author: Justice Kennedy Justice Stevens,

text:
    RODRIGUEZ de QUIJAS et al. v. SHEARSON/AMERICAN EXPRESS, INC.
    No. 88-385.
    Argued March 27, 1989
    Decided May 15, 1989

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Black-MUN, JJ., joined, post, p. 486.

      Denis A. Downey argued the cause and filed briefs for petitioners.

      Theodore A. Krebsbach argued the cause for respondent. With him on the brief was Jeffrey L. Friedman.

         Paul Windels III filed a brief for the Securities Industry Association et al. as amici curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

The question here is whether a predispute agreement to arbitrate claims under the Securities Act of 1933 is unenforceable, requiring resolution of the claims only in a judicial forum.

I

Petitioners are individuals who invested about $400,000 in securities. They signed a standard customer agreement with the broker, which included a clause stating that the parties agreed to settle any controversies “relating to [the] accounts” through binding arbitration that complies with specified procedures. The agreement to arbitrate these controversies is unqualified, unless it is found to be unenforceable under federal or state law. Customer’s Agreement ¶ 13. The investments turned sour, and petitioners eventually sued respondent and its broker-agent in charge of the accounts, alleging that their money was lost in unauthorized and fraudulent transactions. In their complaint they pleaded various violations of federal and state law, including claims under § 12(2) of the Securities Act of 1933, 15 U. S. C. § 77l(2), and claims under three sections of the Securities Exchange Act of 1934.

The District Court ordered all the claims to be submitted to arbitration except for those raised under § 12(2) of the Securities Act. It held that the latter claims must proceed in the court action under our clear holding on the point in Wilko v. Sivan, 346 U. S. 427 (1953). The District Court reaffirmed its ruling upon reconsideration and also entered a default judgment against the broker, who is no longer in the case. The Court of Appeals reversed, concluding that the arbitration agreement is enforceable because this Court’s subsequent decisions have reduced Wilko to “obsolescence.” Rodriguez de Quijas v. Shearson/Lehman Bros., Inc., 845 F. 2d 1296, 1299 (CA5 1988). We granted certiorari, 488 U. S. 954 (1988).

II

The Wilko case, decided in 1953, required the Court to determine whether an agreement to arbitrate future controversies constitutes a binding stipulation “to waive compliance with any provision” of the Securities Act, which is nullified by § 14 of the Act. 15 U. S. C. § 77n. The Court considered the language, purposes, and legislative history of the Securities Act and concluded that the agreement to arbitrate was void under §14. But the decision was a difficult one in view of the competing legislative policy embodied in the Arbitration Act, which the Court described as “not easily reconcilable,” and which strongly favors the enforcement of agreements to arbitrate as a means of securing “prompt, economical and adequate solution of controversies.” 346 U. S., at 438.

It has been recognized that Wilko was not obviously correct, for “the language prohibiting waiver of ‘compliance with any provision of this title’ could easily have been read to relate to substantive provisions of the Act without including the remedy provisions.” Alberto-Culver Co. v. Scherk, 484 F. 2d 611, 618, n. 7 (CA7 1973) (Stevens, J., dissenting), rev’d, 417 U. S. 506 (1974). The Court did not read the language this way in Wilko, however, and gave two reasons. First, the Court rejected the argument that “arbitration is merely a form of trial to be used in lieu of a trial at law.” 346 U. S., at 433. The Court found instead that § 14 does not permit waiver of “the right to select the judicial forum” in favor of arbitration, id., at 435, because “arbitration lacks the certainty of a suit at law under the Act to enforce [the buyer’s] rights,” id., at 432. Second, the Court concluded that the Securities Act was intended to protect buyers of securities, who often do not deal at arm’s length and on equal terms with sellers, by offering them “a wider choice of courts and venue” than is enjoyed by participants in other business transactions, making “the right to select the judicial forum” a particularly valuable feature of the Securities Act. Id., at 435.

We do not think these reasons justify an interpretation of § 14 that prohibits agreements to arbitrate future disputes relating to the purchase of securities. The Court’s characterization of the arbitration process in Wilko is pervaded by what Judge Jerome Frank called “the old judicial hostility to arbitration.” Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F. 2d 978, 985 (CA2 1942). That view has been steadily eroded over the years, beginning in the lower courts. See Scherk, supra, at 616 (Stevens, J., dissenting) (citing cases). The erosion intensified in our most recent decisions upholding agreements to arbitrate federal claims raised under the Securities Exchange Act of 1934, see Shear- son/American Express Inc. v. McMahon, 482 U. S. 220 (1987), under the Racketeer Influenced and Corrupt Organizations (RICO) statutes, see ibid., and under the antitrust laws, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985). See also Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 221 (1985) (federal arbitration statute “requires that we rigorously enforce agreements to arbitrate”); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 24 (1983) (“[(Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration”). The shift in the Court’s views on arbitration away from those adopted in Wilko is shown by the flat statement in Mitsubishi: “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” 473 U. S., at 628. To the extent that Wilko rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.

Once the outmoded presumption of disfavoring arbitration proceedings is set to one side, it becomes clear that the right to select the judicial forum and the wider choice of courts are not such essential features of the Securities Act that § 14 is properly construed to bar any waiver of these provisions. Nor are they so critical that they cannot be waived under the rationale that the Securities Act was intended to place buyers of securities on an equal footing with sellers. Wilko identified two different kinds of provisions in the Securities Act that would advance this objective. Some are substantive, such as the provision placing on the seller the burden of proving lack of scienter when a buyer alleges fraud. See 346 U. S., at 431, citing 15 U. S. C. §77Z(2). Others are procedural. The specific procedural improvements highlighted in Wilko are the statute’s broad venue provisions in the federal courts; the existence of nationwide service of process in the federal courts; the extinction of the amount-in-controversy requirement that had applied to fraud suits when they were brought in federal courts under diversity jurisdiction rather than as a federal cause of action; and the grant of concurrent jurisdiction in the state and federal courts without possility of removal. See 346 U. S., at 431, citing 15 U. S. C. § 77v(a).

There is no sound basis for construing the prohibition in § 14 on waiving “compliance with any provision” of the Securities Act to apply to these procedural provisions. Although the first three measures do facilitate suits by buyers of securities, the grant of concurrent jurisdiction constitutes explicit authorization for complainants to waive those protections by filing suit in state court without possibility of removal to federal court. These measures, moreover, are present in other federal statutes which have not been interpreted to prohibit enforcement of predispute agreements to arbitrate. See Shear son/American Express Inc. v. McMahon, supra (construing the Securities Exchange Act of 1934; see 15 U. S. C. § 78aa); ibid, (construing the RICO statutes; see 18 U. S. C. § 1965); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., supra (construing the antitrust laws; see 15 U. S. C. § 15).

Indeed, in McMahon the Court declined to read § 29(a) of the Securities Exchange Act of 1934, the language of which is in every respect the same as that in § 14 of the 1933 Act, compare 15 U. S. C. § 77v(a) with § 78aa, to prohibit enforcement of predispute agreements to arbitrate. The only conceivable distinction in this regard between the Securities Act and the Securities Exchange Act is that the former statute allows concurrent federal-state jurisdiction over causes of action and the latter statute provides for exclusive federal jurisdiction. But even if this distinction were thought to make any difference at all, it would suggest that arbitration agreements, which are “in effect, a specialized kind of forum-selection clause,” Scherk v. Alberto-Culver Co., 417 U. S. 506, 519 (1974), should not be prohibited under the Securities Act, since they, like the provision for concurrent jurisdiction, serve to advance the objective of allowing buyers of securities a broader right to select the forum for resolving disputes, whether it be judicial or otherwise. And in McMahon we explained at length why we rejected the Wilko Court’s aversion to arbitration as a forum for resolving disputes over securities transactions, especially in light of the relatively recent expansion of the Securities and Exchange Commission’s authority to oversee and to regulate those arbitration procedures. 482 U. S., at 231-234. We need not repeat those arguments here.

Finally, in McMahon we stressed the strong language of the Arbitration Act, which declares as a matter of federal law that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. Under that statute, the party opposing arbitration carries the burden of showing that Congress intended in a separate statute to preclude a waiver of judicial remedies, or that such a waiver of judicial remedies inherently conflicts with the underlying purposes of that other statute. 482 U. S., at 226-227. But as Justice Frankfurter said in dissent in Wilko, so it is true in this case: “There is nothing in the record before us, nor in the facts of which we can take judicial notice, to indicate that the arbitral system . . . would not afford the plaintiff the rights to which he is entitled.” 346 U. S., at 439. Petitioners have not carried their burden of showing that arbitration agreements are not enforceable under the Securities Act.

The language quoted above from § 2 of the Arbitration Act also allows the courts to give relief where the party opposing arbitration presents “well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’” Mitsubishi, 473 U. S., at 627. This avenue of relief is in harmony with the Securities Act’s concern to protect buyers of securities by removing “the disadvantages under which buyers labor” in their dealings with sellers. Wilko, supra, at 435. Although petitioners suggest that the agreement to arbitrate here was adhesive in nature, the record contains no factual showing sufficient to support that suggestion.

Ill

We do not suggest that the Court of Appeals on its own authority should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. We now conclude that Wilko was incorrectly decided and is inconsistent with the prevailing uniform construction of other federal statutes governing arbitration agreements in the setting of business transactions. Although we are normally and properly reluctant to overturn our decisions construing statutes, we have done so to achieve a uniform interpretation of similar statutory language, Commissioner v. Estate of Church, 335 U. S. 632, 649-650 (1949), and to correct a seriously erroneous interpretation of statutory language that would undermine congressional policy as expressed in other legislation, see, e. g., Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 240-241 (1970) (overruling Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962)). Both purposes would be served here by overruling the Wilko decision.

It also would be undesirable for the decisions in Wilko and McMahon to continue to exist side by side. Their inconsistency is at odds with the principle that the 1933 and 1934 Acts should be construed harmoniously because they “constitute interrelated components of the federal regulatory scheme governing transactions in securities.” Ernst & Ernst v. Hochfelder, 425 U. S. 185, 206 (1976). In this case, for example, petitioners’ claims under the 1934 Act were subjected to arbitration, while their claim under the 1933 Act was not permitted to go to arbitration, but was required to proceed in court. That result makes little sense for similar claims, based on similar facts, which are supposed to arise within a single federal regulatory scheme. In addition, the inconsistency between Wilko and McMahon undermines the essential rationale for a harmonious construction of the two statutes, which is to discourage litigants from manipulating their allegations merely to cast their claims under one of the securities laws rather than another. For all of these reasons, therefore, we overrule the decision in Wilko.

Petitioners argue finally that if the Court overrules Wilko, it should not apply its ruling retroactively to the facts of this case. We disagree. The general rule of long standing is that the law announced in the Court’s decision controls the case at bar. See, e. g., Saint Francis College v. Al-Khazraji, 481 U. S. 604, 608 (1987); United States v. Schooner Peggy, 1 Cranch 103, 109 (1801). In some civil cases, the Court has restricted its rulings to have prospective application only, where specific circumstances are present. Chevron Oil v. Huson, 404 U. S. 97, 106-107 (1971). Under the Chevron approach, the customary rule of retroactive application is appropriate here. Although our decision to overrule Wilko establishes a new principle of law for arbitration agreements under the Securities Act, this ruling furthers the purposes and effect of the Arbitration Act without undermining those of the Securities Act. Today’s ruling, moreover, does not produce “substantial inequitable results,” 404 U. S., at 107, for petitioners do not make any serious allegation that they agreed to arbitrate future disputes relating to their investment contracts in reliance on Wilko’s holding that such agreements would be held unenforceable by the courts. Our conclusion is reinforced by our assessment that resort to the arbitration process does not inherently undermine any of the substantive rights afforded to petitioners under the Securities Act.

The judgment of the Court of Appeals is

Affirmed.

Justice Stevens,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join,

dissenting.

The Court of Appeals refused to follow Wilko v. Sivan, 346 U. S. 427 (1953), a controlling precedent of this Court. As the majority correctly acknowledges, ante, at 484, the Court of Appeals therefore engaged in an indefensible brand of judicial activism. We, of course, are not subject to the same restraint when asked to upset one of our own precedents. But when our earlier opinion gives a statutory provision concrete meaning, which Congress elects not to amend during the ensuing 354 decades, our duty to respect Congress’ work product is strikingly similar to the duty of other federal courts to respect our work product.

In the final analysis, a Justice’s vote in a case like this depends more on his or her views about the respective lawmaking responsibilities of Congress and this Court than on conflicting policy interests. Judges who have confidence in their own ability to fashion public policy are less hesitant to change the law than those of us who are inclined to give wide latitude to the views of the voters’ representatives on non-constitutional matters. Cf. Boyle v. United Technologies Corp., 487 U. S. 500 (1988). As I pointed out years ago, Alberto-Culver Co. v. Scherk, 484 F. 2d 611, 615-620 (CA7 1973) (dissenting opinion), rev’d, 417 U. S. 506 (1974), there are valid policy and textual arguments on both sides regarding the interrelation of federal securities and arbitration Acts. See ante, at 479-484. None of these arguments, however, carries sufficient weight to tip the balance between judicial and legislative authority and overturn an interpretation of an Act of Congress that has been settled for many years.

I respectfully dissent.

       The Court carefully limited its holding to apply only to arbitration agreements which are made “prior to the existence of a controversy.” 346 U. S., at 438; see id., at 438-439 (Jackson, J., concurring). In contrast, “courts uniformly have concluded that Wilko does not apply to the submission to arbitration of existing disputes.” Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 233 (1987).

       After the Court decided Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987), numerous District Courts also deviated from the rule established in Wilko v. Sivan, and enforced predispute arbitration clauses in suits brought pursuant to the Securities Act of 1933. E. g., Reed v. Bear, Stearns & Co., 698 F. Supp. 835 (Kan. 1988); Ryan v. Liss, Tenner & Goldberg Securities Corp., 683 F. Supp. 480 (NJ 1988); Kavouras v. Visual Products Systems, Inc., 680 F. Supp. 205 (WD Pa. 1988); Aronson v. Dean Witter Reynolds, Inc., 675 F. Supp. 1324 (SD Fla. 1987); DeKuyperv. A. G. Edwards & Sons, Inc., 695 F. Supp. 1367 (Conn. 1987); Rosenblum v. Drexel Burnham Lambert Inc., 700 F. Supp. 874 (ED La. 1987); Staiman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 673 F. Supp. 1009 (CD Cal. 1987).

       Cf. McMahon, 482 U. S., at 268 (Stevens, J., concurring in part and dissenting in part) (“[A]fter a statute has been construed ... by this Court ... it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This position reflects both respect for Congress’ role, see Boys Market, Inc. v. Retail Clerks, 398 U. S. 235, 257-258 (1970) (Black, J., dissenting), and the compelling need to preserve the courts’ limited resources, see B. Cardozo, The Nature of the Judicial Process 149 (1921)”).

       Indeed the Court first debated some of these arguments in the precedent-setting opinion that the majority now overrules. Compare Wilko, 346 U. S., at 432-438, with id., at 439-440 (Frankfurter, J., dissenting). Most recently they were revisited in McMahon, supra, an action based upon the Securities Exchange Act of 1934. Compare 482 U. S., at 225-238, with id., at 243-266 (Blackmun, J., concurring in part and dissenting in part).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MALENG, KING COUNTY PROSECUTING ATTORNEY, et al. v. COOK
    No. 88-357.
    Argued March 27, 1989
    Decided May 15, 1989

      Kenneth O. Eikenberry, Attorney General of Washington, argued the cause for petitioners. With him on the briefs were William L. Williams, Senior Assistant Attorney General, and John M. Jones, Assistant Attorney General.

      John B. Midgley argued the cause and filed a brief for respondent.

       Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Sheryl Gordon McCloud and John A. Powell; and for the National Legal Aid and Defender Association by Alan Raphael.

   Per Curiam.

In 1958, respondent was convicted of robbery in Washington state court and sentenced to 20 years of imprisonment; this sentence expired by its terms in 1978. In 1976, while on parole from that sentence, he was convicted of two counts of assault and one count of aiding a prisoner to escape; in 1978, the State sentenced him to two life terms and one 10-year term on those convictions. These sentences were maximum terms under Washington’s then-indeterminate sentencing scheme, with the minimum term to be set by the Board of Prison Terms and Paroles. Under Washington law, the 1958 conviction will increase by several years the mandatory minimum term which respondent will have to serve on his 1978 sentences.

In 1976 respondent was also convicted of bank robbery and conspiracy in federal court and sentenced to 30 years of imprisonment. He is currently serving his federal sentence in a federal penitentiary in California, but the State of Washington has lodged a detainer against him with federal prison authorities. Respondent is scheduled to begin serving the sentences imposed upon him by the Washington courts in 1978 at the expiration of his federal term.

In 1985, while in federal prison, respondent filed a pro se petition for habeas corpus relief in the United States District Court for the Western District of Washington. Respondent’s petition listed the 1958 Washington conviction as the “conviction under attack,” alleging that it was invalid because respondent had not been given a competency hearing, even though there was reasonable doubt as to his competency to stand trial. Respondent also alleged that the 1958 conviction had been used illegally to enhance his 1978 state sentences, which he had not yet begun to serve. The District Court dismissed the petition for lack of subject-matter jurisdiction, holding that respondent was not “in custody” for the purposes of a habeas attack on the 1958 conviction because the sentence imposed for that conviction had already expired. The Court of Appeals for the Ninth Circuit reversed. 847 P. 2d 616 (1988). The Court of Appeals held that respondent was still “in custody” under the 1958 conviction, even though the sentence imposed for that conviction had expired, because it had been used to enhance the sentences imposed in 1978 for his 1976 state convictions, which he had yet to serve. Id., at 618-619. We granted certiorari to review this interpretation of the “in custody” requirement. 488 U. S. 941 (1988). We conclude that respondent is not presently “in custody” under the 1958 sentence, but that he is “in custody” under the 1978 state sentences which he has not yet begun to serve.

The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2241(c)(3) (emphasis added); see also 28 U. S. C. § 2254(a). We have interpreted the statutory language as requiring that the habeas petitioner be “in custody” under the conviction or sentence under attack at the time his petition is filed. See Carafas v. LaVallee, 391 U. S. 234, 238 (1968). In this case, the Court of Appeals held that a habeas petitioner may be “in custody” under a conviction whose sentence has fully expired at the time his petition is filed, simply because that conviction has been used to enhance the length of a current or future sentence imposed for a subsequent conviction. We think that this interpretation stretches the language “in custody” too far.

Our interpretation of the “in custody” language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus. In Jones v. Cunningham, 371 U. S. 236 (1963), for example, we held that a prisoner who had been placed on parole was still “in custody” under his unexpired sentence. We reasoned that the petitioner’s release from physical confinement under the sentence in question was not unconditional; instead, it was explicitly conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities. Id., at 242; see also Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara County, 411 U. S. 345 (1973); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973).

We have never held, however, that a habeas petitioner may be “in custody” under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Indeed, our decision in Carafas v. LaVallee, supra, strongly implies the contrary. In Carafas, the petitioner filed his habeas application while he was actually incarcerated under the sentence he sought to attack, but his sentence expired and he was unconditionally discharged from custody while his appeal from the denial of habeas relief below was pending before this Court. The State argued that the unconditional discharge rendered the case moot. We rejected this argument, holding that the “collateral consequences” of the petitioner’s conviction — his inability to vote, engage in certain businesses, hold public office, or serve as a juror — prevented the case from being moot. Id., at 237-238. We went on to say, however, that the unconditional release raised a “substantial issue” as to the statutory “in custody” requirement. Id., at 238. While we ultimately found that requirement satisfied as well, we rested that holding not on the collateral consequences of the conviction, but on the fact that the petitioner had been in physical custody under the challenged conviction at the time the petition was filed. Ibid. The negative implication of this holding is, of course, that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual “in custody” for the purposes of a habeas attack upon it.

The question presented by this case is whether a habeas petitioner remains “in custody” under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the “in custody” requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all States have habitual offender statutes, and many States provide as Washington does for specific enhancement of subsequent sentences on the basis of prior convictions, a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the “in custody” requirement out of the statute and be contrary to the clear implication of the opinion in Carafas v. LaVallee, supra.

In this case, of course, the possibility of a sentence upon a subsequent conviction being enhanced because of the prior conviction actually materialized, but we do not think that requires any different conclusion. When the second sentence is imposed, it is pursuant to the second conviction that the petitioner is incarcerated and is therefore “in custody.”

We do think, however, that respondent may challenge the sentences imposed upon him by the State of Washington in 1978, even though he is not presently serving them. In Mc-Nally v. Hill, 293 U. S. 131 (1934), we held that the “in custody” requirement meant present physical confinement under the conviction or sentence under attack. Were this rule still the law, respondent would not be “in custody” even under the 1978 sentences, because he has not yet begun to serve them. But in Peyton v. Rowe, 391 U. S. 54 (1968), we overruled McNally and held that a petitioner who was serving two con-' secutive sentences imposed by the Commonwealth of Virginia could challenge the second sentence which he had not yet begun to serve.

While in this case respondent is serving a federal sentence, rather than another sentence imposed by the State of Washington, we do not think this factual difference from Peyton v. Rowe requires a different result. The State of Washington has placed a detainer with the federal authorities to ensure that at the conclusion of respondent’s federal sentence, he will be returned to the state authorities to begin serving his 1978 state sentences. In Braden v. 30th Judicial Circuit Court of Ky., supra, we held that a prisoner serving a sentence in Alabama, who was subject to a detainer filed with his Alabama jailers by Kentucky officials, was “in custody” for the purpose of a habeas attack on the outstanding Kentucky charge upon which the detainer rested. We think that Braden and Peyton together require the conclusion that respondent in this case was “in custody” under his 1978 state sentences at the time he filed. Since we think respondent’s habeas petition, construed with the deference to which pro se litigants are entitled, Haines v. Kerner, 404 U. S. 519 (1972), can be read as asserting a challenge to the 1978 sentences, as enhanced by the allegedly invalid prior conviction, see United States v. Tucker, 404 U. S. 443 (1972), we affirm the Court of Appeals’ finding that respondent has satisfied the “in custody” requirement for federal habeas jurisdiction.

Our holding is limited to the narrow issue of “custody” for subject-matter jurisdiction of the habeas court. We express no view on the extent to which the 1958 conviction itself may be subject to challenge in the attack upon the 1978 sentences which it was used to enhance. See 28 U. S. C. §2254 Rule 9(a).

The judgment of the Court of Appeals is

Affirmed.

       Respondent also alleged that the 1958 conviction had been used to enhance the federal sentence which he was serving at the time of the filing. The courts below did not address that contention, however, and respondent has not pressed it before this Court. Accordingly, we do not consider it here.


author:
Justice Brennan
      Justice Scalia,

text:
    LAURO LINES s.r.l. v. CHASSER et al.
    No. 88-23.
    Argued April 17, 1989
    Decided May 22, 1989

      Brennan, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, post, p. 502.

      Raymond A. Connell argued the cause for petitioner. With him on the briefs were John R. Geraghty and LeRoy Lambert. Daniel J. Dougherty filed a brief for Chandris, Inc., respondent under this Court’s Rule 19.6 in support of petitioner.

      Arnold I. Burns argued the cause for respondents. On the brief were Morris J. Eisen and William P. Larsen, Jr.

   Justice Brennan

delivered the opinion of the Court.

We granted certiorari to consider whether an interlocutory order of a United States District Court denying a defendant’s motion to dismiss a damages action on the basis of a contractual forum-selection clause is immediately appealable under 28 U. S. C. § 1291 as a collateral final order. We hold that it is not.

I

The individual respondents were, or represent the estates of persons who were, passengers aboard the cruise ship Achille Lauro when it was hijacked by terrorists in the Mediterranean in October 1985. Petitioner Lauro Lines s.r.l., an Italian company, owns the Achille Lauro. Respondents filed suits against Lauro Lines in the District Court for the Southern District of New York to recover damages for injuries sustained as a result of the hijacking and for the wrongful death of passenger Leon Klinghoffer. Lauro Lines moved before trial to dismiss the actions, citing the'forum-selection clause printed on each passenger ticket. This clause purported to obligate the passenger to institute any suit arising in connection with the contract in Naples, Italy, and to renounce the right to sue elsewhere.

The District Court denied petitioner’s motions to dismiss, holding that the ticket as a whole did not give reasonable notice to passengers that they were waiving the opportunity to sue in a domestic forum. Without moving for certification for immediate appeal pursuant to 28 U. S. C. § 1292(b), Lauro Lines sought to appeal the District Court’s orders. The Court of Appeals for the Second Circuit dismissed petitioner’s appeal on the ground that the District Court’s orders denying petitioner’s motions to dismiss were interlocutory and not appealable under § 1291. The court held that the orders did not fall within the exception to the rule of nonappealability carved out for collateral final orders in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). 844 F. 2d 50 (1988). We granted certiorari to resolve a disagreement among the Courts of Appeals. 488 U. S. 887 (1988). Compare, e. g., 844 F. 2d 50 (1988) (case below); Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F. 2d 860, 862-863 (CA7) (holding prejudgment denial of motion to dismiss on basis of forum-selection clause not to be immediately appeal-able under § 1291), cert. denied, 469 U. S. 890 (1984), with Hodes v. S. N. C. Achille Lauro ed Altri-Gestione, 858 F. 2d 905, 908 (CA3 1988), cert. dism’d, 490 U. S. 1001 (1989); Sterling Forest Associates, Ltd. v. Barnett-Range Corp., 840 F. 2d 249, 253 (CA4 1988); Farmland Industries, Inc. v. Frazier-Parrott Commodities, Inc., 806 F. 2d 848, 851 (CA8 1986) (holding such denial to be an immediately appealable collateral final order). We now affirm.

II

Title 28 U. S. C. § 1291 provides for appeal to the courts of appeals only from “final decisions of the district courts of the United States.” For purposes of § 1291, a final judgment is generally regarded as “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). An order denying a motion to dismiss a civil action on the ground that a contractual forum-selection clause requires that such suit be brought in another jurisdiction is not a decision on the merits that ends the litigation. On the contrary, such an order “ensures that litigation will continue in the District Court.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 275 (1988). Section 1291 thus permits an appeal only if an order denying a motion to dismiss based upon a forum-selection clause falls within the “narrow exception to the normal application of the final judgment rule [that] has come to be known as the collateral order doctrine.” Midland Asphalt Corp. v. United States, 489 U. S. 794, 798 (1989). That exception is for a “small class” of prejudgment orders that “finally determine claims of right separable from, and collateral to, rights asserted in the action, [and that are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, supra, at 546. We have held that to fall within the Cohen exception, an order must satisfy at least three conditions: “It must ‘conclusively determine the disputed question,’ ‘resolve an important issue completely separate from the merits of the action,’ and ‘be effectively unreviewable on appeal from a final judgment.’” Richardson-Merrell Inc. v. Roller, 472 U. S. 424, 431 (1985), quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978). For present purposes, we need not decide whether an order denying a dismissal motion based upon a contractual forum-selection clause conclusively determines a disputed issue, or whether it resolves an important issue that is independent of the merits of the action, for the District Court’s orders fail to satisfy the third requirement of the collateral order test.

We recently reiterated the “general rule” that an order is “effectively unreviewable” 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.’” Midland Asphalt Corp., supra, at 798, quoting United States v. MacDonald, 435 U. S. 850, 860 (1978). If it is eventually decided that the District Court erred in allowing trial in this case to take place in New York, petitioner will have been put to unnecessary trouble and expense, and the value of its contractual right to an Italian forum will have been diminished. It is always true, however, that “there is value ... in triumphing before trial, rather than after it,” MacDonald, supra, at 860, n. 7, and this Court has declined to find the costs associated with unnecessary litigation to be enough to warrant allowing the immediate appeal of a pretrial order, see Richardson-Merrell Inc., supra, at 436 (“[T]he possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress” in § 1291). Instead, we have insisted that the right asserted be one that is essentially destroyed if its vindication must be postponed until trial is completed.

We have thus held in cases involving criminal prosecutions that the deprivation of a right not to be tried is effectively unreviewable after final judgment and is immediately appeal-able. Helstoski v. Meanor, 442 U. S. 500 (1979) (denial of motion to dismiss under the Speech or Debate Clause); Abney v. United States, 431 U. S. 651 (1977) (denial of motion to dismiss on double jeopardy grounds). See Midland Asphalt Corp., supra, at 801 (“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”) (emphasis added). Similarly, in civil cases, we have held that the denial of a motion to dismiss based upon a claim of absolute immunity from suit is immediately appealable prior to final judgment, Nixon v. Fitzgerald, 457 U. S. 731, 742-743 (1982), “for the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action,” Mitchell v. Forsyth, 472 U. S. 511, 525 (1985). And claims of qualified immunity may be pursued by immediate appeal, because qualified immunity too “is an immunity from suit.” Id., at 526 (emphasis in original).

On the other hand, we have declined to hold the collateral order doctrine applicable where a district court has denied a claim, not that the defendant has a right not to be sued at all, but that the suit against the defendant is not properly before the particular court because it lacks jurisdiction. In Van Cauwenberghe v. Biard, 486 U. S. 517 (1988), a civil defendant moved for dismissal on the ground that he had been immune from service of process because his presence in the United States had been compelled by extradition to face criminal charges. We noted that, after Mitchell, “[t]he critical question ... is whether ‘the essence’ of the claimed right is a right not to stand trial,” 486 U. S., at 524, and held that the immunity from service of process defendant asserted did not amount to an immunity from suit — even though service was essential to the trial court’s jurisdiction over the defendant. See also Catlin v. United States, 324 U. S., at 236 (order denying motion to dismiss petition for condemnation of land not immediately appealable, “even when the motion is based upon jurisdictional grounds”).

Lauro Lines argues here that its contractual forum-selection clause provided it with a right to trial before a tribunal in Italy, and with a concomitant right not to be sued anywhere else. This “right not to be haled for trial before tribunals outside the agreed forum,” petitioner claims, cannot effectively be vindicated by appeal after trial in an improper forum. Brief for Petitioner 38-39. There is no obviously correct way to characterize the right embodied in petitioner’s forum-selection provision: “all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial.” Van Cauwenberghe, supra, at 524. The right appears most like the right to be free from trial if it is characterized — as by petitioner — as a right not to be sued at all except in a Neapolitan forum. It appears less like a right not to be subjected to suit if characterized — as by the Court of Appeals — as “a right to have the binding adjudication of claims occur in a certain forum.” 844 F. 2d, at 55. Cf. Van Cauwenberghe, supra, at 526-527. Even assuming that the former characterization is proper, however, petitioner is obviously not entitled under the forum-selection clause of its contract to avoid suit altogether, and an entitlement to avoid suit is different in kind from an entitlement to be sued only in a particular forum. Petitioner’s claim that it may be sued only in Naples, while not perfectly secured by appeal after final judgment, is adequately vindicable at that stage — surely as effectively vindicable as a claim that the trial court lacked personal jurisdiction over the defendant — and hence does not fall within the third prong of the collateral order doctrine.

Petitioner argues that there is a strong federal policy favoring the enforcement of foreign forum-selection clauses, citing The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), and that “the essential concomitant of this strong federal policy ... is the right of immediate appellate review of district court orders denying their enforcement.” Brief for Petitioner 40-41. A policy favoring enforcement of forum-selection clauses, however, would go to the merits of petitioner’s claim that its ticket agreement requires that any suit be filed in Italy and that the agreement should be enforced by the federal courts. Immediate appealability of a prejudgment order denying enforcement, insofar as it depends upon satisfaction of the third prong of the collateral order test, turns on the precise contours of the right asserted, and not upon the likelihood of eventual success on the merits. The Court of Appeals properly dismissed petitioner’s appeal, and its judgment is

Affirmed.

Justice Scalia,

concurring.

I join the opinion of the Court and write separately only to make express what seems to me implicit in its analysis.

The reason we say that the right not to be sued elsewhere than in Naples is “adequately vindicable,” ante, at 501, by merely reversing any judgment obtained in violation of it is, quite simply, that the law does not deem the right important enough to be vindicated by, as it were, an injunction against its violation obtained through interlocutory appeal. The importance of the right asserted has always been a significant part of our collateral order doctrine. When first formulating that doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), we said that it permits interlocutory appeal of final determinations of claims that are not only “separable from, and collateral to, rights asserted in the action,” but also, we immediately added, “too important to be denied review.” Id., at 546 (emphasis added). Our later cases have retained that significant requirement. For example, in Abney v. United States, 431 U. S. 651 (1977), we said that in order to qualify for immediate appeal the order must involve “an important right which would be ‘lost, probably irreparably,’ if review had to await final judgment.” Id., at 658 (emphasis added), quoting Cohen, supra, at 546. And in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978), we said that the order must “resolve an important issue completely separate from the merits of the action.” Id., at 468 (emphasis added). See also Van Cauwenberghe v. Biard, 486 U. S. 517, 522-527 (1988); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 276-277 (1988); Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 431 (1985); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 12 (1983); Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982).

While it is true, therefore, that the “right not to be sued elsewhere than in Naples” is not fully vindicated ^indeed, to be utterly frank, is positively destroyed — by permitting the trial to occur and reversing its outcome, that is vindication enough because the right is not sufficiently important to overcome the policies militating against interlocutory appeals. We have made that judgment when the right not to be tried in a particular court has been created through jurisdictional limitations established by Congress or by international treaty, see Van Cauwenberghe, supra. The same judgment applies — if anything, a fortiori — when the right has been created by private agreement.