed only on federal and state employees nonetheless may reflect the type of disparate treatment that the intergovernmental tax immunity forbids because of the ability of the State to adjust the compensation of its employees to avoid any special tax burden on them. United States v. County of Fresno, 429 U. S., at 468-469 (Stevens, J., dissenting). It trivializes the Supremacy Clause to interpret it as prohibiting the States from providing through this limited tax exemption what the State has an unquestionable right to provide through increased retirement benefits.

Arguably, the Court’s holding today is merely a logical extension of our decisions in Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376 (1960), and Memphis Bank & Trust Co. v. Garner, 459 U. S. 392 (1983). Even if it were, I would disagree with it. Those cases are, however, significantly different.

Phillips involved a tax that applied only to lessees of federal property. Article 5248 of the Texas Code imposed a tax on lessees of federal lands measured by the value of the fee held by the United States. Article 7173 of the Code, the only other provision that authorized a tax on lessees, either granted an exemption to lessees of other public lands or taxed them at a lower rate. Lessees of privately owned property paid no tax at all. The company argued that “because Article 5248 applies only to private users of federal property, it is invalid for that reason, without more.” 361 U. S., at 382. The Court rejected that argument, reasoning that it was “necessary to determine how other taxpayers similarly situated are treated.” Id., at 383. It then defined the relevant classes of “similarly situated” taxpayers as the federal lessees who were taxed under Article 5248 and the lessees of other public property taxed under Article 7173. Within that narrow focus, the Court rejected the school district’s argument that the discrimination between the two classes could be justified. Because the Court confined its analysis to the two state taxes that applied to lessees of public property, its reasoning would be controlling in the case before us today if Michigan’s income tax applied only to public employees; on that hypothesis, if state employees were exempted, the tax would obviously discriminate against federal employees.

The troublesome aspect of the Court’s opinion in Phillips is its failure to attach any significance to the fact that the tax on private landlords presumably imposed an indirect burden on their lessees that was as heavy as the direct burden on federal lessees imposed by Article 5248. The Court did note that “[u]nder these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property.” Id., at 881. But — possibly because of the school district’s rather unwise reliance on an equal protection analysis of the case — the Court never even considered the question whether the political check provided by private property owners was sufficient to save that tax from the claim that it singled out federal lessees for an unconstitutional tax burden.

In Memphis Bank & Trust Co., the question presented was the lawfulness of a Tennessee tax on the net earnings of banks doing business in the State that defined net earnings to “include interest received by the bank on the obligations of the United States and its instrumentalities, as well as interest on bonds and other obligations of States other than Tennessee, but [to] exclude interest on obligations of Tennessee and its political subdivisions.” 459 U. S., at 394. Although the federal obligations were part of a large class and the tax therefore did not discriminate only against the income derived from a federal source, all other members of the disfavored class were also unrepresented in the Tennessee Legislature. There was, therefore, no political check to protect the out-of-state issuers, including the federal instrumental-ities, from precisely the same kind of discrimination involved in McCulloch v. Maryland. Indeed, in the McCulloch case itself, the taxing statute did not, in terms, single out the National Bank for disfavored treatment; the tax was imposed on “all Banks, or branches thereof, in the State of Maryland, not chartered by the legislature.” 4 Wheat., at 317-318. A tax that discriminates against a class of nonresidents, including federal instrumentalities, clearly is not protected by the political check that saved the state taxes in cases like United States v. County of Fresno, 429 U. S. 452 (1977), and City of Detroit v. Murray Corp., 355 U. S. 489 (1958).

When the Court rejected the claim that a federal employee’s income is immune from state taxation in Graves v. New York ex rel. O’Keefe, 306 U. S. 466 (1939), Justice Frankfurter wrote separately to explain how a “seductive cliché” had infected the doctrine of intergovernmental immunity, which had been “moving in the realm of what Lincoln called ‘pernicious abstractions.’” He correctly noted that only a “web of unreality” could explain how the “[f]ailure to exempt public functionaries from the universal duties of citizenship to pay for the costs of government was hypothetically transmuted into hostile action of one government against the other.” Id., at 489-490.

Today, it is not the great Chief Justice’s dictum about how the power to tax includes the power to destroy that obscures the issue in a web of unreality; it is the virtually automatic rejection of anything that can be labeled “discriminatory.” The question in this case deserves more careful consideration than is provided by the mere use of that label. It should be answered by considering whether the ratio decidendi of our holding in McCulloch v. Maryland is applicable to this quite different case. It is not. I, therefore, respectfully dissent.

       As a result of a series of amendments, this subsection has been variously designated as (l)(f), (l)(g), and (l)(h) at times relevant to this litigation. This opinion will refer only to the current statutory designation, §206.30(l)(f).

       In pertinent part, the statute provides:
      “(1) ‘Taxable income’. . . means adjusted gross income as defined in the internal revenue code subject to the following adjustments:
      “(f) Deduct to the extent included in adjusted gross income:
      “(i) Retirement or pension benefits received from a public retirement system of or created by an act of this state or a political subdivision of this state.
      “(iv) Retirement or pension benefits from any other retirement or pension system as follows:
      “(A) For a single return, the sum of not more than $7,500.00.
      “(B) For a joint return, the sum of not more than $10,000.00.” Mich. Comp. Laws Ann. § 206.30(l)(f) (Supp. 1988).
      Subsection (f)(iv) of this provision exempts a portion of otherwise taxable retirement benefits from taxable income, but appellant’s retirement pay from all nonstate sources exceeded the applicable exemption amount in each of the tax years relevant to this case.

       The State suggests that the legislative history does not support this interpretation of § 111, pointing to statements in the Committee Reports that describe the scope of § 111 without using the phrase “service as an officer or employee.” The language of the statute leaves no room for doubt on this point, however, so the State’s attempt to establish a minor inconsistency with the legislative history need not detain us. Legislative history is irrelevant to the interpretation of an unambiguous statute. United Air Lines, Inc. v. McMann, 434 U. S. 192, 199 (1977).

       The dissent argues that this tax is nondiscriminatory, and thus constitutional, because it “draws no distinction between the federal employees or retirees and the vast majority of voters in the State.” Post, at 823. In Phillips Chemical Co., however, we faced that precise situation: an equal tax burden was imposed on lessees of private, tax-exempt property and lessees of federal property, while lessees of state property paid a lesser tax, or in some circumstances none at all. Although we concluded that “[ujnder these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property,” 361 U. S., at 381, we nonetheless invalidated the State’s tax. This result is consistent with the underlying rationale for the doctrine of intergovernmental tax immunity. The danger that a State is engaging in impermissible discrimination against the Federal Government is greatest when the State acts to benefit itself and those in privity with it. As we observed in Phillips Chemical Co., “it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself.” Id.., at 385.
      We also take issue with the dissent’s assertion that “it is peculiarly inappropriate to focus solely on the treatment of state governmental employees” because “[t]he State may always compensate in pay or salary for what it assesses in taxes.” Post, at 824. In order to provide the same after-tax benefits to all retired state employees by means of increased salaries or benefit payments instead of a tax exemption, the State would have to increase its outlays by more than the cost of the current tax exemption, since the increased payments to retirees would result in higher federal income tax payments in some circumstances. This fact serves to illustrate the impact on the Federal Government of the State’s discriminatory tax exemption for state retirees. Taxes enacted to reduce the State’s employment costs at the expense of the federal treasury are the type of discriminatory legislation that the doctrine of intergovernmental tax immunity is intended to bar.

       The legislative history of 4 U. S. C. § 111 correctly describes the purpose of the nondiscrimination principle as “[t]o protect the Federal Government against the unlikely possibility of State and local taxation of compensation of Federal officers and employees which is aimed at, or threatens the efficient operation of, the Federal Government.” H. R. Rep. No. 26, 76th Cong., 1st Sess., 5 (1939); S. Rep. No. 112, 76th Cong., 1st Sess., 12 (1939).

       The quotation in the text omits one footnote, but this footnote is relevant:
      “ “A tax on the income of federal employees, or a tax on the possessory interest of federal employees in Government houses, if imposed only on them, could be escalated by a State so as to destroy the federal function performed by them either by making the Federal Government unable to hire anyone or by causing the Federal Government to pay prohibitively high salaries. This danger would never arise, however, if the tax is also imposed on the income and property interests of all other residents and voters of the State.” 429 U. S., at 463.
      The Court has repeatedly emphasized that the rationale of the nondiscrimination rule is met when there is a political check against excessive taxation. See South Carolina v. Baker, 485 U. S. 505, 526, n. 15 (1988) (“[T]he best safeguard against excessive taxation (and the most judicially manageable) is the requirement that the government tax in a nondiscriminatory fashion. For where a government imposes a nondiscriminatory tax, judges can term the tax ‘excessive’ only by second-guessing the extent to which the taxing government and its people have taxed themselves, and the threat of destroying another government can be realized only if the taxing government is willing to impose taxes that will also destroy itself or its constituents”); Washington v. United States, 460 U. S. 536, 545 (1983) (“A ‘political check’ is provided when a state tax falls on a significant group of state citizens who can be counted upon to use their votes to keep the State from raising the tax excessively, and thus placing an unfair burden on the Federal Government. It has been thought necessary because the United States does not have a direct voice in the state legislatures”).

       See Ariz. Rev. Stat. Ann. §§43-1022(3) and (4) (Supp. 1988) (benefits, annuities, and pensions received from the state retirement system, the state retirement plan, the judges’ retirement fund, the public safety personnel retirement system, or a county or city retirement plan exempt in their entirety; income received from the United States civil service retirement system exempt only up to $2500); Colo. Rev. Stat. §§ 39-22-104(4)(f) and (g) (Supp. 1988) (amounts received as pensions or annuities from any source exempt up to $20,000, but amounts received from Federal Government as retirement pay by retired member of Armed Forces less than 55 years of age exempt only up to $2000); Ga. Code Ann. § 48-7-27(a)(4)(A) (Supp. 1988) (income from employees’ retirement system exempt); La. Rev. Stat. Ann. §§42:545, 47:44.1 (West Supp. 1989) (annuities, retirement allowances and benefits paid under the state employee retirement system exempt from state or municipal taxation in their entirety, but other annuities exempt only up to $6000); Md. Tax-Gen. Code Ann. § 10-207(o) (1988) (fire, rescue, or ambulance personnel length of service award funded by any county or municipal corporation of State exempt); Mo. Rev. Stat. § 169.587 (Supp. 1989) (retirement allowance, benefit, funds, property, or rights under public school retirement system exempt); Mont. Code Ann. §§ 15-30-1 ll(2)(c)-(f) (1987) (benefits under teachers retirement law, public employees retirement system, and highway patrol law exempt in their entirety; benefits under Federal Employees Retirement Act exempt only up to $3600); N. Y. Tax Law § 612(c)(3) (McKinney 1987) (pensions to officers and employees of State, its subdivisions and agencies exempt); N. C. Gen. Stat. §§ 105 — 141(b)(13) and (14) (Supp. 1988) (amounts received from retirement and pension funds established for firemen and law enforcement officers exempt in their entirety, but amounts received from federal-employee-retirement program exempt only up to $4000); Ore. Rev. Stat. §§316.680(l)(c) and (d) (1987) (payments from Public Employes Retirement Fund exempt in their entirety, but payments under public retirement system established by United States exempt only up to $5000); S. C. Code §§ 12-7-435(a), (d), (e) (Supp. 1988) (amounts received from state retirement systems and retirement pay received by police officers and firemen from municipal or county retirement plans exempt in their entirety; federal civil service retirement annuity exempt only up to $3000); Va. Code § 58.1-322(0(3) (Supp. 1988) (pensions or retirement income to officers or employees of Commonwealth, its subdivisions and agencies, or surviving spouses of such officers or employees paid by the Commonwealth or an agency or subdivision thereof exempt); W. Va. Code §§ ll-21-12(c)(5) and (6) (Supp. 1988) (annuities, retirement allowances, returns of contributions or any other benefit received under the public employees retirement system, the department of public safety death, disability, and retirement fund, the state teachers’ retirement system, pensions and annuities under any police or firemen’s retirement system exempt); Wis. Stat. § 71.05(l)(a) (Supp. 1988-1989) (payments received from the employees’ retirement system of city of Milwaukee, Milwaukee city employees’ retirement system, sheriff’s retirement and benefit fund of Milwaukee, firefighters’ annuity and benefit fund of Milwaukee, the public employee trust fund, and the state teachers’ retirement system exempt).

       The Court also suggests that compensating state employees through tax exemptions rather than through increased pension benefits discriminates against federal taxpayers by reducing the pension income subject to federal taxation. See ante, at 815, n. 4. But retired state employees are not alone in receiving a subsidy through a tax exemption. Michigan, like most States, provides tax exemptions to select industries and groups. See, e. g., Mich. Comp. Laws Ann. §205.54a(g) (West 1986 and Supp. 1988) (industrial processing), and §205.54a(p) (1986) (pollution control). That the State chooses to proceed by indirect subsidy rather than direct subsidy, however, should not render the tax invalid under the Supremacy Clause.

       “Although Article 7173 is, in terms, applicable to all lessees who hold tax-exempt property under a lease for a term of three years or more, it appears that only lessees of public property fall within this class in Texas. Tax exemptions for real property owned by private organizations — charities, churches, and similar entities — do not survive a lease to a business lessee. The full value of the leased property becomes taxable to the owner, and the lessee’s indirect burden consequently is as heavy as the burden imposed directly on federal lessees by Article 5248.” 361 U. S., at 380-381 (emphasis in original; footnote omitted).

       “The School District addresses this problem, essentially, as one of equal protection, and argues that we must uphold the classification, though apparently discriminatory, ‘if any state of facts reasonably can be conceived that would sustain it.’ Allied Stores v. Bowers, 358 U. S. 522, 528.” Id., at 383.

       An interesting feature of the Phillips opinion is its reference to the fact that the tax upheld in United States v. City of Detroit, 355 U. S. 466 (1958), had actually included an exemption for school-owned property — and therefore discriminated “against” federal property in the same way the tax involved in this case discriminates “against” federal employees.
      “This argument misconceives the scope of the Michigan decisions. In those cases we did not decide — in fact, we were not asked to decide— whether the exemption of school-owned property rendered the statute discriminatory. Neither the Government nor its lessees, to whom the statute was applicable, claimed discrimination of this character.” Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S., at 386.
      The Court’s description of the relevant class of property subject to tax in the Detroit ease obviously would have provided the same political check against discrimination regardless of how the school property might have been classified. In Detroit, Justice Black described that class as follows:
      “But here the tax applies to every private party who uses exempt property in Michigan in connection with a business conducted for private gain. Under Michigan law this means persons who use property owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities. The class defined is not an arbitrary or invidiously discriminatory one.” 355 U. S., at 473.


author: Justice White

text:
    FRAZEE v. ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY et al.
    No. 87-1945.
    Argued March 1, 1989
    Decided March 29, 1989

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

      David A. French argued the cause for appellant. With him on the briefs was John W. Whitehead.

      Robert J. Ruiz, Solicitor General of Illinois, argued the cause for appellees. With him on the brief were Neil F. Hartigan, Attorney General, and Diane Curry Grapsas and Marcy I. Singer, Assistant Attorneys General.

      Briefs of amici curiae urging reversal were filed for the American Jewish Congress et al. by Amy Adelson, Lois C. Waldman, and Marc D. Stern; for the Anti-Defamation League of B’nai B’rith by Steven M. Freeman, Meyer Eisenberg, Jeffrey P. Sinensky, Jill L. Kahn, and Richard E. Shevitz; for the Council on Religious Freedom et al. by Lee Boothby, Samuel Rabinove, Richard T. Foltin, Robert W. Nixon, and Rolland Truman; and for Robert Roesser et al. by Bruce N. Cameron.

   Justice White

delivered the opinion of the Court.

The Illinois Unemployment Insurance Act provides that “[a]n individual shall be ineligible for benefits if he has failed, without good cause, either to apply for available, suitable work when so directed ... or to accept suitable work when offered him . . . .” Ill. Rev. Stat., ch. 48, ¶433 (1986). In April 1984, William Frazee refused a temporary retail position offered him by Kelly Services because the job would have required him to work on Sunday. Frazee told Kelly that, as a Christian, he could not work on “the Lord’s day.” Frazee then applied to the Illinois Department of Employment Security for unemployment benefits claiming that there was good cause for his refusal to work on Sunday. His application was denied. Frazee appealed the denial of benefits to the Department of Employment Security’s Board of Review, which also denied his claim. The Board of Review stated: “When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual’s personal belief is personal and noncompelling and does not render the work unsuitable.” App. 18-19. The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. The Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency’s decision was “not contrary to law nor against the manifest weight of the evidence,” thereby rejecting Frazee’s claim based on the Free Exercise Clause of the First Amendment. Id., at 23.

Frazee’s free exercise claim was again rejected by the Appellate Court of Illinois, Third District. 159 Ill. App. 3d 474, 512 N. E. 2d 789 (1987). The court characterized Frazee’s refusal to work as resting on his “personal professed religious belief,” and made it clear that it did “not question the sincerity of the plaintiff,” id., at 475, 477, 512 N. E. 2d, at 790, 791. It then engaged in a historical discussion of religious prohibitions against work on the Sabbath and, in particular, on Sunday. Nonetheless, the court distinguished Sherbert v. Verner, 374 U. S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); and Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U. S. 136 (1987), from the facts of Frazee’s case. Unlike the claimants in Sherbert, Thomas, and Hobbie, Frazee was not a member of an established religious sect or church, nor did he claim that his refusal to work resulted from a “tenet, belief or teaching of an established religious body.” 159 Ill. App. 3d, at 477, 512 N. E. 2d, at 791. To the Illinois court, Frazee’s position that he was “a Christian” and as such felt it wrong to work on Sunday was not enough. For a Free Exercise Clause claim to succeed, said the Illinois Appellate Court, “the injunction against Sunday labor must be found in a tenet or dogma of an established religious sect. [Frazee] does not profess to be a member of any such sect.” Id., at 478-479, 512 N. E. 2d, at 792. The Illinois Supreme Court denied Frazee leave to appeal.

The mandatory appellate jurisdiction of this Court was invoked under 28 U. S. C. §1257(2), since the state court rejected a challenge to the constitutionality of Illinois’ statutory “good cause” requirement as applied in this case. We noted probable jurisdiction, 488 U. S. 814 (1988), and now reverse.

We have had more than one occasion before today to consider denials of unemployment compensation benefits to those who have refused work on the basis of their religious beliefs. In Sherbert v. Verner, supra, at 410, the Court held that a State could not “constitutionally apply the eligibility provisions [of its unemployment-compensation program] so as to constrain a worker to abandon his religious convictions respecting the day of rest.” Thomas v. Review Bd. of Indiana Employment Security Div., supra, also held that the State’s refusal to award unemployment compensation benefits to one who terminated his job because his religious beliefs forbade participation in the production of armaments violated the First Amendment right to free exercise. Just two years ago, in Hobbie v. Unemployment Appeals Comm’n of Florida, supra, Florida’s denial of unemployment compensation benefits to an employee discharged for her refusal to work on her Sabbath because of religious convictions adopted subsequent to employment was also declared to be a violation of the Free Exercise Clause. In each of these cases, the appellant was “forced to choose between fidelity to religious belief and . . . employment,” id., at 144, and we found “the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee’s choice,” ibid. In each of these cases, we concluded that the denial of unemployment compensation benefits violated the Free Exercise Clause of the First Amendment of the Constitution, as applied to the States through the Fourteenth Amendment.

It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief. Indeed, in Thomas, there was disagreement among sect members as to whether their religion made it sinful to work in an armaments factory; but we considered this to be an irrelevant issue and hence rejected the State’s submission that unless the religion involved formally forbade work on armaments, Thomas’ belief did not qualify as a religious belief. Because Thomas unquestionably had a sincere belief that his religion prevented him from doing such work, he was entitled to invoke the protection of the Free Exercise Clause.

There is no doubt that “[o]nly beliefs rooted in religion are protected by the Free Exercise Clause,” Thomas, supra, at 713. Purely secular views do not suffice. United States v. Seeger, 380 U. S. 163 (1965); Wisconsin v. Yoder, 406 U. S. 205, 215-216 (1972). Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause. We do not face problems about sincerity or about the religious nature of Frazee’s convictions, however. The courts below did not question his sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore, the Board of Review characterized Frazee’s views as “religious convictions,” App. 18, and the Illinois Appellate Court referred to his refusal to work on Sunday as based on a “personal professed religious belief,” 159 Ill. App. 3d, at 475, 512 N. E. 2d, at 790.

Frazee asserted that he was a Christian, but did not claim to be a member of a particular Christian sect. It is also true that there are assorted Christian denominations that do not profess to be compelled by their religion to refuse Sunday work, but this does not diminish Frazee’s protection flowing from the Free Exercise Clause. Thomas settled that much. Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Here, Frazee’s refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection.

The State does not appear to defend this aspect of the decision below. In its brief and at oral argument, the State conceded that the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect. Instead, the State proposes its own test for identifying a “religious” belief, asserts that Frazee has not met such a test, and asks that we affirm on this basis. We decline to address this submission; for as the case comes to us, Frazee’s conviction was recognized as religious but found to be inadequate because it was not claimed to represent a tenet of a religious organization of which he was a member. That ground for decision was clearly erroneous.

The State offers no justification for the burden that the denial of benefits places on Frazee’s right to exercise his religion. The Illinois Appellate Court ascribed great significance to America’s weekend way of life. The Illinois court asked: “What would Sunday be today if professional football, baseball, basketball, and tennis were barred. Today Sunday is not only a day for religion, but for recreation and labor. Today the supermarkets are open, service stations dispense fuel, utilities continue to serve the people and factories continue to belch smoke and tangible products,” concluding that “[i]f all Americans were to abstain from working on Sunday, chaos would result.” 159 Ill. App. 3d, at 478, 512 N. E. 2d, at 792. We are unpersuaded, however, that there will be a mass movement away from Sunday employ if William Frazee succeeds in his claim.

As was the case in Thomas where there was “no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create ‘widespread unemployment,’ or even to seriously affect unemployment,” 450 U. S., at 719, there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today. And, as we have said in the past, there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion. No such interest has been presented here.

The judgment of the Appellate Court of Illinois for the Third District is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       From the very first report of the Illinois Division of Unemployment Insurance claims adjudicator, Frazee’s refusal of Sunday work has been described as “due to his religious convictions.” In his application for reconsideration of the referee’s determination, Frazee stated: “I refused the job which required me to work on Sunday based on Biblical principles, scripture Exodus 20: 8, 9, 10. Remember the Sabbath day by keeping it holy. Six days you shall labour and do all your work but the seventh day is a Sabbath to the Lord your God. On it you shall not do any work.”

       We noted in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 715 (1981), that an asserted belief might be “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause.” But that avails the State nothing in this case. As the discussion of the Illinois Appellate Court itself indicates, claims by Christians that their religion forbids Sunday work cannot be deemed bizarre or incredible.


author: Per Curiam. Justice Brennan, Justice Blackmun,

text:
    ZANT, WARDEN v. MOORE
    No. 87-1104.
    Argued November 29, 1988
    Decided March 29, 1989

      Susan V. Boleyn, Senior Assistant Attorney General of Georgia, argued the cause for petitioner. With her on the briefs were Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.

      John Charles Boger argued the cause for respondent. With him on the brief were Daniel J. Givelber and Julius L. Chambers.

        Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.

   Per Curiam.

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Teague v. Lane, ante, p. 288.

Justice Brennan,

concurring.

While I concur in the disposition of this case, I share Justice Blackmun’s concern as to whether petitioner should be permitted to raise the retroactivity issue at this point in the proceedings. In my view this is a matter for the Court of Appeals to address in the first instance, when it reconsiders the case in light of our recent decision in Teague v. Lane, ante, p. 288.

Justice Blackmun,

dissenting.

I would dismiss the petition for certiorari as having been improvidently granted, rather than vacate and remand the case for reconsideration in the light of Teague v. Lane, ante, p. 288. The Court’s discussion of retroactivity in Teague, to be sure, could have some bearing on the issues in this case. But petitioner did not raise nonretroactivity as a defense to respondent’s claim for federal habeas relief, and that defense therefore should be deemed waived.

In Teague, the Court did not consider the claim of non-retroactivity to have been waived. Instead, it addressed retroactivity as a threshold matter. But that approach was dictated by the posture of the case. The petitioner in Teague sought the announcement of a new rule of constitutional law to be applied for the first time in his case. It was this Court’s judgment that no new rule of law should be announced in the first instance in a habeas case if similarly situated habeas petitioners could not benefit from that rule because of established principles of nonretroactivity. The present litigation is in a different posture in that respondent here did not seek the announcement of a new rule of constitutional law in his case in the first instance. I see no reason to give petitioner a second opportunity to interject the issue of nonretroactivity as a defense.

In any event, I must assume that it is not the thrust of this Court’s order to prejudge the availability of a retroactivity defense. That issue is for the Court of Appeals on remand.


author: Per Curiam.

text:
    OKLAHOMA TAX COMMISSION v. GRAHAM et al.
    No. 88-266.
    Argued February 21, 1989
    Decided March 29, 1989

      David Allen Miley argued the cause pro hac vice for petitioner. With him on the briefs was Stanley J. Alexander.

      Bob Rabón argued the cause and filed a brief for respondents.

      Briefs of amici curiae urging affirmance were filed for the Otoe-Missouria Tribe of Indians by F. Broivning Pipestem; for the Sac and Fox Nation et al. by G. William Rice; for the Seneca Nation of Indians et al. by Reid Peyton Chambers and William R. Pemg; and for the Wyandotte Tribe of Oklahoma et al. by Glenn M. Feldman.

        Dennis W. Arrow filed a brief for the Inter-Tribal Council of the Five Civilized Tribes as amicus curiae.

   Per Curiam.

The Chickasaw Nation owns and operates the Chickasaw Motor Inn in Sulphur, Oklahoma. At the inn, the Tribe conducts bingo games and sells cigarettes. Oklahoma filed a complaint against the Chickasaw Tribe and Jan Graham, who managed the enterprise for the Tribe, to collect unpaid state excise taxes on the sale of cigarettes and taxes on the receipts from the bingo games. The Chickasaw Nation, asserting federal-question jurisdiction under 28 U. S. C. § 1381, removed the action from the State District Court in Murray County to the United States District Court for the Eastern District of Oklahoma. The State moved to remand the case, arguing in part that the complaint alleged on its face only state statutory violations and state tax liabilities. The District Court, however, denied the motion. It noted that the complaint sought to apply Oklahoma law to an Indian Tribe and so implicated the federal question of tribal immunity. App. to Pet. for Cert. A25-A26. Shortly thereafter the District Court dismissed the State’s suit, finding it barred by tribal sovereign immunity. Id., at A27-A30.

A divided panel of the Tenth Circuit affirmed. Oklahoma ex rel. Oklahoma Tax Comm’n v. Graham, 822 F. 2d 951 (1987). The majority concluded that removal had been proper because the State’s complaint, although facially based on state law, contained the “implicit federal question” of tribal immunity. It noted that, as a prerequisite to stating jurisdiction over a recognized Indian tribe, it had held in other cases that “an alleged waiver or consent to suit is a necessary element of the well-pleaded complaint.” Id., at 954. Judge Tacha dissented on the ground that a case could not be removed on the basis of a federal defense and that “[i]t is not disputed that the face of the state’s complaint in this case raises only state tax questions.” Id., at 958.

We vacated the Tenth Circuit’s decision and remanded for reconsideration in light of our discussion of removal jurisdiction and the well-pleaded complaint rule in Caterpillar Inc. v. Williams, 482 U. S. 386 (1987). Oklahoma Tax Comm’n v. Graham, 484 U. S. 973 (1987). On reconsideration, the panel of the Tenth Circuit adhered to its previous disposition that removal was proper. Oklahoma ex rel. Oklahoma Tax Comm’n v. Graham, 846 F. 2d 1258 (1988). The court read Caterpillar as holding that, to support federal-question removability, a complaint must on its face present a federal claim. But that rule did not apply to Oklahoma’s complaint, thought the panel, because, although “nothing within the literal language of the pleading even suggests implication of a federal question,” “such a question is inherent within the complaint because of the parties subject to the action.” 846 F. 2d, at 1260. Again, Judge Tacha dissented. We granted certiorari, 488 U. S. 816 (1988).

We think the decision of the Court of Appeals is plainly inconsistent with Caterpillar and reverse it. “Except as otherwise expressly provided by Act of Congress,” a case is not properly removed to federal court unless it might have been brought there originally. 28 U. S. C. § 1441(a). In the present case, the sole alleged basis of original federal jurisdiction is 28 U. S. C. § 1331, giving district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint” rule. “[Wjhether a case is one arising under [federal law], in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U. S. 74, 75-76 (1914); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908).

In Caterpillar, we ruled that the application of the well-pleaded complaint rule defeated federal-question jurisdiction, and therefore removability, in a case in which employees sued on personal, state-law employment contracts. We refused to characterize these state-law claims as arising under federal law even though an interpretation of the collective-bargaining agreement might ultimately provide the employer a complete defense to the individual claims, and even though employee claims on the collective-bargaining agreement would have been the subject of original federal jurisdiction. Caterpillar, supra, at 396-398. The state-law tax claims in the present case must be analyzed in the same manner. Tribal immunity may provide a federal defense to Oklahoma’s claims. See Puyallup Tribe, Inc. v. Washington Game Dept., 433 U. S. 165 (1977). But it has long been settled that the existence of a federal immunity to the claims asserted does not convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law. Gully v. First National Bank, 299 U. S. 109 (1936). The possible existence of a tribal immunity defense, then, did not convert Oklahoma tax claims into federal questions, and there was no independent basis for original federal jurisdiction to support removal.

The jurisdictional question in this case is not affected by the fact that tribal immunity is governed by federal law. As the dissent below observed, Congress has expressly provided by statute for removal when it desired federal courts to adjudicate defenses based on federal immunities. See Willingham v. Morgan, 395 U. S. 402, 406-407 (1969) (removal provision of 28 U. S. C. § 1442(a)(1) for federal officers acting “under color” of federal office sufficient to allow removal of actions in which official immunity could be asserted); Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493, n. 20 (1983) (original federal jurisdiction under 28 U. S. C. § 1330(a) over claims against a foreign sovereign which allege an exception to immunity). Neither the parties nor the courts below have suggested that Congress has statutorily provided for federal-court adjudication of tribal immunity notwithstanding the well-pleaded complaint rule.

As this case was improperly removed from the Oklahoma courts, the merits of the claims of tribal immunity were not properly before the federal courts, and we express no opinion on that question.

The judgment of the Court of Appeals is

Reversed.


text:
    February 21, 1989
    No. 88-669.
    Hofley Manufacturing Co. v. Williams.
   Appeal from Sup. Ct. Mich. Motion of appellee for leave to proceed in forma pauperis granted. Appeal dismissed for want of substantial federal question.


text:
    No. 88-877.
    Karst v. Woods.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

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


text:
    No. 88-895.
    Stanton v. District of Columbia Court of Appeals.
   Appeal from Ct. App. D. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-5392.
    Buller v. First Leasing Co.
   Appeal from Sup. Ct. S. D. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-5536.
    Buller v. Hurley State Bank.
   Appeal from Cir. Ct. S. D., Turner County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-5580.
    Wehringer v. New Hampshire.
   Appeal from Sup. Ct. N. H. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-5914.
    In re Williams.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-6180.
    Rodrigues v. Egger, Commissioner of Internal Revenue, et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-960.
    Liberty Mobilehome Sales, Inc. v. Eamiello et ux.
   Appeal from Sup. Ct. Conn, dismissed for want of jurisdiction.


text:
    No. 88-1067.
    Kavanagh v. Coven.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction.


text:
    No. 88-1009.
    Houde et vir v. Starkweather et al.
   Appeal from App. Div., Sup. Ct. N. Y., 4th Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 88-1059.
    Vroom Developments (Florida), Inc. v. Town of Longboat Key.
   Appeal from Dist. Ct. App. Fla., 2d Dist., dismissed for want of substantial federal question.


text:
    No. 88-1097.
    Richards v. Texas.
   Appeal from Ct. App. Tex., 1st Dist., dismissed for want of substantial federal question.


text:
    No. 87-6315.
    Kaiser v. United States.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Broce, 488 U. S. 563 (1989).


text:
    No. 88-764.
    Jones v. Preuit & Mauldin et al.
   C. A. 11th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Owens v. Okure, 488 U. S. 235 (1989).


text:
    No. 88-1179.
    United States v. Fafowora.
   Certificate from C. A. D. C. Cir. Question certified by the United States Court of Appeals for the District of Columbia Circuit dismissed.


text:
    No.- - ---
    Maurice M. v. Bouknight.
   Motion for leave to proceed in forma pauperis without an affidavit of indigency executed by petitioner granted.


text:
    No. A-524.
    Aaron v. Jones, Warden, et al.
   Application for bail, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-567.
    Associated General Contractors of America et al. v. Occupational Safety and Health Administration, United States Department of Labor, et al. (No. 88-1070); and Associated Builders & Contractors, Inc., et al. v. Occupational Safety and Health Administration, United States Department of Labor, et al. (two cases) (No. 88-1075).
   C. A. 3d Cir. Application for stay, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-582.
    Eubanks et al. v. Wilkinson, Governor of Kentucky, et al.
   D. C. W. D. Ky. Application for stay pending appeal to the United States Court of Appeals for the Sixth Circuit, presented to JUSTICE Scalia, and by him referred to the Court, denied.


text:
    No. A-641.
    Short v. Klein, Guardian of Klein, et al.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Application for stay, addressed to Justice Scalia and referred to the Court, denied.


text:
    No. A-642.
    Carden et al. v. Arkoma Associates.
   Application for stay of enforcement of the mandate of the United States Court of Appeals for the Fifth Circuit, presented to Justice White, and by him referred to the Court, granted pending the timely filing and disposition of a petition for writ of certiorari. This order is conditioned upon the posting of a good and sufficient security with the Clerk of the United States District Court for the Eastern District of Louisiana, the adequacy of such security to be determined by a judge of that court.


text:
    No. D-737.
    In re Disbarment of Weatherly.
    [For earlier order herein, see 488 U. S. 906.]
   Motion to defer consideration denied. Disbarment entered.


text:
    No. D-738.
    In re Disbarment of Burke.
    [For earlier order herein, see 488 U. S. 906.]
   Disbarment entered.


text:
    No. D-744.
    In re Disbarment of Hecht.
    [For earlier order herein, see 488 U. S. 963.]
   Motion to defer consideration denied. Disbarment entered.


text:
    No. D-745.
    In re Disbarment of Denker.
    [For earlier order herein, see 488 U. S. 963.]
   Disbarment entered.


text:
    No. D-747.
    In re Disbarment of Williams.
    [For earlier order herein, see 488 U. S. 978.]
   Disbarment entered.


text:
    No. D-752.
    In re Disbarment of Albin.
    [For earlier order herein, see 488 U. S. 1026.]
   Disbarment entered.


text:
    No. D-766.
    In re Disbarment of Halper.
   It is ordered that Donald Kenneth Halper, of Sherman Oaks, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-767.
    In re Disbarment of Eston.
   It is ordered that Leonard Raymond Eston, of Detroit, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-768.
    In re Disbarment of Sanders.
   It is ordered that Samuel Henry Sanders III, of Birmingham, Ala., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-769.
    In re Disbarment of Smith.
   It is ordered that . William Trickett Smith, of Harrisburg, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-770.
    In re Disbarment of Matthews.
   It is ordered that Michael Joseph Matthews, of Gonzales, La., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 65,
    Orig.
    Texas v. New Mexico.
    [For earlier order herein, see, e. g., 488 U. S. 921.]
   Motion of the River Master for approval of fees and expenses granted, and the River Master is. awarded $5,154.73 for the period July 1 through December 31, 1988, to be paid equally by the parties.


text:
    No. 105,
    Orig.
    Kansas v. Colorado.
    [For earlier order herein, see, e. g., 488 U. S. 978.]
   Motion to refer to the Special Master the motion for leave to amend the complaint granted.


text:
    No. 109, Orig.
    Oklahoma et al. v. New Mexico.
    [For earlier order herein, see, e. g., 488 U. S. 989.]
   Motion of New Mexico for leave to file a supplemental answer granted. Motion of the Special Master for award of fees and expenses granted, and the Special Master is awarded $22,744.99 to be paid equally by the parties.


text:
    No. 111,
    Orig.
    Delaware v. New York.
    [For earlier order herein, see, e. g., 488 U. S. 990.]
   Motion of Texas

for leave to file complaint in intervention granted. The parties are allowed 60 days within which to answer.


text:
    No. 87-1589.
    No. 87-1888.
    Pittsburgh & Lake Erie Railroad Co. v. Railway Labor Executives’ Assn. et al.; and Pittsburgh & Lake Erie Railroad Co. v. Railway Labor Executives’ Assn. et al.
   C. A. 3d Cir. [Certiorari granted, 488 U. S. 965.] Motion of respondent Interstate Commerce Commission for divided argument denied. Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted to be divided as follows: 30 minutes for petitioner; 30 minutes for respondent; and 30 minutes for the Acting Solicitor General, as amicus curiae.


text:
    No. 87-1759.
    Texas State Teachers Assn. et al. v. Garland Independent School District et al.
   C. A. 5th Cir. [Certiorari granted, 488 U. S. 815.] Motion of Texas Association of School Boards et al. for leave to file a brief as amici curiae granted.


text:
    No. 88-40.
    United States v. Zolin et al.
   C. A. 9th Cir. [Certiorari granted, 488 U. S. 907.] Motion of Bernard M. Barrett, Jr., for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for oral argument denied.

Justice Brennan took no part in the consideration or decision of this motion.