author: Justice O’Connor,

text:
    CALIFORNIA v. AMERICAN STORES COMPANY et al.
    No. A-151.
    Decided August 22, 1989
   Justice O’Connor,

Circuit Justice.

Applicant, the State of California, requests a stay of the mandate of the judgment of the United States Court of Appeals for the Ninth Circuit, pending disposition of its petition for a writ of certiorari.

Applicant, through its attorney general on behalf of himself and as parens patriae, brought the underlying action as a private plaintiff to enjoin the merger of respondent Lucky Stores, Inc., the largest retail grocery chain in California, and respondent American Stores Company, operator of Alpha Beta, the fourth largest retail grocery chain in California. Applicant contends that the merger would substantially lessen competition in the relevant markets, in violation of §7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. §18, §1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and California’s Cartwright Antitrust and Unfair Competition Acts, Cal. Bus. & Prof. Code Ann. §§ 16700-16761 and 17200-17208 (West 1987 and Supp. 1989).

The District Court granted applicant’s motion for a preliminary injunction and ordered respondents to operate the two companies independently and refrain from merging or integrating their assets and businesses during the pendency of the action. 697 F. Supp. 1125 (CD Cal. 1988). The court concluded:

“The overwhelming statistical evidence has demonstrated a strong probability that the proposed merger will substantially lessen competition in violation of Section 7 of the Clayton Act. This showing has not been rebutted by clear evidence that the proposed merger will not, in fact, substantially lessen competition. . . . [U]n-less defendants are enjoined, the citizens of California will be substantially and irreparably harmed. While the Court in no way belittles the harm defendants may suffer as a result of this preliminary injunction, the Court concludes that it is substantially less than the harm plaintiff would suffer if the merger is not enjoined.” Id., at 1135.

The Court of Appeals for the Ninth Circuit affirmed in part and reversed and remanded in part. 872 F. 2d 837 (1989). The Court of Appeals affirmed the District Court’s finding that applicant had shown a likelihood of success on the merits and the possibility of irreparable harm. Id., at 844. The Court of Appeals found, however, that the remedy ordered by the District Court amounted to indirect divestiture, which, the Court of Appeals held, was not a remedy available to private plaintiffs under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U. S. C. §26. 872 F. 2d, at 844-846. Accordingly, the Court of Appeals remanded the case, concluding that the District Court’s order enjoining respondents from integrating their operations was overly broad and thus an abuse of discretion. Id., at 845-846.

The Court of Appeals denied applicant’s petition for rehearing and rehearing en banc, but granted a stay of its mandate for 30 days to enable applicant to file a petition for a writ of certiorari with this Court. The Court of Appeals also partially remanded the case to the District Court to determine whether, pursuant to Federal Rule of Appellate Procedure 41(b), a bond or other security or condition should be required of applicant as a condition of the stay. The District Court ordered applicant to post an initial bond of $16,288,898 to protect respondents against potential financial losses as a result of the stay of mandate. Applicant, claiming budgetary and administrative impossibility, declined to post the bond and appealed the bond order. The Court of Appeals consequently vacated its stay and ordered issuance of the mandate.

In its application for a stay of the mandate pending this Court’s disposition of its petition for certiorari, applicant contends that the Court of Appeals’ bond requirement amounts to a denial of a stay and will result in irreparable harm to the State’s consumers because .of the merger’s anticompetitive effects. Applicant also maintains that there is both a reasonable probability that its petition for a writ of certiorari will be granted, because the case presents an issue of great importance on which there is a conflict among the Circuits, and a fair prospect that applicant will prevail on the merits. Finally, applicant asserts that the equities justify a stay of the Court of Appeals’ mandate.

I am persuaded that applicant has set forth sufficient reasons for granting a stay in this case. I agree with both the District Court and the Court of Appeals that applicant has made an adequate showing of irreparable injury. See 872 F. 2d, at 844 (lessening of competition “is precisely the kind of irreparable injury that injunctive relief under section 16 of the Clayton Act was intended to prevent”) (citations omitted); 697 F. Supp., at 1134. Even if applicant is free to seek other appropriate injunctive relief on remand, the possibility of irreparable injury, it seems to me, remains to the extent that such other relief would be inadequate to remedy the injury. Cf. 2 P. Areeda & D. Turner, Antitrust Law § 328b, p. 137 (1978) (“[Djivestiture is the normal and usual remedy against an unlawful merger, whether sued by the government or by a private plaintiff”).

Moreover, the issue presented appears to be an important question of federal law over which the Circuits are in conflict. Section 16 of the Clayton Act provides in relevant part that “[a]ny person . . . shall be entitled to sue for and have injunc-tive relief. . . against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity.” 15 U. S. C. §26. The Court of Appeals, relying on Circuit precedent, held that divestiture, whether direct or indirect, did not constitute “injunctive relief” within the meaning of § 16. See 872 F. 2d, at 844-846 (citing International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F. 2d 913, 920 (CA9 1975)); accord, Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F. 2d 1050, 1060 (CA6), cert. denied, 469 U. S. 1036 (1984). As applicant notes, however, the Court of Appeals for the First Circuit has ruled that divestiture is a remedy available to private plaintiffs under §16 in appropriate circumstances. Compania Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F. 2d 404, 413-430 (1985); see also NBO Industries Treadway Cos. v. Brunswick Corp., 523 F. 2d 262, 278-279 (CA3 1975) (dictum), vacated on other grounds, 429 U. S. 477 (1977). A number of District Courts have also reached the same conclusion. See, e. g., Tasty Baking Co. v. Ralston Purina, Inc., 653 F. Supp. 1250, 1255-1256 (ED Pa. 1987); Julius Nasso Concrete Corp. v. Dic Concrete Corp., 467 F. Supp. 1016, 1024-1025 (SDNY 1979); Credit Bureau Reports, Inc. v. Retail Credit Co., 358 F. Supp. 780, 797 (SD Tex. 1971), aff’d, 476 F. 2d 989 (CA5 1973); Bay Guardian Co. v. Chronicle Publishing Co., 340 F. Supp. 76, 81-82 (ND Cal.1972). Given the conflict among the lower courts on this important and recurring issue and the need for uniform enforcement of federal antitrust laws, I think it fair to say that there is a reasonable probability that the petition for a writ of certiorari will be granted in this case.

Indeed, the weight of academic commentary favors a reading of § 16 that would permit divestiture as a remedy in private actions. See, e. g., 2 P. Areeda & D. Turner, Antitrust Law § 328b, p. 137 (1978) (“[Divestiture is available in a private suit challenging unlawful mergers”); P. Areeda & H. Hovenkamp, Antitrust Law § 328b, pp. 290-291 (Supp. 1988) (approving Petrolera, supra)] E. Kintner, Primer on the Law of Mergers 361-364 (1973) (divestiture is available in private actions under §16); L. Sullivan, Law of Antitrust §216, p. 672, n. 3 (1977) (same); Kintner & Wilberding, Enforcement of the Merger Laws by Private Party Litigation, 47 lnd. L. J. 293 (1972); Peacock, Private Divestiture Suits Under Section 16 of the Clayton Act, 48 Texas L. Rev. 54 (1969); Comment, Private Divestiture: Antitrust’s Latest Problem Child, 41 Ford. L. Rev. 569 (1973); Note, The Use of Divestiture in Private Antitrust Suits, 43 Geo. Wash. L. Rev. 261 (1974); Note, Availability of Divestiture in Private Litigation as a Remedy for Violation of Section 7 of the Clayton Act, 49 Minn. L. Rev. 267 (1965); Comment, Section 16 of the Clayton Act: Divestiture an Intended Type of Injunctive Relief, 19 Pac. L. J. 143 (1987). Although I cannot, of course, predict with mathematical certainty my colleagues’ views on the subject, see New Motor Vehicle Board v. Orrin W. Fox Co., 434 U. S. 1345, 1347 (1977) (Rehnquist, J., in chambers), this commentary suggests to me that plausible arguments exist for reversing the decision below and that there is at least a fair prospect that a majority of the Court may vote to do so. Cf. Zenith Radio Corp. v. Hazeltine Re search, Inc., 395 U. S. 100, 130-131 (1969) (“Section 16 should be construed and applied . . . with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice ‘adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’ ... Its availability should be ‘conditioned by the necessities of the public interest which Congress has sought to protect’”) (citation omitted).

Finally, balancing the stay equities persuades me that the harm to applicant if the stay is denied, in the form of a substantial lessening of competition in the relevant market, outweighs the harm respondents may suffer as a result of a stay of the mandate. Applicant alleges, for example, that permitting the merger would cost the State’s consumers $400 million a year in higher prices. Respondents contend that they are incurring costs of over $1 million a week by reason of the District Court’s injunction and applicant’s decision to file suit after the merger had been consummated. To be sure, the cost of enjoining a merger before consummation is staggering, see Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1309 (1987) (O’Connor, J., in chambers), and the cost of enjoining an already completed transaction even greater. But, as the District Court found, “the State conducted [its] investigation as swiftly as was responsibly possible.” 697 F. Supp., at 1135. Under the circumstances, and in light of the public interests involved, it appears that the equities favor applicant.

Because the citizens of California will likely suffer irreparable harm if integration of respondents’ companies is not enjoined, and because there is both a reasonable probability that at least four Justices will vote to grant the petition for a writ of certiorari and a fair prospect that applicant may prevail on the merits, I grant the requested stay of the mandate of the United States Court of Appeals for the Ninth Circuit in this case, pending the disposition by this Court of the petition for a writ of certiorari or further order of this Court.

This order is conditioned upon the posting of a good and sufficient bond with the Clerk of the United States District Court for the Central District of California, the adequacy of such bond to be determined by that court.

       American Stores initiated a hostile takeover bid for the Lucky chain on March 21, 1988. Pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1390, 15 U. S. C. § 18a, American Stores notified the Federal Trade Commission (FTC) of its intentions. On May 23, American Stores increased its tender offer, and Lucky’s board of directors approved the merger. On May 31, the FTC filed an administrative complaint alleging violations of §7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18, and § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45. The FTC simultaneously proposed a consent order under which it would settle its antitrust complaint in exchange for American Stores’ compliance with certain demands, including divestiture of certain supermarkets in northern California and an agreement to “hold separate” the two firms until American Stores satisfied all of the consent order’s conditions. American Stores agreed to the consent order, and by June 9 completed its $2.5 billion acquisition of the outstanding Lucky stock. On August 31, the FTC gave final approval to the proposed consent order without modification. On September 1, applicant initiated the underlying action.


source: Caselaw Access Project

author: Per Curiam. Chief Justice Rehnquist,

license: Public Domain

text:
    TERRELL v. MORRIS, SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY
    No. 88-7535.
    Decided October 10, 1989
   Per Curiam.

Petitioner Terrell is incarcerated in a state prison in Ohio. After applying for state-law postconviction relief, he petitioned for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254 (1982 ed.).

Terrell’s habeas petition includes an ineffective-assistance-of-counsel claim. The Ohio courts held in postconviction proceedings that Terrell had defaulted this claim by failing to raise it when represented by new counsel on direct appeal. In so doing, the Ohio courts relied upon State v. Cole, 2 Ohio St. 3d 112, 113-114, 443 N. E. 2d 169, 171 (1982). The Cole rule postdated Terrell’s appeal, which was decided on December 30, 1981. Before Cole, Ohio had permitted ineffective-assistance claims in collateral challenges even if a petitioner had not raised those claims when represented by new counsel on direct appeal. See State v. Hester, 45 Ohio St. 2d 71, 71-72, 74-75, 341 N. E. 2d 304, 305, 307 (1976) (permitting a postconviction ineffective assistance claim to go forward despite a failure to raise the issue on direct appeal); see also Cole, supra, at 113-114, 443 N. E. 2d, at 171 (expressly modifying Hester).

Terrell thus could not have known that he would default his ineffective-assistance claim by his new counsel’s failure to raise it on direct appeal. Terrell argued to the Federal District Court that the State could not invoke its procedural default rule retroactively. The District Judge agreed and proceeded to the merits of Terrell’s ineffective-assistance claim.

The Sixth Circuit disposed of Terrell’s pro se appeal in a per curiam, unpublished opinion. Terrell v. Marshall, 872 F. 2d 1029 (1989) (judgment order). The Court of Appeals held that “the District Court properly determined that Terrell’s” ineffective-assistance claim, as well as several other claims, “were not re viewable” because of Terrell’s “failure to raise these claims in state court proceedings.” App. to Pet. for Cert. A-2. The District Court had, however, made no such determination: the District Court reached the merits of the ineffective-assistance claim because the only applicable procedural default rule postdated Terrell’s conviction. The Court of Appeals neither noted nor addressed the retroactivity issue.

The Sixth Circuit, by its unpublished opinion, affirmed a decision that the District Court never made, and so never reviewed that court’s actual decision. Review of the procedural bar and retroactivity issues should be undertaken based on a correct formulation of the ruling in the District Court. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice White, Justice O’Connor, and Justice Scalia join,

dissenting.

The Court summarily vacates an unpublished per curiam opinion of the Court of Appeals for the Sixth Circuit without indicating that the Sixth Circuit committed legal error or that intervening circumstances require reconsideration of its decision. Because I view this action as an unwarranted use of the Court’s resources and an unjustified imposition on the Court of Appeals, I dissent.

As the Court explains, the Sixth Circuit concluded that “‘the District Court properly determined’” that Terrell’s ineffective-assistance claim was procedurally barred. The Court’s sole stated reason for vacating that decision is that the Court of Appeals erroneously attributed to the District Court a conclusion it never made. Although the Court of Appeals appears to have been wrong as to the basis of the District Court’s ruling, the appellate court’s statement unequivocally expresses agreement with the view that the claim was procedurally barred. This, then, is simply a case of an appellate court affirming a district court’s dismissal on a legal basis different from that adopted by the district court — a not uncommon practice.

Underlying the Court’s summary disposition of this case appears to be an assumption that the Sixth Circuit did not consider the adequacy of the Ohio courts’ procedural bar holding. The Court of Appeals, however, had before it and made reference to the Magistrate’s report and the District Court’s decision, both of which discussed the issue. It is not our place to vacate a Court of Appeals’ opinion on the supposition that the.court failed to give sufficient thought to its own holding, merely because we would prefer a more extended discussion. Unless the Court is prepared to reverse the Court of Appeals’ reliance on procedural bar, there is no basis for setting aside the decision below. This Court has debated the appropriateness of performing an “error-correcting function,” see, e. g., Pennsylvania v. Bruder, 488 U. S. 9, 12-13 (1988) (Stevens, J., dissenting). But I have no doubt that vacation of unpublished lower court opinions without any suggestion of error or intervening change in the law is an unwise use both of our resources and of those of the Court of Appeals.

      The author of the Court of Appeals’ unpublished opinion may have relied on the Magistrate’s conclusion that petitioner’s ineffective-assistanee-of-counsel claim was barred by procedural default. See App. to Pet. for Cert. C-4. The Magistrate, however, had. neither noted nor addressed the retroactivity issue that the District Court resolved in petitioner’s favor. Because the question whether the Ohio Supreme Court’s decision in State v. Cole, 2 Ohio St. 3d 112, 443 N. E. 2d 169 (1982), should be given retroactive effect may govern the disposition of a significant number of ineffective-assistance-of-counsel claims, the question clearly merits the attention of the Court of Appeals. Moreover, since the answer to the question requires a familiarity with Ohio law, it should not be addressed in this Court before we have the benefit of the Court of Appeals’ views.


author: Per Curiam.

text:
    WHITE, EXECUTOR OF THE ESTATE OF SMITH v. UNITED STATES et al.
    No. 88-928.
    Argued October 3, 1989
    Decided October 16, 1989

      Kenneth A. Payment argued the cause for petitioner. With him on the briefs was James M. White, pro se.

      Alan I. Horowitz argued the cause for respondents. With him on the brief were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Charles E. Brookhart, and Joan I. Oppenheimer.

        Waller H. Horsley, Louis A. Craco, Charles E. Heming, Jonathan G. Blattmachr, Arthur M. Sherwood, Alexander C. Cordes, Sanford J. Schlesinger, Jules J. Haskel, Albert Kalter, Thomas P. Sweeney, and Geraldine S. Hemmerling filed a brief for the New York State Bar Association et al. as amici curiae urging reversal.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Justice White dissents.


author: Justice Marshall Justice Stevens,

text:
    NORTHBROOK NATIONAL INSURANCE CO. v. BREWER
    No. 88-995.
    Argued October 4, 1989
    Decided November 7, 1989

      MARSHALL, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 13.

      P. Michael Jung argued the cause for petitioner. With him on the briefs was E. Thomas Bishop.

      Timothy M. Fults argued the cause and filed a brief for respondent.

        Michael A. Carvin and Craig Berrington filed a brief for the American Insurance Association as amicus curiae, urging reversal.

   Justice Marshall

delivered the opinion of the Court.

This case presents the question whether the “direct action” proviso of 28 U. S. C. § 1332(c) (1982 ed.) — which provides that in a direct action against a liability insurer, the insurer shall be deemed a citizen of the same State as the insured for purposes of diversity jurisdiction — applies to a workers’ compensation action brought in federal court by an insurer. The Fifth Circuit held that the proviso applied so as to bar a diversity action brought by an Illinois insurer of a Texas corporation against a Texas employee. 854 F. 2d 742 (1988). Accordingly, it affirmed the District Court’s dismissal for lack of subject-matter jurisdiction. Because the language of the proviso is unambiguously limited to actions brought against insurers, we reverse.

h-H

Respondent Larry Brewer is a Texas citizen and an employee of Whitmire Line Clearance, Inc., a Texas corporation. Petitioner Northbrook National Insurance Company, an Illinois corporation with its principal place of business in that State, was Whitmire’s workers’ compensation insurer. Under the Texas Workers’ Compensation Act, an employee who suffers an injury in the course of employment “shall have no right of action against [the] employer . . . but . . . shall look for compensation solely to the [employer’s insurer].” Tex. Rev. Civ. Stat. Ann., Art. 8306, §3(a) (Vernon Supp. 1989). An employee must file his claim for compensation with the Texas Industrial Accident Board. Art. 8307, § 4a. Brewer filed a workers’ compensation claim against North-brook after he allegedly suffered an injury during the course of his employment. The board processed his claim and awarded him compensation.

Texas’ workers’ compensation law permits any party dissatisfied with a board ruling to bring a civil suit to set the decision aside. Art. 8307, § 5. The court determines the issues de novo, and the party seeking compensation bears the burden of proof, regardless of which party prevailed before the board. Ibid.

Northbrook filed suit against Brewer in Federal District Court, invoking the court’s diversity jurisdiction under 28 U. S. C. § 1332 (1982 ed.). The District Court dismissed for lack of subject-matter jurisdiction, holding that Fifth Circuit precedent, Campbell v. Insurance Co. of North America, 552 F. 2d 604 (1977) (per curiam), required it to apply the direct action proviso of the diversity statute. App. to Pet. for Cert. A-ll. That proviso states:

“[I]n any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. § 1332(c) (1982 ed.) (emphasis added).

The District Court therefore attributed Whitmire’s Texas citizenship to Northbrook, eliminating diversity between Northbrook and Brewer. The Court of Appeals affirmed on the basis of Campbell. It noted, however, that Campbell stood on “weak jurisprudential legs.” 854 F. 2d, at 745.

HH

We hold that the direct action proviso is not applicable m this case because Northbrook’s suit was an action by, not against, an insurer. “[W]e must take the intent of Congress with regard to the filing of diversity cases in Federal District Courts to be that which its language clearly sets forth.” Horton v. Liberty Mutual Ins. Co., 367 U. S. 348, 352 (1961) (holding that Congress’ elimination of removal jurisdiction over workers’ compensation suits did not withdraw original diversity jurisdiction over such suits). The language of the proviso could not be more clear. It applies only to actions against insurers; it does not mention actions by insurers.

The proviso’s legislative history reinforces our reading of Congress’ pellucid language. Congress added the proviso to § 1332(c) in 1964 in response to a sharp increase in the caseload of Federal District Courts in Louisiana resulting largely from that State’s adoption of a direct action statute, La. Rev. Stat. Ann. §22.655 (West 1959). See S. Rep. No. 1308, 88th Cong., 2d Sess., 4 (1964); H. R. Rep. No. 1229, 88th Cong., 2d Sess., 4 (1964). The Louisiana statute permitted an injured party to sue the tortfeasor’s insurer directly without joining the tortfeasor as a defendant. Its effect was to create diversity jurisdiction in cases in which both the tortfeasor and the injured party were residents of Louisiana, but the tortfeasor’s insurer was considered a resident of another State. Believing that such suits did “not come within the spirit or the intent of the basic purpose of the diversity jurisdiction of the Federal judicial system,” S. Rep. No. 1308, supra, at 7, Congress enacted the proviso “to eliminate under the diversity jurisdiction of the U. S. district courts, suits on certain tort claims in which both parties are local residents, but which, under a State ‘direct action’ statute, may be brought directly against a foreign insurance carrier without joining the local tort-feasor as a defendant,” id., at 1 (emphasis added). See also H. R. Rep. No. 1229, supra, at 1. Nowhere in the legislative history did Congress express any concern about diversity actions filed by insurance carriers.

The Fifth Circuit in Campbell reasoned that a suit such as Northbrook’s is, in context, actually an action against the insurer. The court noted that the entire process is initiated by the employee’s filing a claim with the board, and that the employee retains the burden of proof at trial. It also considered the insurer’s action in court merely an “appeal” of the board award. 552 F. 2d, at 605.

We reject this analysis. Although the employee in an action brought by the insurer retains some characteristics of a plaintiff at trial, such an action is still inescapably one by, not against, the insurer. The action is commenced when the insurer files a complaint in federal court, not when the employee files his claim before the board. See Fed. Rule Civ. Proc. 3 (“A civil action is commenced by filing a complaint with the court”). Moreover, once the court acquires jurisdiction over the suit, the board’s award is vacated and no longer has any force or significance. Latham v. Security Ins. Co. of Hartford, 491 S. W. 2d 100, 104 (Tex.1972). See also Horton, supra, at 355, n. 15 (“This makes it all the more clear that the matter in controversy between the parties to the suit is not merely whether the award will be set aside since the suit automatically sets it aside for determination of liability de novo”). Thus, this Court concluded in Horton that such actions are not considered appeals under Texas law. 367 U. S., at 354 (citing Booth v. Texas Employers’ Ins. Assn., 132 Tex. 237, 246, 123 S. W. 2d 322, 328 (1938)).

The Campbell court also reasoned that the same policy considerations that apply to actions brought by resident employees apply to actions brought by out-of-state insurers; thus, the court stated that it would be unfair to provide those insurers access to federal courts while denying such access to employees. 552 F. 2d, at 605. Petitioner argues, however, that Campbell ignored a crucial difference between the two situations that justifies different treatment. Absent federal jurisdiction, a workers’ compensation action would be brought in a Texas state court, regardless of which party initiated it. Tex. Rev. Civ. Stat. Ann., Art. 8307a (Vernon Supp. 1989) (suit must be brought in county in which injury occurred or in which employee resided at the time of injury). Thus, the out-of-state insurer, unlike the resident employee, would, “at least in theory, be subject to a local prejudice in favor of the injured resident.” Aetna Casualty & Surety Ins. Co. v. Greene, 606 F. 2d 123, 127 (CA6 1979) (rejecting Campbell’s approach).

Petitioner’s position is not wholly convincing. Although it may explain why Congress would permit out-of-state insurers, but not injured state residents, to sue in federal court, it does not explain why Congress would deny those insurers access to a federal forum when injured residents initiate suit in state court. By eliminating diversity jurisdiction over direct actions against out-of-state insurers, Congress also prevented those insurers from removing such actions to federal courts, because federal removal jurisdiction is limited to actions which could have been brought originally in federal courts. See 28 U. S. C. § 1441(a) (1982 ed.). Yet it is difficult to see how the nonresident insurer’s interest in a federal forum is any greater when it brings the action than when an injured resident does. It therefore seems somewhat anomalous for Congress to retain original diversity jurisdiction over actions by out-of-state insurers while withdrawing removal jurisdiction.

This seeming incongruity, however, is insufficient to persuade us to extend the scope of Congress’ precise wording in § 1332(c). In Horton, this Court confronted a similar question: whether Congress’ explicit withdrawal of removal jurisdiction over workers’ compensation cases, see n. 2, supra, precluded a diversity action brought in the first instance by an out-of-state insurer under the Texas workers’ compensation statute. The District Court had answered that question in the affirmative, reasoning that the concerns that persuaded Congress to eliminate removal jurisdiction — reducing congestion in federal courts and relieving injured employees of the burden of having to litigate in more distant federal courts — were also applicable when nonresident insurers initiated the actions. 367 U. S., at 351-352. Although this Court noted that these considerations were “appealing,” id., at 352, it refused to assume that Congress intended anything more than it had stated in unambiguous terms. Ibid. Similarly, we refuse to attribute to Congress an intent broader than that specifically expressed in the direct action proviso. Congress could easily have used language to bar suits by insurers as well as those against insurers, and it can easily do so still. See ibid.

In sum, the direct action proviso is limited by its terms to actions against insurers. We cannot doubt that Congress meant what it said. We therefore reverse the decision of the Court of Appeals and remand for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

dissenting.

Workers’ compensation is generally a subject of local interest and control with which federal courts have only minimal contact. The Texas Workers’ Compensation Act is unusual because employers who carry workers’ compensation insurance normally are not parties to the processing of claims that are made against their insurers. Moreover, when an award is made, either the employee or the insurance company may obtain de novo review in a judicial proceeding in which the employee bears the burden of proof regardless of which party requested review. In other words, in both the administrative proceeding and the judicial proceeding, the employee is the party who must assert and prove that his claim against a carrier is meritorious.

One of the consequences of the unique Texas program was the generation of an unusually large volume of federal litigation between Texas employees and out-of-state insurance companies. In 1957 the dockets of the United States District Courts in Texas were burdened with 2,147 Texas workers’ compensation cases. Over half of them (1,148) were cases that had been originally filed in a Texas court and removed to a federal court. Of the remainder, 957 were original actions filed by employees and 25 were original actions filed by insurance carriers. The statute enacted by Congress in 1958, which prevents the removal of workers’ compensation cases, eliminated a little over half of that burden but did not affect the actions originally filed in the federal district court by either employees or insurance carriers. See Horton v. Liberty Mutual Ins. Co., 367 U. S. 348, 352 (1961); see also ante, at 9.

In 1964, Congress passed another statute further curtailing federal diversity jurisdiction over claims against insurance carriers. As the Court correctly notes, ante, at 9-10, that statute was a response to the dramatic increase in the workload of the Federal District Courts in Louisiana resulting from the enactment of the Louisiana statute authorizing injured parties to bring direct actions against insurance companies without joining the alleged tortfeasors as parties. The legislative history of that statute does not mention workers’ compensation cases. The question whether the 1964 statute ousted the federal courts in Texas of jurisdiction over the remaining half of their workers’ compensation docket was, therefore, not answered by legislative history.

The United States Court of Appeals for the Fifth Circuit has, however, answered that question in two steps. In 1974, in Hernandez v. Travelers Ins. Co., 489 F. 2d 721, cert. denied, 419 U. S. 844 (1974), the Court of Appeals held that a workers’ compensation policy is a “policy or contract of liability insurance” and that an action against an insurer on such a policy is a “direct action” within the meaning of 28 U. S. C. § 1332(c) (1982 ed.). That holding took care of over 95 percent of the post-1958 residue of Texas workers’ compensation cases. In 1977, the Fifth Circuit took the second step to dispose of the remaining handful of cases — those originally filed in federal court by insurance companies. In Campbell v. Insurance Co. of North America, 552 F. 2d 604 (1977), the court held that the specific characteristics of the Texas workers’ compensation statute made it appropriate to treat a federal action that had been filed by the insurance carrier as an action “against the insurer” within the meaning of the proviso to § 1332(c).

Today the Court rejects the second, relatively unimportant, holding in Campbell, and leaves standing the decision in Hernandez. The net result of this case, then, is to preserve federal jurisdiction over the tiny fraction of Texas workers’ compensation cases that are brought by insurance carriers and to leave untouched the interpretation of the statute governing the other 9714 percent. Since the Hernandez decision is consistent with the interpretation of the proviso to § 1332(c) that has been adopted in other Circuits, see Aetna Casualty & Surety Ins. Co. v. Greene, 606 F. 2d 123, 126 (CA6 1979), and since the question whether the case involves a “direct action” and a “policy of liability insurance” turns in large part on an understanding of specific features of the Texas statute, I agree with the Court’s decision to leave that holding untouched. I disagree, however, with its disposition of the issue it does decide.

On the merits, three characteristics of the Texas scheme make it appropriate to characterize the judicial review of a compensation award as an action “against” the insurance carrier regardless of which party initiated the review proceeding. First, the underlying claim for compensation that is at issue from beginning to end is unquestionably a claim against the insurance company. Second, the fact that as a matter of state law the burden of proof remains on the employee is of more importance in determining the true character of the judicial proceeding than the identity of the party who filed the initial pleading. Third, and perhaps of greatest importance, the question whether the matter in controversy is sufficient to sustain federal jurisdiction is determined by the magnitude of the employee’s claim, rather than by the amount of the award that the insurance company challenges. Horton v. Liberty Mutual Ins. Co., 367 U. S. 348 (1961). Arguably, these three features of the Texas scheme are not sufficient to overcome the Court’s literal approach to the art of statutory interpretation. They are, however, buttressed by three additional considerations that are persuasive to me. First, since the resolution of the issue depends largely on a correct understanding of a state statute, I believe we should give deference to the Court of Appeals’ evaluation of the characteristics of the Texas procedures. Cf. Bishop v. Wood, 426 U. S. 341, 346 (1976). Second, that court’s interpretation of the law provides evenhanded treatment to both parties, whereas the opinion this Court expresses today gives favored treatment to the insurance carriers; it seems unlikely that Congress intended the 1964 statute to have that kind of discriminatory impact. Third, the Court’s construction of the provision ignores the dominant policy that should be heeded whenever we construe statutes governing federal diversity jurisdiction.

“These requirements, however technical seeming, must be viewed in the perspective of the constitutional limitations upon the judicial power of the federal courts, and of the Judiciary Acts in defining the authority of the federal courts when they sit, in effect, as state courts. See Madisonville Traction Co. v. Mining Co., 196 U. S. 239, 255, and Ex parte Schollenberger, 96 U. S. 369, 377. The dominant note in the successive enactments of Congress relating to diversity jurisdiction, is one of jealous restriction, of avoiding offense to state sensitiveness, and of relieving the federal courts of the overwhelming burden of ‘business that intrinsically belongs to the state courts,’ in order to keep them free for their distinctive federal business. See Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483, 510; Shamrock Oil Corp. v. Sheets, 313 U. S. 100, 108-09; Healy v. Ratta, 292 U. S. 263, 270.” Indianapolis v. Chase National Bank, 314 U. S. 63, 76 (1941).

Finally, I must add a word about the unwisdom in granting certiorari to decide the merits of this case. The law had been settled in the Fifth Circuit in a perfectly sound and sensible way for over a decade when at least four Members of this Court voted to hear this case. Measured by 1957 standards, the question we decide today affects only 25 cases out of a total that then amounted to 2,147. Since the jurisdictional amount has since been increased from $3,000 to $50,000, the number of cases actually affected by today’s decision may be even smaller. Thus, although it is true as the Court observes that Congress has the power to amend the statute to eliminate its disparate consequences, ante, at 12-13, it is hardly likely to consider such action worth the effort. The most significant aspect of today’s decision is the revelatory light it sheds on the way we manage our scarce resources.

I respectfully dissent.

       Petitioner also argues that the proviso is inapplicable because this ease does not involve a “direct action” within the meaning of § 1332(c). A direct action, according to petitioner, is a suit in which a party claiming injury seeks relief from the liability insurer of the party legally responsible for the injury; in such an action, the injured party neither joins nor first obtains a judgment against the legally responsible party. Petitioner contends that a workers’ compensation suit against an employer’s insurer is not a direct action in Texas because employers are not legally responsible for workers’ compensation benefits under Texas law. Tex. Rev. Civ. Stat. Ann., Art. 8306, § 3(a) (Vernon Supp. 1989). Instead, the injured party must “look for compensation solely to the [insurer].” Ibid. Similarly, because Texas employers are not liable for workers’ compensation benefits, petitioner asserts, Whitmire’s policy with Northbrook did not provide “liability insurance” within the meaning of the proviso. We need not reach these arguments because we hold that the suit at issue here was not an action “against” an insurer.

       In this ease, removal would also be precluded by 28 U. S. C. § 1445(c) (1982 ed.) which states: “A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.”

       There were also 17 cases transferred from other jurisdictions. See S. Rep. No. 1830, 85th Cong., 2d Sess., 8 (1958).

       “Sec. 5. (a) Section 1445 of title 28 of the United States Code is amended by adding at the end thereof a new paragraph as follows:
      “ ‘(c) A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.’” 72 Stat. 415.

       See H. R. Rep. No. 1229, 88th Cong., 2d Sess., 4-5 (1964).

       That section provides:
      “(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.”

       “The specific question is this: Does an alignment of the parties in relation to their real interests in the ‘matter in controversy’ satisfy the settled requirements of diversity jurisdiction?
      “As is true of many problems in the law, the answer is to be found not in legal learning but in the realities of the record. Though variously expressed in the decisions, the governing principles are clear. To sustain diversity jurisdiction there must exist an ‘actual,’ Helm v. Zarecor, 222 U. S. 32, 36, ‘substantial,’ Niles-Bement-Pond Co. v. Iron Moulders Union, 254 U. S. 77, 81, controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. Strawbridge v. Curtiss, 3 Cranch 267. Diversity jurisdiction cannot be conferred upon the federal courts by the parties’ own determination of who are plaintiffs and who defendants. It is our duty, as it is that of the lower federal courts, to ‘look beyond the pleadings and arrange the parties according to their sides in the dispute.’ Dawson v. Columbia Trust Co., 197 U. S. 178, 180.” Indianapolis v. Chase National Bank, 314 U. S. 63, 69 (1941).

       As Judge Tuttle has explained:
      “The Texas Compensation Law permits any interested party, including, of course, the insurer, to bring suit to ‘set aside’ the award of the Industrial Accident Board. As noted previously, however, once such an action is commenced, the award becomes an absolute nullity under the Texas statute. The filing of the suit, in and of itself, abrogates the award, and this is so even if a voluntary nonsuit is taken and the case dismissed without judgment on the merits. The insurer is under no obligation to prove that the award was erroneous, even though the insurer’s action is designated as an action to ‘set aside’ the award. To the contrary, once an action such as this is filed, a trial de novo is conducted, and the burden is on the insured (here, the defendant) to plead and prove whether and to what extent he is entitled to compensation. Thus, when the insurer institutes such an action, it is a ‘plaintiff’ in name only. The filing of suit by the insurer is nothing more than a notice to the insured to come into court and prove his claim.
      “Thus it is that the amount actually in controversy in the action cannot be determined until the insured responds to this notice by filing a claim for compensation against the insurer. The insured’s ‘counterclaim’ is, for all intents and purposes, the only claim involved in the action.” Hardware Mutual Casualty Co. v. McIntyre, 304 F. 2d 566, 570 (CA5) (citations omitted), cert. denied, 371 U. S. 878 (1962).

       In his dissenting opinion in Horton v. Liberty Mutual Ins. Co., 367 U. S. 348, 362-363 (1961), Justice Clark, who was also familiar with Texas procedures, observed:
      “Moreover, the Senate Report expressed concern for the problems of the injured employee in federal court,
      “ ‘[S]ome of these State [workmen’s compensation] statutes limit the venue to the place where the accident occurred or to the district of the workman’s residence. When removed to the Federal court the venue provisions of the State statute cannot be applied. Very often cases removed to the Federal courts require the workman to travel long distances and to bring his witnesses at great expense. This places an undue burden upon the workman and very often the workman settles his claim because he cannot afford the luxury of a trial in Federal court.’ S. Rep. No. 1830, 85th Cong., 2d Sess. 9.
      “While 28 U. S. C. § 1332 does not specifically prohibit the filing of original workmen’s compensation cases, a clearer expression of congressional dislike for saddling federal courts with such cases could hardly be imagined. We should, therefore, give effect to this policy wherever possible. Not only does the decision today fail to do this, but the Court goes out of its way to defeat the congressional intent. The statement that ‘the workman has the option to file his case in either the Federal or the State court,’ S. Rep. No. 1830, 85th Cong., 2d Sess. 9, is no longer correct. It is now an unequal race to the courthouse door — a race which the insurers will invariably win, since they have resident counsel in Austin (the location of the Texas Industrial Accident Board) who quickly secure news of Board awards and are thus enabled to ‘beat’ the workman in the choice of forums. Thus, the Court — contrary to the specifically expressed intention of the Congress — grants the insurance companies the option of going into federal court, with all its attendant difficulties to the already overburdened federal judiciary and the impecunious workman.” -

       It is true that the Court of Appeals for the Sixth Circuit had held that a declaratory judgment action brought by an insurance company to construe a workers’ compensation policy is not an action “against” the company within the meaning of the proviso, Aetna Casualty & Surety Ins. Co. v. Greene, 606 F. 2d 123 (1979), and that case might at first blush have been thought to create a conflict with the Fifth Circuit’s decision in Campbell v. Insurance Co. of North America, 552 F. 2d 604 (1977). That apparent conflict, however, was wholly illusory because the special characteristics of the Texas workers’ compensation statute were not replicated in Tennessee. Indeed, in later cases the Fifth Circuit has itself recognized that the holding in Campbell is not applicable to actions filed by insurance companies seeking constructions of policies covering liability for personal injury. See Evanston Ins. Co. v. Jimco, Inc., 844 F. 2d 1185, 1189 (1988); Dairyland Ins. Co. v. Makover, 654 F. 2d 1120, 1124-1125 (1981).


author: Justice O’Connor Justice Marshall,

text:
    HALLSTROM et ux. v. TILLAMOOK COUNTY
    No. 88-42.
    Argued October 4, 1989
    Decided November 7, 1989

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

      Kim Buckley argued the cause for petitioners. With him on the briefs was Michael J. Esler.

      I. Franklin Hunsaker argued the cause for respondent. With him on the brief was James G. Driscoll.

      Brian J. Martin argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Carr, Deputy Solicitor General Wallace, Anne S. Almy, and John T. Stahr.

        Michael Traynor filed a brief for the Sierra Club et al. as amici curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

The citizen suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2825, as amended, 42 U. S. C. § 6972 (1982 ed. and Supp. V), permits individuals to commence an action in district court to enforce waste disposal regulations promulgated under the Act. At least 60 days before commencing suit, plaintiffs must notify the alleged violator, the State, and the Environmental Protection Agency (EPA) of their intent to sue. 42 U. S. C. § 6972(b)(1). This 60-day notice provision was modeled upon § 304 of the Clean Air Amendments of 1970, 84 Stat. 1706, as amended, 42 U. S. C. § 7604 (1982 ed.). Since 1970, a number of other federal statutes have incorporated notice provisions patterned after §304. In this case, we must decide whether compliance with the 60-day notice provision is a mandatory precondition to suit or can be disregarded by the district court at its discretion.

I

Petitioners own a commercial dairy farm located next to respondent’s sanitary landfill. In April 1981, believing that the landfill operation violated standards established under RCRA, petitioners sent respondent written notice of their intention to file suit. A year later, petitioners commenced this action. On March 1, 1983, respondent moved for summary judgment on the ground that petitioners had failed to notify Oregon’s Department of Environmental Quality (DEQ) and the EPA of their intent to sue, as required by § 6972(b)(1). Respondent claimed that this failure to comply with the notice requirement deprived the District Court of jurisdiction. On March 2, 1983, petitioners notified the agencies of the suit.

The District Court denied respondent’s motion. It reasoned that petitioners had cured any defect in notice by formally notifying the state and federal agencies on March 2, 1983. The agencies would then have 60 days to take appropriate steps to cure any violation at respondent’s landfill. The court noted that the purpose of the notice requirement was to give administrative agencies an opportunity to enforce environmental regulations. In this case, neither the state nor the federal agency expressed any interest in taking action against respondent. Therefore, the court concluded that dismissing the action at this stage would waste judicial resources. Civ. No. 82-481 (Ore., Apr. 22, 1983).

After the action proceeded to trial, the District Court held that respondent had violated RCRA. The court ordered respondent to remedy the violation but refused to grant petitioners’ motion for injunctive relief. Civ. No. 82-481JU (Sept. 30, 1986). In a later order, the District Court denied petitioners’ request for attorney’s fees. Petitioners appealed both rulings; respondent cross-appealed from the denial of its summary judgment motion.

The Court of Appeals for the Ninth Circuit concluded that petitioners’ failure to comply with the 60-day notice requirement deprived the District Court of subject matter jurisdiction. Relying on the plain language of § 6972(b)(1), the Court of Appeals determined that permitting the plaintiff to proceed without giving notice would constitute “‘judicial amendment’ ” of a clear statutory command. 844 F. 2d 598, 600 (1987), quoting Garcia v. Cecos Int'l, Inc., 761 F. 2d 76, 78 (CA1 1986) (citation omitted). The Court of Appeals also determined that strict construction of the notice requirement would best further the goal of giving environmental agencies, rather than courts, the primary responsibility for enforcing RCRA. 844 F. 2d, at 601. Therefore, the Court of Appeals remanded the action to the District Court with instructions to dismiss. We granted certiorari to resolve the conflict among the Courts of Appeals regarding the correct interpretation of the notice provision. 489 U. S. 1077 (1989).

II

As we have repeatedly noted, “the starting point for interpreting a statute is the language of the statute itself.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). Section 6972(a)(1) permits any person to commence a civil action against an alleged violator of regulations established under RCRA “[except] as provided in subsection (b).” Subsection (b)(1) states:

“(b) Actions prohibited.
“No action may be commenced under paragraph (a)(1) of this section—
“(1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator [of the EPA]; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of such permit, standard, regulation, condition, requirement, or order . . . 42 U. S. C. § 6972(b)(1) (1982 ed.).

The language of this provision could not be clearer. A citizen may not commence an action under RCRA until 60 days after the citizen has notified the EPA, the State in which the alleged violation occurred, and the alleged violator. Actions commenced prior to 60 days after notice are “prohibited.” Because this language is expressly incorporated by reference into § 6972(a), it acts as a specific limitation on a citizen’s right to bring suit. Under a literal reading of the statute, compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit.

Petitioners do not contend that the language of this provision is ambiguous; rather, they assert that it should be given a flexible or pragmatic construction. Thus, petitioners argue that if a suit commenced without proper notice is stayed until 60 days after notice had been given, the District Court should deem the notice requirement to be satisfied. See Pymatuning Water Shed Citizens for Hygienic Environment v. Eaton, 644 P. 2d 995, 996-997 (CA3 1981). According to petitioners, a 60-day stay would serve the same function as delaying commencement of the suit: it would give the Government an opportunity to take action against the alleged violator and it would give the violator the opportunity to bring itself into compliance.

Whether or not a stay is in fact the functional equivalent of a precommencement delay, such an interpretation of §6972(b) flatly contradicts the language of the statute. Under Rule 3 of the Federal Rules of Civil Procedure, “[a] civil action is commenced by filing a complaint with the court.” Reading § 6972(b)(1) in light of this Rule, a plaintiff may not file suit before fulfilling the 60-day notice requirement. Staying judicial action once' the suit has been filed does not honor this prohibition. Congress could have excepted parties from complying with the notice or delay requirement; indeed, it carved out such an exception in its 1984 amendments to RCRA. See, e. g., 42 U. S. C. §6972(b)(1)(A) (1982 ed., Supp. V) (abrogating the 60-day delay requirement when there is a danger that hazardous waste will be discharged). RCRA, however, contains no exception applicable to petitioners’ situation; we are not at liberty to create an exception where Congress has declined to do so.

Petitioners further argue that under our decision in Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982), RCRA’s 60-day notice provision should be subject to equitable modification and cure. In Zipes, we held that the timely filing of a charge of discrimination with the Equal Employment Opportunity Commission, as required under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e-5(e) (1982 ed.) (“[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . ”), was not a jurisdictional prerequisite to suit but was subject to waiver, estoppel, and equitable tolling. 455 U. S., at 393. This decision does not help petitioners. First, as we noted in Zipes, both the language and legislative history of §2000e-5(e) indicate that the filing period operated as a statute of limitations. 455 U. S., at 393-394. The running of such statutes is traditionally subject to equitable tolling. See, e. g., Honda v. Clark, 386 U. S. 484, 501 (1967) (holding that where consistent with the overall congressional purpose, a “traditional equitable tolling principle” should be applied to a statutory limitations period). Unlike a statute of limitations, RCRA’s 60-day notice provision is not triggered by the violation giving rise to the action. Rather, petitioners have full control over the timing of their suit: they need only give notice to the appropriate parties and refrain from commencing their action for at least 60 days. The equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners’ “failure to take the minimal steps necessary” to preserve their claims. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 466 (1975).

Nor can we excuse petitioners’ failure on the ground that “a technical reading [of §6972] would be ‘particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.’” Zipes v. TransWorld Airlines, Inc., supra, at 397, quoting Love v. Pullman Co., 404 U. S. 522, 527 (1972). While the initial charge in a Title VII proceeding is normally filed by an aggrieved individual, see §2000e-5(b), citizen suits under RCRA are like any other lawsuit, generally filed by trained lawyers who are presumed to be aware of statutory requirements. (Indeed, counsel for petitioners in this case admitted at oral argument that he knew of the notice provisions but inadvertently neglected to notify the state and federal agencies. Tr. of Oral Arg. 3-4.) Under these circumstances, it is not unfair to require strict compliance with statutory conditions precedent to suit.

Petitioners next contend that a literal interpretation of the notice provision would defeat Congress’ intent in enacting RCRA; to support this argument, they cite passages from the legislative history of the first citizen suit statute, §304 of the Clean Air Amendments of 1970, indicating that citizen suits should be encouraged. See S. Rep. No. 91-1196, pp. 36-37 (1970), 1 Senate Committee on Public Works, 93d Cong., 2d Sess., A Legislative History of the Clean Air Amendments of 1970, pp. 436-437 (Comm. Print 1974). This reliance on legislative history is misplaced. We have held that “[a]bsent a clearly expressed legislative intention to the contrary,” the words of the statute are conclusive. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S., at 108. Nothing in the legislative history of the citizen suit provision militates against honoring the plain language of the notice requirement. Nor is this one of the “ ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 242 (1989), quoting Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 571 (1982). Rather, the legislative history indicates an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits. See, e. g., 116 Cong. Rec. 32927 (1970) (comments of Sen. Muskie); see also Note, Notice by Citizen Plaintiffs in Environmental Litigation, 79 Mich. L. Rev. 299, 301-307 (1980) (reviewing the legislative history of the Clean Air Amendments of 1970). Requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. See Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 60 (1987) (“The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action”). In many cases, an agency may be able to compel compliance through administrative action, thus eliminating the need for any access-to the courts. See 116 Cong. Rec. 33104 (1970) (comments of Sen. Hart). Second, notice gives the alleged violator “an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” Gwaltney, supra, at 60. This policy would be frustrated if citizens could immediately bring suit without involving federal or state enforcement agencies. Giving full effect to the words of the statute preserves the compromise struck by Congress.

Petitioners next assert that giving effect to the literal meaning of the notice provisions would compel “absurd or futile results.” United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940). In essence, petitioners make two arguments. First, petitioners, with amici, contend that strictly enforcing the 60-day delay provision would give violators an opportunity to cause further damage or . actually accomplish the objective that the citizen was attempting to stop. See, e. g., Save Our Sound Fisheries Assn. v. Callaway, 429 F. Supp. 1136, 1142-1145 (RI 1977) (Army Corps of Engineers violated three environmental statutes in order to award dredging contract before citizen suit to enjoin dredging could commence). Similarly, they assert that courts would be precluded from giving essential temporary injunctive relief until 60 days had elapsed. Although we do not underestimate the potential damage to the environment that could ensue during the 60-day waiting period, this problem arises as a result of the balance struck by Congress in developing the citizen suit provisions. Congress has addressed the dangers of delay in certain circumstances and made exceptions to the required notice periods accordingly. See, e. g., the Clean Water Act, as added, 86 Stat. 888, 33 U. S. C. §§ 1365(b) and 1317(a) (1982 ed.) (citizen suits may be brought immediately in cases involving violations of toxic pollutant effluent limitations); the Clean Air Amendments of 1970, 84 Stat. 1706, 42 U. S. C. § 7604(b) (1982 ed.) (citizen suits may be brought immediately in cases involving stationary-source emissions standards and other specified compliance orders). Moreover, it is likely that compliance with the notice requirement will trigger appropriate federal or state enforcement actions to prevent serious damage.

Second, petitioners argue that a strict construction of the notice provision would cause procedural anomalies. For example, petitioners contend that if a citizen notified Government agencies of a violation, and the agencies explicitly declined to act, it would be pointless to require the citizen to wait 60 days to commence suit. While such a result may be frustrating to the plaintiff, it is not irrational: as the Court of Appeals for the First Circuit noted, “[pjermitting immediate suit ignores the possibility that a violator or agency may change its mind as the threat of suit becomes more imminent.” Garcia v. Cecos Int’l, Inc., 761 F. 2d, at 82.

In sum, we conclude that none of petitioners’ arguments requires us to disregard the plain language of § 6972(b). “[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U. S. 807, 826 (1980). Therefore, we hold that the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a district court may not disregard these requirements at its discretion. The parties have framed the question presented in this case as whether the notice provision is jurisdictional or procedural. In light of our literal interpretation of the statutory requirement, we need not determine whether § 6972(b) is jurisdictional in the strict sense of the term. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 137 (1981) (Brennan, J., concurring in judgment) (“In 1937 the requirement of exhaustion of state administrative remedies was certainly a mandatory precondition to suit, and in that sense a ‘jurisdictional prerequisite’”).

As a general rule, if an action is barred by the terms of a statute, it must be dismissed. Thus in Baldwin County Welcome Center v. Brown, 466 U. S. 147 (1984), we approved the District Court’s determination that a claimant who failed to file a complaint within the 90-day statutory time period mandated by Title VII, 42 U. S. C. § 2000e-5(f )(1) (1982 ed.), had forfeited her right to pursue her claim. Accordingly, we rejected the Court of Appeals for the Eleventh Circuit’s conclusion that under the “ ‘generous’ ” interpretation required by the remedial nature of Title VII, claimant’s filing of a right-to-sue letter had tolled the 90-day period. 466 U. S., at 149. But cf. Oscar Mayer & Co. v. Evans, 441 U. S. 750, 764-765, and n. 13 (1979) (where requiring dismissal and refiling “would serve no purpose other than the creation of an additional procedural technicality,” a district court may comply with § 14(b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 607, 29 U. S. C. § 633(b) (1982 ed.), by holding an action in abeyance during the pendency of a mandatory waiting period) (citation omitted). As we have noted, dismissal of an RCRA suit serves important federal goals, see supra, at 29. Indeed, the EPA, the federal agency charged with enforcement of RCRA, interprets the notice provision as requiring dismissal for noncompliance. Tr. of Oral Arg. 35-39. Such a remedy for actions filed in violation of § 6972(b)(1) will further judicial efficiency; courts will have no need to make case-by-case determinations of when or whether failure to fulfill the notice requirement is fatal to a party’s suit.

Petitioners urge us not to require dismissal of this action after years of litigation and a determination on the merits. They contend that such a dismissal would unnecessarily waste judicial resources. We are sympathetic to this argument. The complex environmental and legal issues involved in this litigation have consumed the time and energy of a District Court and the parties for nearly four years. Nevertheless, the factors which have led us to apply decisions non-retroactively are not present in this case. See Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971). Our decision here does not establish a new rule of law; nor does it overrule clear past precedent on which litigants may have relied. Moreover, the statute itself put petitioners on notice of the requirements for bringing suit. Retroactive operation of our decision will further the congressional purpose of giving agencies and alleged violators a 60-day nonadversarial period to achieve compliance with RCRA regulations. Nor will the dismissal of this action have the inequitable result of depriving petitioners of their “right to a day in court.” Id., at 108. Petitioners remain free to give notice and file their suit in compliance with the statute to enforce pertinent environmental standards.

Accordingly, we hold that where a party suing under the citizen suit provisions of RCRA fails to meet the notice and 60-day delay requirements of § 6972(b), the district court must dismiss the action as barred by the terms of the statute.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Marshall,

with whom Justice Brennan joins, dissenting.

Purporting to rely on “the plain language” of 42 U. S. C. § 6972(b) (1982 ed.), ante, at 31, the Court holds that a plaintiff’s failure to comply with the 60-day prior notice provision of the Resource Conservation and Recovery Act of 1976, 42 U. S. C. § 6901 et seq. (1982 ed. and Supp. V), is necessarily fatal to his case. Yet even under the Court’s preferred “literal reading” of the statute, ante, at 26, the sanction for a violation of the notice provision is anything but clear. Because requiring district courts to dismiss every action filed in violation of § 6972(b) ill serves both judicial economy and Congress’ purposes in adopting RCRA, I dissent.

The relevant portion of the notice provision reads: “No action may be commenced under paragraph (a)(1) of this section — (1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator [of the Environmental Protection Agency (EPA)]; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator ... .” § 6972(b). There can be no doubt that the statute requires notice before a plaintiff can file a complaint. Nor is it open to debate that petitioners failed to notify the State and the EPA of the alleged violation 60 days before they filed a complaint in the District Court and thereby “commenced this action,” ante, at 23, within the meaning of Federal Rule of Civil Procedure 3. The Court states these inescapable facts and, without any further analysis, concludes that the sanction for violating §6972(b) is dismissal. The Court fails to recognize, however, that there is no necessary-connection between a violation of that statute and any particular sanction for noncompliance.

That a plaintiff’s failure to comply with statutory conditions precedent before bringing suit does not necessarily mandate dismissal of her action is apparent from our decision in Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979). In Oscar Mayer, we were asked to interpret § 14(b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 607, as set forth in 29 U. S. C. § 633(b) (1982 ed.), which provides in part that “no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law.” Because we found that “[t]he section is intended to give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination,” 441 U. S., at 755, we held the 60-day notice requirement to be a “mandatory, not optional,” precondition to suit. Id., at 758. Compare ante, at 26 (holding that RCRA’s 60-day notice provision “is a mandatory, not optional, condition precedent for suit”).

We nevertheless held that, rather than dismissing the suit, the court should hold it in abeyance for 60 days after the commencement of state proceedings, after which time the griev-ant could continue his federal suit. 441 U. S., at 764-765. We explained:

“Suspension of proceedings is preferable to dismissal with leave to refile. . . . ‘To require a second “filing” by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.’ Love v. Pullman Co., [404 U. S. 522, 526-527 (1972)] (charge may be held in suspended animation during deferral period). For this reason, suspension pending deferral is the preferred practice in the federal courts.” Id., at 765, n. 13 (citations omitted).

To be sure, part of our reason for finding that a stay regime was preferable to dismissal and refiling was that laypersons filed many of the suits at issue, a circumstance that is arguably not present in RCRA cases. See ante, at 28 (suggesting, without evidence, that citizen suits under RCRA tend to be filed by represented parties). The point for present purposes, however, is simply that violation of a mandatory precondition to suit does not necessarily require dismissal of the suit. Where, as here, the statute specifies no sanction, factors extrinsic to statutory language enter into the decision as to what sanction is appropriate. See also United States v. Robinson, 361 U. S. 220, 223-224 (1960) (in determining whether court is deprived of jurisdiction over appeal when notice of appeal is not timely filed and when rule specifically provides that a court may not enlarge the period for filing notice of appeal, the court should make “a detailed examination of the language, judicial interpretations, and history of [the relevant rules]”).

The Court’s own analysis in this case makes clear that the purposes of the notice requirement would be served equally well by a court order staying proceedings for 60 days as by dismissal, and that the broader purposes of the citizen suit provision would be better served by the former. The Court identifies two purposes that Congress intended the notice requirement to serve: “First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. . . . Second, notice gives the alleged violator ‘an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.’” Ante, at 29 (quoting Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 60 (1987)). All that is necessary to meet these concerns is a 60-day delay; whether it comes immediately before or immediately after the filing of the complaint is immaterial. Indeed, even the Court does not deny that stay and dismissal accomplish the same goals. See ante, at 26 (expressing no view on “[w]hether or not a stay is in fact the functional equivalent of a precommencement delay”).

Furthermore, one of Congress’ purposes in enacting the citizen suit provision, of which the notice requirement is a part, was to encourage citizen suits. See, e. g., S. Rep. No. 91-1196, pp. 36-37 (1970) (legislative history of identical provision of Clean Air Amendments of 1970, 42 U. S. C. § 7604). Compare ante, at 29. Where Congress intends to facilitate citizen suits, and where the salutary purposes of the notice provision can be equally well served by a stay as by dismissal, a regime that requires the dismissal of a citizen suit that has “consumed the time and energy of a District Court and the parties for nearly four years,” ante, at 32, and that has resulted in a judicial determination that respondent has violated RCRA, ante, at 24, is simply inconsistent with the will of Congress.

Perhaps recognizing that repeated invocations of the statute’s “plain language” do nothing to advance its analysis, the Court also offers, in support of the proposition that “[a]s a general rule, if an action is barred by the terms of a statute, it must be dismissed,” ante, at 31, a citation to Baldwin County Welcome Center v. Brown, 466 U. S. 147 (1984). The absence in the Court’s opinion of a quotation from Baldwin County Welcome Center in support of the proposition for which it is cited is no accident — the case does not stand for that proposition. In that case, the “issue before the Court of Appeals and before this Court [was] whether the filing of a right-to-sue letter with the District Court constituted the commencement of an action” within the meaning of Federal Rule of Civil Procedure 3. 466 U. S., at 150, n. 4. Finding “no persuasive justification” for the view that what constitutes a “complaint” under Rule 3 should be different in Title VII cases than in other federal litigation, the Court reinstated the District Court’s finding that a right-to-sue letter was not a “complaint.” Id., at 150. Nowhere did the Court so much as hint that it was recognizing or establishing a general rule that any action barred by the terms of a statute must be dismissed even if the statutory goals animating the rule can otherwise be served.

The Court’s reasoning reduces to an unexplained assertion followed by a citation to illusory authority. Because the Court’s conclusion is not compelled by the language of the notice provision, and because Congress’s twin purposes of fostering private enforcement of RCRA and of conserving judicial resources are better served by a rule permitting the district courts to stay actions such as this for 60 days rather than requiring dismissal, I dissent.

       See, e. g., § 505(b) of the Federal Water Pollution Control Act (Clean Water Act), 33 U. S. C. § 1365(b) (1982 ed.); § 310(d)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U. S. C. § 9659(d)(1) (1982 ed., Supp. V); § 105(g)(2) of the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U. S. C. § 1415(g)(2) (1982 ed.); § 12(b) of the Noise Control Act of 1972, 42 U. S. C. § 4911(b) (1982 ed.); § 16(b) of the Deepwater Port Act of 1974, 33 U. S. C. § 1515(b) (1982 ed.); § 1449(b) of the Safe Drinking Water Act, 42 U. S. C. § 300j-8(b) (1982 ed.); § 520(b) of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. § 1270(b) (1982 ed.); § 20(b) of the Toxic Substances Control Act, 15 U. S. C. § 2619(b); § 11(g)(2) of the Endangered Species Act of 1973, 16 U. S. C. § 1540(g)(2); § 23(a)(2) of the Outer Continental Shelf Lands Act Amendments of 1978, 43 U. S. C. § 1349(a)(2) (1982 ed.); § 11(b)(1) of the Act to Prevent Pollution from Ships, 33 U. S. C. § 1910(b)(1) (1982 ed.); § 117(b) of the Deep Seabed Hard Mineral Resources Act, 30 U. S. C. § 1427(b) (1982 ed.); § 326(d) of the Emergency Planning and Community Right-To-Know Act of 1986, 42 U. S. C. § 11046(d) (1982 ed., Supp. V); § 335(b) of the Energy Policy and Conservation Act, 42 U. S. C. § 6305(b) (1982 ed.); § 19(b) of the Natural Gas Pipeline Safety Act Amendments of 1976, 49 U. S. C. App. § 1686(b) (1982 ed.); and § 114(b) of the Ocean Thermal Energy Conversion Act of 1980, 42 U. S. C. § 9124(b) (1982 ed.).

       The Courts of Appeals for the First and Seventh Circuits, as well as the Court of Appeals for the Ninth Circuit in this case, have construed the notice provision as a mandatory prerequisite for suit. See, e. g., Garcia v. Cecos Int’l, Inc., 761 F. 2d 76 (CA1 1985) (construing the notice provision in RCRA); Highland Park v. Train, 519 F. 2d 681, 690-691 (CA7 1975), cert. denied, 424 U. S. 927 (1976) (construing the notice provision in the Clean Air Amendments of 1970). The Court of Appeals for the Third Circuit reached a different conclusion, holding that the notice requirement is satisfied if the proper parties had notice in fact of the alleged violations more than 60 days before the suit was filed, see, e. g., Proffitt v. Bristol Commissioners, 754 F. 2d 504, 506 (1985) (construing the notice provisions in the Clean Water Act and RCRA), or if the District Court stayed the proceedings for 60 days, see Pymatuning Water Shed Citizens for Hygienic Environment v. Eaton, 644 F. 2d 995, 996-997 (1981) (construing the notice provision in the Clean Water Act).

       The Court might be read to suggest that failure to comply with the 60-day notice provision deprives the court of subject-matter jurisdiction, thereby obligating a court to dismiss a case filed in violation of the notice provision no matter when the defendant raises the issue — indeed, regardless of whether the defendant does so. See ante, at 33 (when plaintiff fails to comply with notice provision, “the district court must dismiss the action”). As there is no dispute in this case that respondent timely raised the claim that petitioners had not complied with the notice provision, the question whether a defendant may waive the notice requirement is not before the Court, and any “resolution” of the question is necessarily dictum. In any event, I do not understand the Court to express any view on whether the notice requirement is waivable. See ante, at 31 (“[W]e need not determine whether § 6972(b) is jurisdictional in the strict sense of the term”).


text:
    MICHIGAN CITIZENS FOR AN INDEPENDENT PRESS et al. v. THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES, et al.
    No. 88-1640.
    Argued October 30, 1989
    Decided November 13, 1989

      William B. Schultz argued the cause for petitioners. With him on the briefs were David C. Vladeck and Alan B. Morrison.

      Deputy Solicitor General Merrill argued the cause for respondents. With him on the brief for the federal respondents were Acting Solicitor General Wallace, Acting Assistant Attorney General Schiffer, Michael R. Lazerwitz, and Douglas Letter. Stephen M. Shapiro, Andrew L. Frey, Kenneth S. Getter, Andrew J. Pincus, Clark M. Clifford, Robert A. Altman, and Robert P. Reznick filed a brief for respondent Detroit Free Press, Inc. John Stuart Smith, Gordon L. Lang, Corrine M. Yu, and Lawrence J. Aldrich filed a brief for respondent Detroit News, Inc.

        Paul L. Friedman, Anne D. Smith, Philip S. Anderson, and Peter G. Kumpe filed a brief for Little Rock Newspapers, Inc., as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for Detroit Renaissance, Inc., et al. by Herschel P. Fink, Richard E. Zuckerman, and David B. Jaffe; for Newspaper Drivers & Handlers, Teamsters Local No. 372, et al. by Gerry M. Miller; for Union Leaders representing Detroit Free Press employees by Bruce A. Miller; and for Jane Daugherty et al. by Barbara Harvey.

      Briefs of amici curiae were filed for the American Newspaper Publishers Association by P. Cameron DeVore, Marshall J. Nelson, and W. Terry

        Maguire; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; and for James Blanchard et al. by Richard C. Van Dusen.

   Per Curiam.

The judgment of the Court of Appeals for the District of Columbia Circuit is affirmed by an equally divided Court.

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