source: Caselaw Access Project

author: Justice Scalia Justice Brennan, Chief Justice Rehnquist, Justice Blackmun,

license: Public Domain

text:
    NEW ORLEANS PUBLIC SERVICE, INC. v. COUNCIL OF THE CITY OF NEW ORLEANS et al.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
    No. 88-348.
    Argued April 25, 1989
    Decided June 19, 1989

      Rex E. Lee argued the cause for petitioner. With him on the briefs were David W. Carpenter, Thomas O. Lind, Her

      schel L. Abbott, Jr., David G. Radlauer, and Edward H. Bergin.

      Richard J. Lazarus argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Acting Solicitor General Bryson, Deputy Solicitor General Shapiro, Catherine C. Cook, Jerome M. Feit, and Robert H. Solomon.

      Clinton A. Vince argued the cause for respondents. With him on the brief were Bernhardt K. Wruble, Nancy A. Wodka, and Okla Jones II.

      Briefs of amici curiae urging affirmance were filed for the National Association of Regulatory Utility Commissioners by William Paul Rodgers, Jr.; for the National League of Cities et al. by Bernia Ruth Solomon and Charles Rothfeld; and for the Pennsylvania Public Utility Commission by Laurence F. Barth and John F. Povilaitis.

   Justice Scalia

delivered the opinion of the Court.

In Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 (1986), we held that for purposes of setting intrastate retail rates a State may not differ from the Federal Energy Regulatory Commission’s allocations of wholesale power by imposing its own judgment of what would be just and reasonable. Last Term, in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 (1988), we held that FERC’s allocation of the $3 billion-plus cost of the Grand Gulf 1 nuclear reactor among the operating companies that jointly agreed to finance its construction and operation pre-empted Mississippi’s inquiry into the prudence of a utility retailer’s decision to participate in the joint venture. Today we confront once again a legal issue arising from the question of who must pay for Grand Gulf 1. Here the state ratemaking authority deferred to FERC’s implicit finding that New Orleans Public Service, Inc.’s decision to participate in the Grand Gulf venture was reasonable, but determined that the costs incurred thereby should not be completely reimbursed because, it asserted, the utility’s management was negligent in failing later to diversify its supply portfolio by selling a portion of its Grand Gulf power. Whether the State’s decision to provide less than full reimbursement for the FE Reallocated wholesale costs conflicts with our holdings in Nantahala and Mississippi Poiver & Light is not at issue in this case. Rather, we address the threshold question whether the District Court, which the utility petitioned for declaratory and injunctive relief from the state ratemaking authority’s order, properly abstained from exercising jurisdiction in deference to the state review process.

hH

Because the abstention questions at stake here have little to do with the intricacies of the factual and procedural history underlying the controversy, we may sketch the background of this case in brief. Petitioner New Orleans Public Service, Inc. (NOPSI), a producer, wholesaler, and retailer of electricity that provides retail electrical service to the city of New Orleans, is one of four wholly owned operating subsidiaries of Middle South Utilities, Inc. Middle South operates an integrated “power pool” in which each of the four operating companies transmits produced electricity to a central dispatch center and draws back from the dispatch center the power it needs to meet customer demand. In 1974, NOPSI and its fellow operating companies entered a contract with Middle South Energy, Inc. (MSE), another wholly owned Middle South subsidiary, whereby the operating companies agreed to finance MSE’s construction and operation of two 1250 megawatt nuclear reactors, Grand Gulf 1 and 2, in return for the right to the reactors’ electrical output. The estimated cost of completing the two reactors was $1.2 billion.

During the late 1970’s, consumer demand turned out to be far lower than expected, and regulatory delays, enhanced construction requirements, and high inflation led to spiraling costs. As a result, construction of Grand Gulf 2 was suspended, and the cost of completing Grand Gulf 1 alone eventually exceeded $3 billion. Not surprisingly, the cost of the electricity produced by the reactor greatly exceeded that of power generated by Middle South’s conventional facilities.

Acting pursuant to its exclusive regulatory authority over interstate wholesale power transactions, 49 Stat. 847, as amended, 16 U. S. C. §824 et seq., FERC conducted extensive proceedings to determine “just and reasonable” rates for Grand Gulf 1 power and to prescribe a “just, reasonable, and nondiscriminatory” allocation of Grand Gulf’s costs and output. In June 1985, the Commission issued a final order, Middle South Energy, Inc., 31 FERC ¶61,305, rehearing denied, 32 FERC ¶ 61,425 (1985), aff’d sub nom. Mississippi Industries v. FERC, 257 U. S. App. D. C. 244, 808 F. 2d 1525, rehearing granted and vacated in part, 262 U. S. App. D. C. 42, 822 F. 2d 1104, cert. denied, 484 U. S. 985 (1987), in which it concluded that, because the planned nuclear reactors had been designed “to meet overall System needs and objectives,” 31 FERC, p. 61,655, the Middle South subsidiaries should pay for the Grand Gulf project “roughly in proportion to each company’s share of System demand,” id., at 61,655-61,656. The Commission allocated 17 percent of Grand Gulf costs (approximately $13 million per month) to NOPSI, rejecting Middle South’s proposal of 29.8 percent as well as the 9 percent figure favored by the respondent here, the New Orleans City Council.

“Although it did not expressly discuss the ‘prudence’ of constructing Grand Gulf and bringing it on line, FERC implicitly accepted the uncontroverted testimony of [Middle South] executives who explained why they believed the decisions to construct and to complete Grand Gulf 1 were sound, and approved the finding that ‘continuing construction of Grand Gulf Unit No. 1 was prudent because Middle South’s executives believed Grand Gulf would enable the Middle South system to diversify its base load fuel mix and, it was projected, at the same time, produce power for a total cost (capacity and energy) which would be less than existing alternatives on the system.’” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S., at 363, quoting Middle South Energy, Inc., 26 FERC ¶63,044, pp. 65, 112-65, 113 (1984).

When NOPSI sought from the New Orleans City Council (Council) — the local ratemaking body with final authority over the utility’s retail rates, see 16 U. S. C. § 824(b); La. Rev. Stat. Ann. §§33:4405, 33:4495 (West 1988); Home Rule Charter of the City of New Orleans §4-1604 (1986), as amended by Ordinance No. 8264 M. C. S., as amended by Ordinance No. 10340 M. C. S.— a rate increase to cover the increase in wholesale rates resulting from FERC’s allocation of Grand Gulf costs, the Council denied an immediate rate adjustment, explaining that a public hearing was necessary to explore “‘the legality and prudency [sic] of the [contracts relating to Grand Gulf 1, and] the prudency [sic] and reasonableness of the said expenses.’” Brief for United States et al. as Amici Curiae 5, quoting Council Resolution R-85-423. NOPSI responded by filing an action for injunctive and declaratory relief in the United States District Court for the Eastern District of Louisiana, asserting that federal law required the Council to allow it to recover, through an increase in retail rates, its FERC-allocated share of the Grand Gulf expenses.

The District Court granted the Council’s motion to dismiss, holding that pursuant to the Johnson Act, 28 U. S. C. § 1342, it had no jurisdiction to entertain the action, and that even if it had jurisdiction it would be compelled by Burford v. Sun Oil Co., 319 U. S. 315 (1943), to abstain. On appeal, the Fifth Circuit initially reversed on both grounds, but later, on its own motion, vacated its earlier opinion in part and held that abstention was proper both under Burford and under Younger v. Harris, 401 U. S. 37 (1971). New Orleans Pub. Serv., Inc. v. New Orleans, 782 F. 2d 1236, modified, 798 F. 2d 858 (1986), cert. denied, 481 U. S. 1023 (1987) (NOPSI I).

By resolution of October 10, 1985, while NOPSI I was still pending before the Fifth Circuit, the Council initiated an investigation into the prudence of NOPSI’s involvement in Grand Gulf 1. Resolution R-85-636 stated the Council’s intention to examine all aspects of NOPSI’s relationship with Grand Gulf, including NOPSPs “‘efforts to minimize its total cost exposure for the purchase,’” and Grand Gulf’s “‘impact on its other power supply opportunities,”’ “‘for the purpose of determining what portion, if any, of NOPSI’s Grand Gulf 1 expense shall be assumed by [NOPSPs] shareholders.’” App. 113-114. The resolution specifically provided, however, that in setting the appropriate retail rate, the Council would “‘not seek to invalidate any of the agreements surrounding Grand Gulf 1 or to order NOPSI to pay MSE a rate other than that approved by the FERC.’” Id., at 114.

In November 1985, NOPSI filed a second suit in the United States District Court for the Eastern District of Louisiana, seeking to preclude the Council from requiring NOPSI or its shareholders to absorb any of NOPSPs FERC-allocated share of the Grand Gulf costs. The District Court dismissed the suit as unripe, but held in the alternative that abstention was appropriate. On appeal, the Fifth Circuit affirmed the judgment on ripeness grounds. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F. 2d 583 (1987).

The Council completed its prudence review on February 4, 1988, and immediately entered a final order disallowing $135 million of the Grand Gulf costs. The order was based on the Council’s determinations that “NOPSPs . . . oversight and review of its Grand Gulf obligation . . . was uncritical and severely deficient,” App. 24, and that NOPSI acted imprudently in failing to reduce the risk of its Grand Gulf commitment, in the wake of the Three Mile Island nuclear incident in March 1979, “by selling all or part of its share off-system,” id., at 24-25.

Upon receipt of the Council’s decree, NOPSI turned once again to the District Court for the Eastern District of Louisiana, seeking declaratory and injunctive relief on the ground that, in light of this Court’s recent decision in Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 (1986), the Council’s rate order was pre-empted by federal law. Although the District Court expressed considerable doubt as to the merits of the Council’s position on the pre-emption question, it concluded that, notwithstanding Nantahala, it should still abstain from deciding the suit.

Anticipating that the District Court might again abstain, NOPSI had filed a petition for review of the Council’s order in the Civil District Court for the Parish of Orleans, Louisiana. As filed, NOPSI’s petition raised only state-law claims and federal due process and takings claims, but NOPSI informed the state court by letter that it would amend to raise its federal pre-emption claim if the federal court once again dismissed its complaint. When that happened, it did so.

In the parallel federal proceedings, the Fifth Circuit affirmed the District Court’s dismissal, agreeing that the case was effectively controlled by NOPSI I, i. e., that Burford and Younger abstention applied. 850 F. 2d 1069 (1988). We granted certiorari. 488 U. S. 1003 (1989).

* — 1 | — i

Before proceeding to the merits of the abstention issues, it bears emphasis that the Council does not dispute the District Court’s jurisdiction to decide NOPSI’s pre-emption claim. Our cases have long supported the proposition that federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred. For example: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821). “ *[T]he courts of the United States are bound to proceed to judgment and to afford redress to suitors before them in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction.’” Chicot County v. Sherwood, 148 U. S. 529, 534 (1893) (citations omitted). “When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction .... The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.” Willcox v. Consolidated Gas Co., 212 U. S. 19, 40 (1909) (citations omitted). Underlying these assertions is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds. Kline v. Burke Construction Co., 260 U. S. 226, 234 (1922).

That principle does not eliminate, however, and the categorical assertions based upon it do not call into question, the federal courts’ discretion in determining whether to grant certain types of relief — a discretion that was part of the common-law background against which the statutes conferring jurisdiction were enacted. See Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 570-577 (1985). Thus, there are some classes of cases in which the withholding of authorized equitable relief because of undue interference with state proceedings is “the normal thing to do,” Younger v. Harris, 401 U. S., at 45. We have carefully defined, however, the areas in which such “abstention” is permissible, and it remains “‘the exception, not the rule.’” Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 236 (1984), quoting Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 813 (1976). As recently as last Term we described the federal courts’ obligation to adjudicate claims within their jurisdiction as “‘virtually unflagging.’” Deakins v. Monaghan, 484 U. S. 193, 203 (1988) (citation omitted).

With these principles in mind, we address the question whether the District Court, relying on Burford v. Sun Oil Co., 319 U. S. 315 (1943), and Younger v. Hams, supra, properly declined to exercise its jurisdiction in the present case. While we acknowledge that “[t]he various types of abstention are not rigid pigeonholes into which federal courts must try to fit cases,” Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 11, n. 9 (1987), the policy considerations supporting Bur- ford and Younger are sufficiently distinct to justify independent analyses.

A

In Burford v. Sun Oil Co., supra, a Federal District Court sitting in equity was confronted with a Fourteenth Amendment challenge to the reasonableness of the Texas Railroad Commission’s grant of an oil drilling permit. The constitutional challenge was of minimal federal importance, involving solely the question whether the commission had properly applied Texas’ complex oil and gas conservation regulations. Id., at 331, and n. 28. Because of the intricacy and importance of the regulatory scheme, Texas had created a centralized system of judicial review of commission orders, which “permit[ted] the state courts, like the Railroad Commission itself, to acquire a specialized knowledge” of the regulations and industry, id., at 327. We found the state courts’ review of commission decisions “expeditious and adequate,” id., at 334, and, because the exercise of equitable jurisdiction by comparatively unsophisticated Federal District Courts alongside state-court review had repeatedly led to “[djelay, misunderstanding of local law, and needless federal conflict with the state policy,” id., at 327, we concluded that “a sound respect for the independence of state action requir[ed] the federal equity court to stay its hand,” id., at 334.

We applied these same principles in Alabama Pub. Serv. Comm’n v. Southern R. Co., 341 U. S. 341 (1951), where a railroad sought to enjoin enforcement of an order of the Alabama Public Service Commission refusing permission to discontinue unprofitable rail lines. According to the railroad, requiring continued operation of the lines amounted to confiscation of property in violation of federal due process rights. Under Alabama law, a party dissatisfied with a final order of the Public Service Commission had an absolute right of appeal to the Circuit Court of Montgomery County, which was “empowered to set aside any Commission order found to be contrary to the substantial weight of the evidence or erroneous as a matter of law.” Id., at 348. This right of statutory-appeal “concentrated in one circuit court” which exercised “supervisory” powers was, we found, “an integral part of the regulatory process under the Alabama Code.” Ibid. Taking account of the unified nature of the state regulatory process, and emphasizing that “adequate state court review of [the] administrative order [was] available,” id., at 349, and that the success of the railroad’s constitutional challenge depended upon the “predominantly local factor of public need for the service rendered,” id., at 347, we held that the District Court ought to have abstained from exercising its jurisdiction, id., at 350.

From these cases, and others on which they relied, we have distilled the principle now commonly referred to as the “Burford doctrine.” Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River Water Conservation Dist. v. United States, supra, at 814.

The present case does not involve a state-law claim, nor even an assertion that the federal claims are “in any way entangled in a skein of state law that must be untangled before the federal case can proceed,” McNeese v. Board Of Education for Community Unit School Dist. 187, Cahokia, 373 U. S. 668, 674 (1963). The Fifth Circuit acknowledged as much in NOPSI I, but found “the absence of a state law claim . . . not fatal” because, it thought, “[t]he motivating force behind Burford abstention is ... a reluctance to intrude into state proceedings where there exists a complex state regulatory system.” 798 F. 2d, at 861-862. Finding that this case involved a complex regulatory scheme of “paramount local concern and a matter which demands local administrative expertise,” id., at 862, it held that the District Court appropriately applied Burford.

While Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a “potential for conflict” with state regulatory law or policy. Colorado River Water Conservation Dist., 424 U. S., at 815-816. Here, NOPSI’s primary claim is that the Council is prohibited by federal law from refusing to provide reimbursement for FERC-allocated wholesale costs. Unlike a claim that a state agency has misapplied its lawful authority or has failed to take into consideration or properly weigh relevant state-law factors, federal adjudication of this sort of pre-emption claim would not disrupt the State’s attempt to ensure uniformity in the treatment of an “essentially local problem,” Alabama Pub. Serv. Comm’n, supra, at 347.

That Burford abstention is not justified in these circumstances is strongly suggested by our decision in Public Util. Comm’n of Ohio v. United Fuel Gas Co., 317 U. S. 456 (1943), decided just four months prior to Burford, in which a District Court had enjoined on federal pre-emption grounds a State’s attempt to fix interstate gas rates. After determining that the State’s order impinged on the authority Congress had vested solely in the Federal Power Commission, we addressed the State’s contention that the District Court had nonetheless abused its discretion by granting injunctive relief:

“It is perhaps unnecessary at this late date to repeat the admonition that the federal courts should be wary of interrupting the proceedings of state administrative tribunals by use of the extraordinary writ of injunction. But this, too, is a rule of equity and not to be applied in blind disregard of fact. And what are the commanding circumstances of the present case? First, and most important, the orders of the state Commission are on their face plainly invalid. No inquiry beyond the orders themselves and the undisputed facts which underlie them is necessary in order to discover that they are in conflict with the federal Act” 317 U. S., at 468-469 (emphasis added).

Similarly in the case at bar, no inquiry beyond the four corners of the Council’s retail rate order is needed to determine whether it is facially pre-empted by FERC’s allocative decree and relevant provisions of the Federal Power Act. Such an inquiry would not unduly intrude into the processes of state government or undermine the State’s ability to maintain desired uniformity. It may, of course, result in an injunction against enforcement of the rate order, but “there is ... no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” Zablocki v. Redhail, 434 U. S. 374, 380, n. 6 (1978).

It is true that in its initial complaint, NOPSI asserted, as an alternative to its facial pre-emption challenge, that the rate order’s nominal emphasis on NOPSI’s failure in 1979-1980 to diversify its power supply by selling off a portion of its Grand Gulf allocation was merely a cover for the determination that the original Grand Gulf investment was itself unwise. Unlike the facial challenge, this claim cannot be resolved on the face of the rate order, because it hinges largely on the plausibility of the Council’s finding that NOPSI should have, and could have, diversified its supply portfolio and thereby lowered its average wholesale costs. See n. 2, supra. Analysis of this pretext claim requires an inquiry into industry practice, wholesale rates, and power availability during the relevant time period, an endeavor that demands some level of industry-specific expertise. But since, as the facts of this case amply demonstrate, wholesale electricity is not bought and sold within a predominantly local market, it does not demand significant familiarity with, and will not disrupt state resolution of, distinctively local regulatory facts or policies. The principles underlying Burford are therefore not implicated.

B

In Younger v. Harris, 401 U. S. 37 (1971), which involved a facial First Amendment-based challenge to the California Criminal Syndicalism Act, we held that absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions. That far-from-novel holding was based partly on traditional principles of equity, id., at 43-44, but rested primarily on the “even more vital consideration” of comity, id., at 44. As we explained, this includes “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Ibid.

The state-court proceeding at issue here is not a criminal prosecution, and one of the issues in the present case is whether the principle of Younger can properly be extended to this type of suit. NOPSI argues that that issue does not have to be reached, however, for several reasons. First, NOPSI argues that Younger does not require abstention in the face of a substantial claim that the challenged state action is completely pre-empted by federal law. Such a claim, NOPSI contends, calls into question the prerequisite of Younger abstention that the State have a legitimate, substantial interest in its pending proceedings, Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423, 432 (1982). Thus, it contends, a district court presented with a pre-emption-based request for equitable relief should take a quick look at the merits; and if upon that look the claim appears substantial, the court should endeavor to resolve it.

We disagree. There is no greater federal interest in enforcing the supremacy of federal statutes than in enforcing the supremacy of explicit constitutional guarantees, and constitutional challenges to state action, no less than preemption-based challenges, call into question the legitimacy of the State’s interest in its proceedings reviewing or enforcing that action. Yet it is clear that the mere assertion of a substantial constitutional challenge to state action will not alone compel the exercise of federal jurisdiction. See Younger, 401 U. S., at 53. That is so because when we inquire into the substantiality of the State’s interest in its proceedings we do not look narrowly to its interest in the outcome of the particular case — which could arguably be offset by a substantial federal interest in the opposite outcome. Rather, what we look to is the importance of the generic proceedings to the State. In Younger, for example, we did not consult California’s interest in prohibiting John Harris from distributing handbills, but rather its interest in “carrying out the important and necessary task” of enforcing its criminal laws. Id., at 51-52. Similarly, in Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S. 619 (1986), we looked not to Ohio’s specific concern with Dayton Christian Schools’ firing of Linda Hoskinson, but to its more general interest in preventing employers from engaging in sex discrimination. Id., at 628. Because pre-emption-based challenges merit a similar focus, the appropriate question here is not whether Louisiana has a substantial, legitimate interest in reducing NOPSI’s retail rate below that necessary to recover its wholesale costs, but whether it has a substantial, legitimate interest in regulating intrastate retail rates. It clearly does. “[T]he regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States.” Arkansas Electric Cooperative Corp. v. Arkansas Pub. Serv. Comm’n, 461 U. S. 375, 377 (1983). Accord, Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 205-206 (1983); Central Hudson Gas & Electric Corp. v. Public Sen. Comm’n of New York, 447 U. S. 567, 569 (1980).

NOPSI attempts to avoid this conclusion by stressing that it challenges not only the result of the Council’s deliberations, but the very right of the Council to conduct those deliberations. (This argument assumes, of course, that enjoining the Louisiana state courts can be equated with enjoining the Council proceedings, a point we shall address in due course.) But that is simply not true, if the reference to “the Council’s deliberations” is as generic as it should be. NOPSI does not deny that the State has an interest affirmatively protected by federal law in conducting proceedings to set intrastate retail electricity rates; rather, it contends that under the particular facts of the present case its FERC-allocated wholesale costs are not a proper subject for such proceedings. That is no different from the contention in Younger that the defendant’s violation of the particular (allegedly unconstitutional) state statute was not a proper subject of prosecution. In other words, this argument of NOPSI ultimately reduces once again to insistence upon too narrow an analytical focus.

NOPSI’s second argument to the effect that abstention is improper even assuming the state proceedings here are the sort to which Younger applies rests upon the principle that abstention is not appropriate if the federal plaintiff will “suffer irreparable injury” absent equitable relief. Younger, 401 U. S., at 43-44; see also id., at 48. Irreparable injury may possibly be established, Younger suggested, by a showing that the challenged state statute is “ ‘flagrantly and patently violative of express constitutional prohibitions . . . ,’” id., at 53-54, quoting Watson v. Buck, 313 U. S. 387, 402 (1941). Relying on Public Util. Comm’n of Ohio v. United Fuel Gas Co., 317 U. S. 456 (1943), where we upheld the order of a District Court enjoining the State Public Utilities Commission from attempting directly to regulate interstate gas prices because such actions were “on their face plainly invalid,” id., at 469 (emphasis added), NOPSI asserts that Younger’s posited exception for state statutes “flagrantly and patently vio-lative of express constitutional prohibitions” ought to apply equally to state proceedings and orders flagrantly and patently violative of federal pre-emption (which is unlawful only because it violates the express constitutional prescription of the Supremacy Clause). Thus, NOPSI argues, even if a substantial claim of federal pre-emption is not sufficient to render abstention inappropriate, at least a facially conclusive claim is. Perhaps so. But we do not have to decide the matter here, since the proceeding and order at issue do not meet that description. The Council has not sought directly to regulate interstate wholesale rates; nor has it questioned the validity of the FERC-prescribed allocation of power within the Grand Gulf system, or the FERC-prescribed wholesale rates; nor has it reexamined the prudence of NOPSI’s agreement to participate in Grand Gulf 1 in the first place. Rather, the Council maintains that it has examined the prudence of NOPSPs failure, after the risks of nuclear power became apparent, to diversify its supply portfolio, and that finding that failure negligent, it has taken the normal ratemaking step of making NOPSPs shareholders rather than the ratepayers bear the consequences. Nothing in this is directly or even indirectly foreclosed by the federal statute, the regulations implementing it, or the case law applying it. There may well be reason to doubt the Council’s necessary factual finding that NOPSI would have saved money had it diversified. See n. 2, supra. But we cannot conclusively say it is wrong without further factual inquiry — and what requires further factual inquiry can hardly be deemed “flagrantly” unlawful for purposes of a threshold abstention determination.

We conclude, therefore, that NOPSPs challenge must stand or fall upon the answer to the question whether the Louisiana court action is the type of proceeding to which Younger applies. Viewed in isolation, it plainly is not. Although our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings, Huffman v. Pursue, Ltd., 420 U. S. 592, 604 (1975); Trainor v. Hernandez, 431 U. S. 434, 444 (1977); Moore v. Sims, 442 U. S. 415, 423 (1979), and even to civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions, see Juidice v. Vail, 430 U. S. 327, 336, n. 12 (1977) (civil contempt order); Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 13 (1987) (requirement for the posting of bond pending appeal), it has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States. Colorado River Water Conservation Dist. v. United States, 424 U. S., at 817; Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 25 (1983); cf. Moore v. Sims, supra, at 423, n. 8 (“[W]e do not remotely suggest ‘that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies’ ” (citation omitted)).

In asserting that Younger is applicable, however, respondents focus not upon the Louisiana court action in isolation, but upon that action as a mere continuation of the Council proceeding. Their contention is that “[t]he Council’s own ratemaking and prudence inquiry, even though complete, constitutes an ‘ongoing proceeding’ because it is subject to state judicial review.” Brief for Respondents 31. The proper question, they contend, is whether the Council proceeding qualified for Younger treatment — because if it did, the proceeding is not complete until judicial review is concluded. Respondents argue by analogy to the treatment of court proceedings, for Younger purposes, as an uninter-ruptible whole. When, in a proceeding to which Younger applies, a state trial court has entered judgment, the losing party cannot, of course, pursue equitable remedies in federal district court while concurrently challenging the trial court’s judgment on appeal. For Younger purposes, the State’s trial-and-appeals process is treated as a unitary system, and for a federal court to disrupt its integrity by intervening in midprocess would demonstrate a lack of respect for the State as sovereign. For the same reason, a party may not procure federal intervention by terminating the state judicial process prematurely — forgoing the state appeal to attack the trial court’s judgment in federal court. “[A] necessary concomitant of Younger is that a party [wishing to contest in federal court the judgment of a state judicial tribunal] must exhaust his state appellate remedies before seeking relief in the District Court.” Huffman v. Pursue, Ltd., supra, at 608. Respondents urge that these principles apply equally where the initial adjudicatory tribunal is an agency — i. e., that the litigation, from agency through courts, is to be viewed as a unitary process that should not be disrupted, so that federal intervention is no more permitted at the conclusion of the administrative stage than during it.

We will assume, without deciding, that this is correct. Respondents’ case for abstention still requires, however, that the Council proceeding be the sort of proceeding entitled to Younger treatment. We think it is not. While we have expanded Younger beyond criminal proceedings, and even beyond proceedings in courts, we have never extended it to proceedings that are not “judicial in nature.” See Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S., at 433-434 (“It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as ‘judicial in nature.’ As such, the proceedings are of a character to warrant federal-court deference”). See also Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S., at 627 (“Because we found that the administrative proceedings in Middlesex were ‘judicial in nature’ from the outset, ... it was not essential to the decision that they had progressed to state-court review by the time we heard the federal injunction case”). The Council’s proceedings in the present case were not judicial in nature.

In Prentis v. Atlantic Coast Line Co., 211 U. S. 210 (1908), several railroads requested a Federal Circuit Court “to enjoin . . . the Virginia State Corporation Commission from publishing or taking any steps to enforce a certain order fixing passenger rates,” on the ground that the proposed rates were confiscatory. Id., at 223. To decide whether the federal court was at liberty to issue the requested injunction, we examined first the nature of the challenged agency action. Under Virginia law the commission was invested with both legislative and judicial powers, and we assumed, without deciding, that “if it were proceeding against [a railroad] to enforce [the rate] order or to punish [the railroad] for a breach, “it then would be sitting as a court and would be protected from interference on the part of courts of the United States,” id., at 226. But, upon analysis, we found the proceedings in the case at hand to be legislative. Justice Holmes, writing for the Court, explained as follows:

“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind . . . .” Ibid.

He then considered and rejected the notion that the nature of the agency’s proceedings might depend on their form:

“[The proper characterization of an agency’s actions] depends not upon the character of the body but upon the character of the proceedings. . . . And it does not matter what inquiries may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up. . . . The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case.” Id., at 226-227 (citations omitted).

We have since reaffirmed both the general mode of analysis of Prentis, see District of Columbia Court of Appeals v. Feldman, 460 U. S. 462, 476-479 (1983), and its specific holding that ratemaking is an essentially legislative act, Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 589 (1945). Thus, the Council’s proceedings here were plainly legislative.

That characterization does not, however, end the inquiry. In Prentis, while we found the challenged agency proceeding legislative in character, we nonetheless held equitable intervention inappropriate because, we determined, the attack on the rate order was premature. Although we made clear that those challenging the rates “were not bound to wait for proceedings brought to enforce the rate and to punish them for departing from it,” 211 U. S., at 228, because Virginia provided for legislative review of commission rates by appeal to the state courts, we concluded that the challengers “should make sure that the State in its final legislative action would not respect what they think their rights to be, before resorting to the courts of the United States.” Id., at 230. We were as concerned, in other words, to preserve the integrity of a unitary and still-to-be-completed legislative process as we were, under Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), to preserve the integrity of judicial proceedings. Similarly in the present case, if the Louisiana courts’ review of Council ratemaking was legislative in nature, NOPSI’s challenge to the Council’s order should have been dismissed as unripe.

There is no contention here that the Louisiana courts’ review involves anything other than a judicial act — that is, not “the making of a rule for the future,” but the declaration of NOPSI’s rights vis-a-vis the Council “on present or past facts and under laws supposed already to exist,” Prentis, supra, at 226. Nor does there seem to be room for such a contention. See State ex rel. Guste v. Council of New Orleans, 309 So. 2d 290, 294-296 (La. 1975). Since the state-court review is not an extension of the legislative process, NOPSPs pre-emption claim was ripe for federal review when the Council’s order was entered. See Lane v. Wilson, 307 U. S. 268, 274-275 (1939); Bacon v. Rutland R. Co., 232 U. S. 134, 138 (1914).

As a challenge to completed legislative action, NOPSI’s suit represents neither the interference with ongoing judicial proceedings against which Younger was directed, nor the interference with an ongoing legislative process against which our ripeness holding in Prentis was directed. It is, insofar as our policies of federal comity are concerned, no different in substance from a facial challenge to an allegedly unconstitutional statute or zoning ordinance — which we would assuredly not require to be brought in state courts. See Wooley v. Maynard, 430 U. S. 705, 711 (1977). It is true, of course, that the federal court’s disposition of such a case may well affect, or for practical purposes pre-empt, a future — or, as in the present circumstances, even a pending — state-court action. But there is no doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts. Viewed, as it should be, as no more than a state-court challenge to completed legislative action, the Louisiana suit comes within none of the exceptions that Younger and later cases have established.

For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice Brennan,

with whom Justice Marshall joins,

concurring.

I join the Court’s opinion. I continue to adhere to my view, however, that the abstention doctrine of Younger v. Hams, 401 U. S. 37 (1971), is in general inapplicable to civil proceedings. See Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 19 (1987) (Brennan, J., concurring in judgment); Trainor v. Hernandez, 431 U. S. 434, 450 (1977) (Brennan, J., dissenting); Juidice v. Vail, 430 U. S. 327, 341 (1977) (Brennan, J., dissenting); Huffman v. Pursue, Ltd., 420 U. S. 592, 613 (1975) (Brennan, J., dissenting).'

Chief Justice Rehnquist,

concurring in Parts I and II-B and concurring in the judgment.

I agree with the Court that our prior cases extending Younger beyond criminal prosecutions to civil proceedings have limited its application to proceedings which are “judicial in nature,” and that, under our longstanding characterization of the distinction between “judicial” and “legislative” proceedings, see Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226 (1908), the Council’s ratemaking proceedings at issue here were not judicial in nature. Under these circumstances, I agree that Younger abstention is inappropriate, despite the pendency of state-court review of the Council’s ratemaking order. Nothing in the Court’s opinion curtails our prior application of Younger to certain administrative proceedings which are “judicial in nature,” see Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S. 619 (1986); Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423 (1982); nor does it alter our prior case law indicating that such proceedings should be regarded as “ongoing” for the purposes of Younger abstention until state appellate review is completed, see Dayton Christian Schools, supra, at 629. With this understanding, I join the portion of the Court’s opinion holding that Younger abstention is inappropriate here.

I agree with the Court’s conclusion that Burford abstention is inappropriate on the facts of this case. But I would not foreclose the possibility of Burford abstention in a case like this had the State consolidated review of the orders of local ratemaking bodies in a specialized state court with power to hear a federal pre-emption claim. Accordingly, I concur only in the judgment as to Burford abstention.

Justice Blackmun,

concurring in the judgment.

I concur in the judgment in this case. I also agree with what I take to be the core of the majority’s reasoning: in the posture of this case, a legislative proceeding ended when the Council entered its ratemaking order; after that point, adjudication in the District Court would not have interfered with any ongoing proceeding, be it judicial, quasi-legislative, or legislative. Ante, at 372. I find, however, that the majority’s understanding of Burford abstention is much narrower than my own in respects not relevant to the disposition of this case, and that there is considerable tension between its discussion of the nature of the State’s interests in the Burford context and its discussion of the State’s interests in the Younger context. Compare ante, at 362-363, with ante, at 366-367. Furthermore, I am not entirely persuaded that this Court’s decisions applying Younger abstention to administrative proceedings that are judicial in nature leave open the question whether abstention must continue through the judicial review process. Ante, at 369, and n. 4. In my view, the majority’s observations on these questions are not necessary to the result or to the legal standard the majority has adopted.

       For a more in-depth account of the factual and regulatory history of the Grand Gulf nuclear power project, see Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 (1988).

       Adverting to the merits, the District Court commented: “[T]he Council faults NOPSI not for buying a ‘pig in a poke’ but for failing to find a sucker to buy it when the faux-pas became apparent.11
      “nP. T. Barnum once said of suckers: ‘There’s one born every minute.’ This court, however, is not ready to assume there are many, if any, such suckers purchasing electricity in the wholesale market today. Indeed, this court is somewhat mystified by the Council’s logic in arriving at the $135 million disallowance in the Rate Order. In the Rate Order, the Council simply concluded that since [NOPSI’s President] said so, savings were actually possible. Then, the Council seemingly pulled from thin air a figure of 8% for the prudence disallowance. However, the Council, and in this case, everyone else knows that the 8% figure was not pulled from thin air but represents the difference between FERC’s 17% allocation and what NOPSI consistently claims as its relative share of the [Middle South] system [and what the Council advocated unsuccessfully in the FERC proceeding], i. e., 9%. Thus, the disallowed costs bear no apparent relationship to the savings NOPSI is said to have foregone [sic]. Must not the ‘savings’ posited as the reason for the disallowance be at least possible in an actual economic market? Furthermore, must not the ultimate disallowance bear some rational relationship to the possible savings which support that dis-allowance? These questions must be resolved on another day in another court.” App. to Pet. for Cert. 30A-31A, and n. 11.

       NOPSI’s state suit has since been consolidated with a declaratory judgment action filed earlier by the Council, seeking a declaration that the rate order represented a just and reasonable exercise of regulatory power and that NOPSI’s failure to comply with the order would be unlawful, and with a suit filed by a local consumers’ rights organization, the Alliance for Affordable Energy, seeking to force the Council to disallow all or at least a larger proportion of the Grand Gulf costs. That case is still pending. NOPSI v. Council of New Orleans, No. 88-4511; Boissiere v. Cain, No. 88-2503; and Alliance for Affordable Energy, Inc. v. Council of New Orleans, No. 88-2502 (Civ. Dist. Ct., Parish of Orleans, La.).

       In Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., All U. S. 619 (1986), we held that the Younger doctrine prevented an injunction against an ongoing sex discrimination proceeding before the Ohio Civil Rights Commission. The only other decision of ours arguably applying Younger to an administrative proceeding, Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423 (1982), similarly involved a situation in which the proceeding was not yet at an end. The fact that Dayton Christian Schools relied, as an alternative argument, upon the fact that the federal challenge could be made upon appeal to the state courts, see 477 U. S., at 629, suggests, perhaps, that an administrative proceeding to which Younger applies cannot be challenged in federal court even after the administrative action has become final. But we have never squarely faced the question.


author: Justice Kennedy Justice Brennan, Justice Scalia,

text:
    JONES, SUPERINTENDENT, MISSOURI TRAINING CENTER FOR MEN AT MOBERLY v. THOMAS
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
    No. 88-420.
    Argued April 26, 1989
    Decided June 19, 1989

      Stephen D. Hawke, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the briefs were William L. Webster, Attorney General, and John M. Morris III, Assistant Attorney General.

      Springfield Baldwin, by appointment of the Court, 489 U. S. 1006, argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Bryson, Assistant Attorney General Dennis,
        and Brian J. Martin; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

   Justice Kennedy

delivered the opinion of the Court.

After it became apparent that two consecutive sentences had been imposed where state law permitted but one, a Missouri court vacated the shorter of the two and credited the time already served against the remaining sentence. At the time the court entered its order, the prisoner had completed serving the shorter sentence. The question presented is whether the longer sentence can remain in force, consistent with double jeopardy principles.

I

Respondent Larry Thomas attempted to rob a St. Louis, Missouri, auto parts store in 1972. Inside the store, respondent drew a gun and announced a holdup. One of the store’s customers was armed, and he tried to thwart the robbery. Respondent shot and killed him in an exchange of gunfire. Respondent was convicted in 1973 by a St. Louis Circuit Court jury both of attempted robbery and of first-degree felony murder for killing during the commission of a felony. The trial court sentenced respondent to consecutive terms of 15 years for the attempted robbery and life imprisonment for the felony murder, with the 15-year sentence to run first. The Missouri Court of Appeals affirmed respondent’s conviction on direct appeal. State v. Thomas, 522 S. W. 2d 74 (Mo. App. 1975).

In 1977, respondent sought state postconviction relief, arguing that it was improper for the trial court to impose separate sentences for felony murder and the underlying felony. While respondent’s case was pending, the Missouri Supreme Court accepted this argument in unrelated cases, holding that the Missouri Legislature had not intended to allow separate punishments under the felony-murder statute.

See State v. Morgan, 612 S. W. 2d 1 (1981) (en banc); State v. Olds, 603 S. W. 2d 601 (1980) (en banc).

In June 1981, with respondent’s postconviction motion still pending, the Governor of Missouri commuted his 15-year sentence for attempted robbery to “a term ending June 16, 1981.” Respondent remained in prison under the murder sentence. In 1982, the state trial court vacated respondent’s attempted robbery conviction and 16-year sentence, holding under Olds, supra, that respondent could not be required to serve both sentences. The Missouri Court of Appeals affirmed the order vacating the sentence, but rejected respondent’s argument that he was entitled to immediate release. Respondent had argued that because he had completed the shorter, commuted sentence, his continued confinement under the longer sentence constituted double jeopardy. The Missouri Court noted that respondent was in no way prejudiced by the trial court’s ruling, as his entire time of incarceration was credited against the life sentence. Thomas v. State, 665 S. W. 2d 621 (1983).

Respondent then sought a writ of habeas corpus in federal court. The United States District Court for the Eastern District of Missouri denied relief, holding that respondent had not suffered a double jeopardy violation because he had not been subjected to greater punishment than intended by the legislature. A three-judge panel of the Eighth Circuit reversed and remanded. 816 F. 2d 364 (1987). The majority opinion noted that as a result of the Governor’s commutation, respondent had legally satisfied the 15-year sentence. See State v. Cerny, 248 S. W. 2d 844 (Mo. 1952). It further held that under this Court’s decisions in Ex parte Lange, 18 Wall. 163 (1874), and In re Bradley, 318 U. S. 50 (1943), once respondent completed one of the two sentences that could have been imposed by law, he could not be required to serve any part of the other. The majority went on, however, to hold that the double jeopardy violation could be cured under this Court’s decision in Morris v. Mathews, 475 U. S. 237 (1986), which held that an unlawful conviction of both felony murder and the underlying felony could be remedied by re-sentencing on a lesser included offense of nonfelony murder. The panel therefore granted a conditional writ, so that respondent could be resentenced for the non-jeopardy-barred offense of nonfelony murder or released.

Judge McMillian concurred in part and dissented in part. He agreed that respondent’s double jeopardy rights were violated, but stated that he would not allow resentencing because he preferred the analysis of Justice Brennan’s dissenting opinion in Mathews. 816 F. 2d, at 371. Judge Bowman dissented, concluding that the double jeopardy prohibition against multiple punishments was not violated because respondent would serve time only under the life sentence, which was a single valid punishment intended by the legislature. Judge Bowman joined Judge Hanson, however, in holding that respondent could be resentenced under Mathews.

The Eighth Circuit granted rehearing en banc and ordered respondent’s unconditional release. 844 F. 2d 1337 (1988). The court held that under Lange, supra, and Bradley, supra, respondent could not be punished further once he had satisfied the sentence for attempted robbery. The court further held that Mathews, supra, was inapplicable because the prisoner in that case had not completed either of his sentences. Four judges dissented. We granted certiorari, 488 U. S. 1003 (1989), and now reverse.

t-H l-H

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” The Clause affords three protections to the criminal defendant. The first two, which are the most familiar, protect against a second prosecution for the same offense after acquittal, and against a second prosecution for the same offense after conviction. See, e. g., Ohio v. Johnson, 467 U. S. 493, 498 (1984). Neither of these protections against successive prosecutions is involved here. Rather, respondent’s initial conviction and sentence for both felony murder and the underlying felony violated the third aspect of the Double Jeopardy Clause, the protection against “multiple punishments for the same offense” imposed in a single proceeding. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969). The constitutional question in this case is what remedy is required to cure the admitted violation.

The answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is “limited to ensuring that the total punishment did not exceed that authorized by the legislature.” United States v. Halper, 490 U. S. 435, 450 (1989); see Johnson, supra, at 499; Missouri v. Hunter, 459 U. S. 359, 366-367 (1983). The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments. See, e. g., Johnson, supra, at 499. In this case, respondent’s conviction of both felony murder and attempted robbery gave rise to a double jeopardy claim only because the Missouri Legislature did not intend to allow conviction and punishment for both felony murder and the underlying felony. E. g., Hunter, supra, at 368; see also Morgan, supra, at 1; Olds, supra, at 510 (construing Missouri statute).

Given that, in its application to the case before us, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended,” Hunter, supra, at 366, the state-court remedy fully vindicated respondent’s double jeopardy rights. The Missouri court vacated the attempted robbery conviction and sentence and credited the time that respondent had served under that conviction against the remaining sentence for felony murder. This remedy of crediting time already served against the sentence that remained in place is consistent with our approach to multiple punishments problems in other contexts. See Pearce, supra, at 718-719 (credit for time served applied on resentencing at second trial following appeal). Respondent now stands convicted of felony murder alone, and his continued confinement under the single sentence imposed for that crime is not double jeopardy.

Respondent, as did the Court of Appeals below, relies on this Court’s opinions in Lange, supra, and Bradley, supra, for the proposition that the Double Jeopardy Clause requires immediate release for the prisoner who has satisfied the shorter of two consecutive sentences that could not both lawfully be imposed. We think this approach depends on an overly broad reading of those precedents. Lange and Bradley do contain language to the effect that once a defendant “had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone.” 18 Wall., at 176. But application of this language to the facts presented here is neither compelled by precedent nor supported by any double jeopardy principle.

In Ex parte Lange, the defendant had been convicted of stealing mail bags, a federal offense punishable by either a $200 fine or a 1-year prison term. The trial court, however, sentenced Lange to a $200 fine and one year in prison. Lange paid the fine and spent five days in prison before seeking a writ of habeas corpus from the trial court. The trial judge then vacated the earlier judgment and sentenced Lange to one year’s imprisonment from that date. Lange sought a writ of habeas corpus in this Court, which held that he was entitled to be released. The Court noted that Lange’s fine had already passed into the Treasury and could not be returned to him. If the second sentence were enforced, Lange would therefore have paid a $200 fine and spent a year plus five days in prison. See id., at 175. This punishment would obviously have exceeded that authorized by the legislature. Lange therefore stands for the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature, see United States v. DiFrancesco, 449 U. S. 117, 139 (1980), and not for the broader rule suggested by its dictum.

In re Bradley, 318 U. S. 50 (1943), provides a closer analogy to this case. The defendant in Bradley was sentenced for contempt to a $500 fine and six months’ imprisonment under a statute that provided only for fine or imprisonment. Bradley was taken to prison, and two days later paid the fine. The trial court then realized its mistake, amended its sentencing order by omitting the fine and retaining only the 6-month prison sentence, and instructed the Clerk to return the fine to Bradley’s attorney, who refused to accept it. This Court, in a brief opinion citing Lange, held that Bradley was entitled to be released, stating that where “one valid alternative provision of the original sentence has been satisfied, the petitioner is entitled to be freed of further restraint.” 318 U. S., at 52.

Strict application of Bradley would support respondent here. Under this view, satisfaction of one of two alternatives that could lawfully be imposed (e. g., the fine in Bradley and the commuted sentence here) is dispositive, and any attempt to correct the erroneous sentence by repaying the fine or crediting time served would be futile. We think this approach ignores important differences between this case and Bradley. Bradley and Lange both involved alternative punishments that were prescribed by the legislature for a single criminal act. The issue presented here, however, involves separate sentences imposed for what the sentencing court thought to be separately punishable offenses, one far more serious than the other. The alternative sentences in Bradley, moreover, were of a different type, fine and imprisonment. While it would not have been possible to “credit” a fine against time in prison, crediting time served under one sentence against the term of another has long been an accepted practice. See, e. a., North Carolina v. Pearce, 395 U. S. 711 (1969).

In a true alternative sentences case such as Bradley, it would be difficult to say that one punishment or the other was intended by the legislature, for the legislature viewed each alternative as appropriate for some cases. But here the legislature plainly intended one of two results for persons who committed murder in the commission of a felony: Either they were to be convicted of felony murder, or they were to be convicted separately of the felony and of nonfelony murder. It cannot be suggested seriously that the legislature intended an attempted robbery conviction to suffice as an alternative sanction for murder. The suggestion of Justice Scalia’s dissent, that the same analysis of legislative intent applies to the $200 fine imposed in Lange, post, at 390, is difficult to understand. By the terms of the statute itself, the legislature in Lange plainly did intend that in some cases the sentencing judge would impose “a mere $200 fine for the gravity of offense at issue there.” Ibid.

Justice Scalia observes that the Double Jeopardy Clause protects not only against punishment in excess of legislative intent, but also against additions to a sentence in a subsequent proceeding that upset a defendant’s legitimate expectation of finality. Post, at 393-394. But this case does not present the situation posited by the dissent where a judge imposes only a 15-year sentence under a statute that permitted 15 years to life, has second thoughts after the defendant serves the sentence, and calls him back to impose another 10 years. Post, at 392. Here we must determine whether the resentencing of respondent was indeed the imposition of an additional sentence, or a valid remedy for improper “cumulative sentences imposed in a single trial.” Hunter, 459 U. S., at 366. There can be no doubt it was the latter.

Justice Scalia’s discussion of the defendant’s expectation of finality makes no independent contribution to the inquiry, for in the end the dissent’s argument boils down to Bradley. Respondent plainly had no expectation of serving only an attempted robbery sentence when he was convicted by the Missouri trial court. Indeed, since Morgan and Olds had not been decided when respondent was sentenced, his expectation at that point was to serve both consecutive sentences. Once it was established that Missouri law would not allow imposition of both sentences, respondent had an expectation in serving “either 15 years (on the one sentence) or life (on the other sentence).” Post, at 395. The dissent rejects our conclusion that the Missouri court’s remedy fulfilled that expectation as “ruled out by Bradley.” Ibid. But as discussed above, we do not think the law compels application of Bradley beyond its facts. Instead, we believe that the intent of the legislature, which this aspect of the Double Jeopardy Clause serves to protect, provides the standard for evaluating the Missouri court’s remedy for the Clause’s violation.

Extension of Bradley to these facts would also lead to anomalous results. Under respondent’s theory, for example, everything depends on the order in which the consecutive sentences were originally imposed. Had respondent' been sentenced to the life sentence first, he would be serving the very same term, but could advance no double jeopardy claim. There is no indication that the order of the sentences was of the slightest importance to the sentencing judge, and there is no reason constitutional adjudication should turn on such fortuities. Respondent also concedes that where concurrent sentences are imposed, unlawful imposition of two sentences may be cured by vacating the shorter of the two sentences even where it has been completed. See Hardy v. United States, 292 F. 2d 192 (CA8 1961); United States v. Leather, 271 F. 2d 80 (CA7 1959), cert. denied, 363 U. S. 831 (1960). Ironically, respondent’s argument for immediate release thus depends on the fact that he was given consecutive terms, which are typically reserved for more culpable offenders. We have previously observed that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Bozza v. United States, 330 U. S. 160, 166-167 (1947). We will not depart from that principle today, and we decline to extend Bradley beyond its facts.

H I — I I — I

Double jeopardy is an area of the law filled with technical rules, and the protections it affords defendants might at times be perceived as technicalities. This is irrelevant where the ancient and important principles embodied in the Double Jeopardy Clause are implicated. “Violations of the Double Jeopardy Clause are no less serious than violations of other constitutional protections.” Mathews, 475 U. S., at 255 (Blackmun, J., concurring in judgment). But neither the Double Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls. The Missouri court’s alteration of respondent’s sentence to a single term for felony murder with credit for time served provided suitable protection of his double jeopardy rights.

The decision of the Court of Appeals is reversed, and the case is remanded for dismissal of respondent’s petition.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

I join in Justice Scalia’s dissenting opinion, with the exception of its closing footnote. I adhere to my view that the Double Jeopardy Clause requires, except in very limited circumstances, that all charges against a defendant growing out of a single criminal transaction be tried in one proceeding. See Ashe v. Swenson, 397 U. S. 436, 448-460 (1970) (Brennan, J., concurring); Morris v. Mathews, 476 U. S. 237, 257-268 (1986) (Brennan, J., dissenting). For this reason I do not agree that the State is free to retry respondent for a non-jeopardy-barred lesser included offense.

Justice Scalia,

with whom Justice Stevens joins, and with whom Justice Brennan and Justice Marshall join as to all but the footnote,

dissenting.

This is not the first time we have been called upon to consider whether a criminal defendant’s satisfaction of one of two alternative penalties prevents a court from imposing (or reimposing) the second penalty in a subsequent proceeding. In Ex parte Lange, 18 Wall. 163 (1874), the first case to recognize the Double Jeopardy Clause’s protection against multiple punishment, petitioner was convicted of stealing mailbags from the Post Office, under a statute carrying a punishment of either imprisonment for up to one year or a fine of up to $200. The presiding judge erroneously imposed the maximum of both punishments. After petitioner had paid his fine (which was remitted by the Clerk of Court to the United States Treasury) and had spent five days in prison, the judge realized his mistake and entered an order vacating the former judgment and resentencing petitioner to one year in prison. This Court stated that because petitioner had “fully performed, completed, and endured one of the alternative punishments which the law prescribed for that offence,” id., at 176, the court’s “power to punish for that offence was at an end, ibid, (emphasis added). Holding that the judge’s second order violated petitioner’s rights under the Double Jeopardy Clause, the Court ordered that petitioner be freed.

More recently, in In re Bradley, 318 U. S. 50 (1943), a District Judge found petitioner guilty of contempt and sentenced him to six months in prison and a $500 fine. Petitioner began serving his prison sentence, and his attorney paid the fine to the Clerk of the Court three days later. The fine was not paid into the Treasury. Later that day, having discovered that the relevant statute permitted imprisonment or fine, but not both, the court issued a new order amending the sentence to omit the fine and instructed the Clerk to return the $500 to petitioner. Petitioner refused to accept the money. We held that order to be “a nullity.” Id., at 52.

“When, on October 1, the fine was paid to the clerk and receipted for by him, the petitioner had complied with a portion of the sentence which could lawfully have been imposed. As the judgment of the court was thus executed so as to be a full satisfaction of one of the two alternative penalties of the law, the power of the court was at an end.” Ibid.

The present case is indistinguishable from Lange and Bradley. Here, as there, only one of two available punishments could lawfully be imposed for the conduct in question; and here, as there, the defendant fully satisfied one of the two. Under the law of the State of Missouri, respondent’s actions in the Reid Auto Parts store on November 8, 1972, allowed the State to convict him of attempted armed robbery, with a maximum penalty of 15 years in prison, or of felony murder, with a maximum penalty of life imprisonment. The State could not convict him or punish him for both offenses. Therefore, once respondent “fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone.” Ex parte Lange, supra, at 176. In the present case, as in Bradley, the State attempted in a second proceeding to “give back” the detriment respondent had suffered as a result of the fully satisfied alternative — by crediting the 15-year sentence for attempted armed robbery that he had already served against the second (life) sentence that had been imposed. But I see no more reason to allow a crediting here than there was to allow a refund in Bradley. Does this produce, as the Court alleges, an “anomalous resul[t],” ante, at 386, and an “unjustified windfall!],” ante, at 387? Undoubtedly. Just as it did in Bradley. And just as the Double Jeopardy Clause often does (to an even greater degree) in other contexts —where, for example, a prosecutorial error after the jury has been impaneled permits the defendant to go off scot free. E. g., Downum v. United States, 372 U. S. 734, 737-738 (1963).

The Court candidly recognizes that a “[s]trict application of Bradley,” ante, at 383, compels the conclusion that requiring respondent to serve the life sentence after completion of the 15-year sentence violates the Double Jeopardy Clause. It advances three related arguments, however, to explain why “strict application” can be avoided. I find none of them persuasive.

Most readily answered is the contention that “Bradley and Lange both involved alternative punishments that were prescribed by the legislature for a single criminal act.” Ante, at 384. This in no way distinguishes those cases, since it describes the facts of this case just as well. Although the sentencing court undoubtedly thought attempted armed robbery and felony murder “to be separately punishable offenses,” ibid., that court, we now know, was wrong. Under the correct view of Missouri law, the 15-year sentence and the life sentence were “alternative punishments . . . prescribed by the legislature for a single criminal act,” ibid. The Court states that “[i]t cannot be suggested seriously that the legislature intended an attempted robbery conviction to suffice as an alternative sanction for murder,” ante, at 384-385. Perhaps not, but it might also have been said in Lange that the legislature did not intend a mere $200 fine for the gravity of offense at issue there. Just as the judge in that case frustrated the probable legislative intent by inadvertently imposing the lesser penalty that was available, unaware that it would preclude the greater, so the judge in the present case frustrated the probable legislative intent by inadvertently entering the lesser conviction and sentence, unaware that it would preclude the greater. But that is beside the point. The Double Jeopardy Clause is not a device designed to assure effectuation of legislative intent — but to the contrary is often the means of frustrating it. The relevant question pertaining to legislative intent is not whether the Missouri Legislature intended an attempted armed robbery sentence for the crime of murder, but whether it intended that both a felony-murder sentence and an attempted armed robbery sentence could be imposed for the same crime. The Missouri Supreme Court has said not. See State v. Morgan, 612 S. W. 2d 1 (1981); State v. Olds, 603 S. W. 2d 501, 510 (1980). That being so, if respondent has served one of the two alternative sentences that could lawfully be imposed, he cannot be required to serve the other as well.

Second, the Court distinguishes Bradley on the ground that there “[t]he alternative sentences . . . were of a different type, fine and imprisonment,” ante, at 384, so that it would not have been possible to credit the satisfied fine against the as-yet-unserved sentence. It is difficult to imagine, however, why the difference between a credit and a refund (which could have been made in Bradley) should be of constitutional dimensions insofar as the Double Jeopardy Clause is concerned. Bradley, of course, did not rely upon any difference in the nature of the two punishments, but upon the mere fact that one of them had been completely executed. “As the judgment of the court was thus executed so as to be a full satisfaction of one of the alternative punishments of the law, the power of the court was at an end.” 318 U. S., at 52. Likewise Lange:

“[I]n that very case, and for that very offence, the prisoner had fully performed, completed, and endured one of the alternative punishments which the law prescribed .... [T]hus . . . [the court’s] power to punish for that offence was at an end-. . . . [T]he authority of the court to punish the prisoner was gone. The power was exhausted; its further exercise was prohibited.” 18 Wall., at 176.

Finally, the Court states that in the multiple punishments context, ‘“the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’” Ante, at 381, quoting Missouri v. Hunter, 459 U. S. 359, 366 (1983). If that were true it would certainly permit proceedings quite foreign to our criminal-law tradition. If, for example, a judge imposed only a 15-year sentence under a statute that permitted 15 years to life, he could — as far as the Court’s understanding of the Double Jeopardy Clause is concerned — have second thoughts after the defendant has served that time, and add on another 10 years. I am sure that cannot be done, because the Double Jeopardy Clause is a statute of repose for sentences as well as for proceedings. Done is done. The Court is able to quote Hunter for this unusual result only because its quotation is incomplete. What we said in that case, and have subsequently repeated in other cases, is that “[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Ibid. See also id., at 368 (The Double Jeopardy Clause does not “preclud[e] the imposition, in a single trial, of cumulative punishments pursuant to those statutes”) (emphasis added); id., at 368-369 (“Where . . . a legislature specifically authorizes cumulative punishment under two statutes . . . the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial”) (emphasis added).

In both of the cases in which we have applied the Court’s “legislative intent” formulation of the Double Jeopardy Clause to uphold the imposition of multiple penalties, the penalties had been imposed (or would have been imposed) in a single proceeding. See Missouri v. Hunter, supra (defendant convicted of both armed criminal action and the underlying felony of armed robbery in single trial); Ohio v. Johnson, 467 U. S. 493 (1984) (defendant pleaded guilty to two lesser offenses and trial court dismissed three greater offenses, stating that prosecution would be barred under Double Jeopardy Clause). But when the added punishment, even though authorized by the legislature, was imposed in a later proceeding, we held that the Double Jeopardy Clause was a bar. In United States v. Halper, 490 U. S. 435, 451, n. 10 (1989), we said:

“That the Government seeks the civil penalty in a second proceeding is critical in triggering the protections of the Double Jeopardy Clause. Since a legislature may authorize cumulative punishment under two statutes for a single course of conduct, the multiple-punishment inquiry in the context of a single proceeding focuses on whether the legislature actually authorized the cumulative punishment. See Ohio v. Johnson, 467 U. S. 493, 499-500 (1984). On the other hand, when the Government has already imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding.”

See also id., at 450 (“In a single proceeding the multiple punishment issue would be limited to ensuring that the total punishment did not exceed that authorized by the legislature”) (emphasis added); ibid. (“Nor does the decision [in Halper] prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized civil penalties in the same proceeding”) (emphasis added).

In the present case, of course, it was not the same proceeding but a second proceeding that added time to the 15-year sentence the defendant had already satisfied for his crime. In those circumstances, our cases establish that the relevant double jeopardy criterion is not only whether the total punishment authorized by the legislature has been exceeded, but also whether the addition upsets the defendant’s legitimate “expectation of finality in the original sentence,” United States v. DiFrancesco, 449 U. S. 117, 139 (1980). In the latter case we upheld against a double jeopardy challenge a statute that allowed the Government to appeal as inadequate a District Court’s sentence for a “dangerous special offender.” We did so because, by reason of the appeal provision itself, the defendant had no legitimate expectation of finality in the original sentence. See id., at 136-137.

We applied the same rule in Pennsylvania v. Goldhammer, 474 U. S. 28 (1985) (per curiam). There the defendant was convicted of 56 counts of forgery and 56 counts of theft. The trial court sentenced him to a term of imprisonment on one theft count and a term of probation on one forgery count, and suspended sentence on the remaining counts. On appeal, the Supreme Court of Pennsylvania held that the theft count on which the defendant had been sentenced was barred by the applicable statute of limitations, and denied, on double jeopardy grounds, the State’s request that the case be remanded for resentencing on the nonbarred theft counts. We did not reverse that disposition outright, but remanded so that the Supreme Court of Pennsylvania might consider, pursuant to DiFrancesco, “whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended.” 474 U. S., at 30. It is clear from DiFrancesco and Gold-hammer that when a sentence is increased in a second proceeding “the application of the double jeopardy clause . . . turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited . . . .” United States v. Fogel, 264 U. S. App. D. C. 292, 302, 829 F. 2d 77, 87 (1987) (Bork, J.).

The principle enunciated in DiFrancesco also explains our decision in Bozza v. United States, 330 U. S. 160 (1947). There the defendant was convicted of operating an illegal still, a crime which carried a mandatory sentence of a $100 fine and a term in prison. The trial court originally sentenced the defendant only to the term of imprisonment. When the court realized its mistake five hours later, it recalled the defendant for resentencing and imposed the $100 fine as well. We held that the resentencing did not violate the defendant’s rights under the Double Jeopardy Clause. There, as in DiFran-cesco, the defendant could not argue that his legitimate expectation of finality in the original sentence had been violated, because he was charged with knowledge that the court lacked statutory authority to impose the subminimum sentence in the first instance. See 330 U. S., at 166, 167. See also United States v. Arrellano-Rios, 799 F. 2d 520, 524 (CA9 1986) (stating that defendant can have no legitimate expectation of finality in an illegal sentence); United States v. Edmondson, 792 F. 2d 1492, 1496, n. 4 (CA9 1986) (same).

Applying DiFrancesco and Bozza here, it seems to me respondent must prevail. There is no doubt that the court had authority to impose the 15-year sentence, and respondent therefore had a legitimate expectation of its finality. There are only two grounds on which that could possibly be contested: (1) that the court had authority to impose a 15-year sentence, but not both a 15-year sentence and life, or (2) that his legitimate expectation was not necessarily 15 years, but rather either 15 years (on the one sentence) or life (on the other sentence). But at least where, as here, the one sentence has been fully served, these alternative approaches to defining his legitimate expectation are ruled out by Bradley. There also it could have been said that the court had no authority to impose both the $500 fine and the six months’ imprisonment; and there also it could have been said that the defendant’s legitimate expectation was not necessarily a $500 fine, but either a $500 fine or-six months’ imprisonment. But we in effect rejected those approaches, holding that once the fine had been paid a subsequent proceeding could not replace it with the alternative penalty. There is simply no basis for departing from that holding here.

The Double Jeopardy Clause is and has always been, not a provision designed to assure reason and justice in the particular case, but the embodiment of technical, prophylactic rules that require the Government to turn square corners. Whenever it is applied to release a criminal deserving of punishment it frustrates justice in the particular case, but for the greater purpose of assuring repose in the totality of criminal prosecutions and sentences. There are many ways in which these technical rules might be designed. We chose one approach in Bradley — undoubtedly not the only possible approach, but also not one that can be said to be clearly wrong. (The fact that it produces a “windfall” separates it not at all from other applications of the double jeopardy guarantee.) With technical rules, above all others, it is imperative that we adhere strictly to what we have stated the rules to be. A technical rule with equitable exceptions is no rule at all. Three strikes is out. The State broke the rules here, and must abide by the result.

For these reasons, I believe the Court of Appeals was correct to set aside respondent’s life sentence. I would therefore affirm the judgment of the Court of Appeals, and respectfully dissent from the Court’s disposition of this case.

       After the Missouri Supreme Court decided Morgan and Olds, the Missouri Legislature amended the felony murder statute. The statute now provides that punishment may be imposed for both felony murder (now defined as second-degree murder) and the underlying felony. See Mo. Rev. Stat. § 565.021(2) (1986).

       Even if the Double Jeopardy Clause provided an absolute bar to multiple punishments in a single trial regardless of legislative intent, see Missouri v. Hunter, 459 U. S. 359, 369 (1983) (Marshall, J., dissenting), the fact would remain that respondent is now serving only a single sentence for a single offense. Under any view of the substantive content of the double jeopardy bar against multiple punishments, respondent has had every benefit the Clause affords.

       The Court of Appeals’ conclusion that the state court could not cure the double jeopardy violation through the alternative procedure approved in Moms v. Mathews, 475 U. S. 237 (1986), is therefore difficult to understand. In Matheios, we held that a violation of the double jeopardy rule against multiple punishments for the same offense in successive trials could be cured by resentencing to a lesser included offense that was not jeopardy barred. In that case, Mathews was first convicted of aggravated robbery. In a separate trial, he was then convicted of felony murder based on the robbery. The second conviction violated the Double Jeopardy Clause. See, e. g., Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam) (successive prosecutions for felony murder and the underlying felony a double jeopardy violation). Yet Mathews’ conviction of felony murder necessarily entailed a jury finding that he was guilty of the lesser included offense of nonfelony murder. Because nonfelony murder is not the “same offense” as aggravated robbery, there was no double jeopardy bar to a successive prosecution for that offense. We therefore held that the violation could be cured by resentencing respondent for nonfelony murder, unless Mathews could show prejudice from the admission of evidence on the felony-murder charge that would not have been admissible as to nonfelony murder, in which case he would be entitled to a new trial.
      The Court of Appeals concluded that Mathews was not applicable to this case because the prisoner in Mathews had not completed his sentence for robbery prior to the resentencing for nonfelony murder, while here Thomas satisfied the attempted robbery sentence. 844 F. 2d 1337, 1342 (CA8 1988). This distinction has no legal significance. Because nonfelony murder is not the same offense as attempted robbery, see, e. g., Block-burger v. United States, 284 U. S. 299 (1932) (defining “same offense”), there would be no double jeopardy bar to punishing Thomas for that offense, even through a second full trial. The rule of Morris v. Mathews merely allows entry of judgment without the need for a new trial where the jury’s verdict of guilt as to felony murder in the first trial necessarily included a determination that the defendant committed nonfelony murder. Under the Missouri felony-murder statute that applied to Thomas, the jury did make this determination, and there is no reason that Mathews could not have applied here if the state court had chosen that course.

       I agree with the Court, ante, at 384-385, n. 3, that the Court of Appeals erred in saying that the State could not resentence or retry respondent for a non-jeopardy-barred lesser included offense, see Morris v. Mathews, 475 U. S. 237 (1986). Since it is undisputed, however, that the State has made no attempt to do that, that portion of the Court of Appeals’ opinion was the purest dictum, and no basis for reversal of its judgment.