author: Justice Scalia Justice Stevens,

text:
    OWEN v. OWEN
    No. 89-1008.
    Argued November 5, 1990
    Decided May 23, 1991

      Sc alia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, Blackmun, O’Connor, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 314.

      Roger L. Fishell argued the cause for petitioner. With him on the briefs was Isidore Kirshenbaum.

      Timothy B. Dyk argued the cause for respondent. With him on the brief was David A. Townsend.

   Justice Scalia

delivered the opinion of the Court.

The Bankruptcy Code allows the States to define what property a debtor may exempt from the bankruptcy estate that will be distributed among his creditors. 11 U. S. C. § 522(b). The Code also provides that judicial liens encumbering exempt property can be eliminated. § 522(f). The question in this case is whether that elimination can operate when the State has defined the exempt property in such a way as specifically to exclude property encumbered by judicial liens.

I

In 1975, Helen Owen, the respondent, obtained a judgment against petitioner Dwight Owen, her former husband, for approximately $160,000. The judgment was recorded in Sarasota County, Florida, in July 1976. Petitioner did not at that time own any property in Sarasota County, but under Florida law, the judgment would attach to any after-acquired property recorded in the county. B. A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So. 2d 667 (1943). In 1984, petitioner purchased a condominium in Sarasota County; upon acquisition of title, the property became subject to respondent’s judgment lien. Porter-Mallard Co. v. Dugger, 117 Fla. 137, 157 So. 429 (1934).

One year later, Florida amended its homestead law so that petitioner’s condominium, which previously had not qualified as a homestead, thereafter did. Under the Florida Constitution, homestead property is “exempt from forced sale . . . and no judgment, decree or execution [can] be a lien thereon . . . ,” Fla. Const., Art. 10, §4(a). The Florida courts have interpreted this provision, however, as being inapplicable to pre-existing liens, i. e., liens that attached before the property acquired its homestead status. Bessemer v. Gersten, 381 So. 2d 1344, 1347, n. 1 (Fla. 1980); Aetna Ins. Co. v. LaGasse, 223 So. 2d 727, 728 (Fla. 1969); Pasco v. Harley, 73 Fla. 819, 824-825, 75 So. 30, 32-33 (1917); Volpitta v. Fields, 369 So. 2d 367, 369 (Fla. App. 1979); Lyon v. Arnold, 46 F. 2d 451, 452 (CA5 1931). Pre-existing liens, then, are in effect an exception to the Florida homestead exemption.

In January 1986, petitioner filed for bankruptcy under Chapter 7 of the Code, and claimed a homestead exemption in his Sarasota condominium. The condominium, valued at approximately $135,000, was his primary asset; his liabilities included approximately $350,000 owed to respondent. The Bankruptcy Court discharged petitioner’s personal liability for these debts, and sustained, over respondent’s objections, his claimed exemption.

The condominium, however, remained subject to respondent’s pre-existing lien, and after discharge, petitioner moved to reopen his case to avoid the lien pursuant to § 522(f)(1). The Bankruptcy Court refused to decree the avoidance; the District Court affirmed, finding that the lien had attached before the property qualified for the exemption, and that Florida law therefore did not exempt the lien-eneumbered property. 86 B. R. 691 (MD Fla. 1988). The Court of Appeals for the Eleventh Circuit affirmed on the same ground. 877 F. 2d 44 (1989). We granted certiorari. 495 U. S. 929 (1990).

II

An estate in bankruptcy consists of all the interests in property, legal and equitable, possessed by the debtor at the time of filing, as well as those interests recovered or recoverable through transfer and lien avoidance provisions. An exemption is an interest withdrawn from the estate (and hence from the creditors) for the benefit of the debtor. Section 522 determines what property a debtor may exempt. Under § 522(b), he must select between a list of federal exemptions (set forth in § 522(d)) and the exemptions provided by his State, “unless the State law that is applicable to the debtor . . . specifically does not so authorize,” § 522(b)(1)— that is, unless the State “opts out” of the federal list. If a State opts out, then its debtors are limited to the exemptions provided by state law. Nothing in subsection (b) (or elsewhere in the Code) limits a State’s power to restrict the scope of its exemptions; indeed, it could theoretically accord no exemptions at all.

Property that is properly exempted under §522 is (with some exceptions) immunized against liability for prebank-ruptcy debts. § 522(c). No property can be exempted (and thereby immunized), however, unless it first falls within the bankruptcy estate. Section 522(b) provides that the debtor may exempt certain property “from property of the estate”; obviously, then, an interest that is not possessed by the estate cannot be exempted. Thus, if a debtor holds only bare legal title to his house—if, for example, the house is subject to a purchase-money mortgage for its full value — then only that legal interest passes to the estate; the equitable interest remains with the mortgage holder, § 541(d). And since the equitable interest does not pass to the estate, neither can it pass to the debtor as an exempt interest in property. Legal title will pass, and can be the subject of an exemption; but the property will remain subject to the lien interest of the mortgage holder. This was the rule of Long v. Bullard, 117 U. S. 617 (1886), codified in § 522. Only where the Code empowers the court to avoid liens or transfers can an interest originally not within the estate be passed to the estate, and subsequently (through the claim of an exemption) to the debtor.

It is such an avoidance provision that is at issue here, to which we now turn. Section 522(f) reads as follows:

“(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is —
“(1) a judicial lien; or
“(2) a nonpossessory, nonpurchase-money security interest . . . .”

The lien in the present case is a judicial lien, and we assume without deciding that it fixed “on an interest of the debtor in property.” See Farrey v. Sanderfoot, ante, p. 291. The question presented by this case is whether it “impairs an exemption to which [petitioner] would have been entitled under subsection (b).” Since Florida has chosen to opt out of the listed federal exemptions, see Fla. Stat. §222.20 (1989), the only subsection (b) exemption at issue is the Florida homestead exemption described above. Respondent suggests that, to resolve this case, we need only ask whether the judicial lien impairs that exemption. It obviously does not, since the Florida homestead exemption is not assertable against pre-existing judicial liens. To permit avoidance of the lien, respondent urges, would not presene the exemption but would expand it.

At first blush, this seems entirely reasonable. Several Courts of Appeals in addition to the Eleventh Circuit here have reached this result with respect to built-in limitations on state exemptions, though others have rejected it. What must give us pause, however, is that this result has been widely and uniformly rejected with respect to built-in limitations on the federal exemptions. Most of the federally listed exemptions (set forth in § 522(d)) are explicitly restricted to the “debtor’s aggregate interest” or the “debtor’s interest” up to a maximum amount. See §§ 522(d)(1)—(6), (8). If respondent’s approach to § 522(f) were applied, all of these exemptions (and perhaps others as well) would be limited by unavoided encumbering liens, see § 522(c). The federal homestead exemption, for example, allows the debtor to exempt from the property of the estate “[t]he debtor’s aggregate interest, not to exceed $7,500 in value, in ... a residence.” § 522(d)(1). If respondent’s interpretation of § 522(f) were applied to this exemption, a debtor who owned a house worth $10,000 that was subject to a judicial lien for $9,000 would not be entitled to the full homestead exemption of $7,500. The judicial lien would not be avoidable under § 522(f), since it does not “impair” the exemption, which is limited to the debtor’s “aggregate interest” of $1,000. The uniform practice of bankruptcy courts, however, is to the contrary. To determine the application of § 522(f) they ask not whether the lien impairs an exemption to which the debtor is in fact entitled, but whether it impairs an exemption to which he would have been entitled but for the lien itself.

As the preceding italicized words suggest, this reading is more consonant with the text of § 522(f)—which establishes as the baseline, against which impairment is to be measured, not an exemption to which the debtor “is entitled,” but one to which he “would have been entitled.” The latter phrase denotes a state of affairs that is conceived or hypothetical, rather than actual, and requires the reader to disregard some element of reality. “Would have been” but for what? The answer given, with respect to the federal exemptions, has been but for the lien at issue, and that seems to us correct. The only other conceivable possibility is but for a waiver— harking back to the beginning phrase of § 522(f), “Notwithstanding any waiver of exemptions . . . .” The use of contrary-to-fact construction after a “notwithstanding” phrase is not, however, common usage, if even permissible. Moreover, though one might employ it when the “notwithstanding” phrase is the main point of the provision in question (“Notwithstanding any waiver, a debtor shall retain those exemptions to which he would have been entitled under subsection (b)”), it would be most strange to employ it where the “notwithstanding” phrase, as here, is a,n aside. The point of § 522(f) is not to exclude waivers (though that is done in passing, waivers are addressed directly in § 522(e)) but to provide that the debtor may avoid the fixing of a lien. In that context, for every instance in which “would have been entitled” may be accurate (because the incidentally mentioned waiver occurred) there will be thousands of instances in which “is entitled” should have been used. It seems to us that “would have been entitled” must refer to the generality, if not indeed the universality, of cases covered by the provision; and on that premise the only conceivable fact we are invited to disregard is the existence of the lien.

This reading must also be accepted, at least with respect to the federal exemptions, if § 522(f) is not to become an irrelevancy with respect to the most venerable, most common, and most important exemptions. The federal exemptions for homesteads (§ 522(d)(1)), for motor vehicles (§ 522(d)(2)), for household goods and wearing apparel (§ 522(d)(3)), and for tools of the trade (§ 522(d)(6)), are all defined by reference to the debtor’s “interest” or “aggregate interest,” so that if respondent’s interpretation is accepted, no encumbrances of these could be avoided. Surely § 522(f) promises more than that — and surely it would be bizarre for the federal scheme to prevent the avoidance of liens on those items, but to permit it for the less crucial items (for example, an “unmatured life insurance contract owned by the debtor,” § 522(d)(7)) that are not described in such fashion as unquestionably to exclude liens.

We have no doubt, then, that the lower courts’ unanimously agreed-upon manner of applying § 522(f) to federal exemptions — ask first whether avoiding the lien would entitle the debtor to an exemption, and if it would, then avoid and recover the lien — is correct. The question then becomes whether a different interpretation should be adopted for state exemptions. We do not see how that could be possible. Nothing in the text of § 522(f) remotely justifies treating the two categories of exemptions differently. The provision refers to the impairment of “exemption[s] to which the debtor would have been entitled under subsection (b),” and that includes federal exemptions and state exemptions alike. Nor is there any overwhelmingly clear policy impelling us, if we possessed the power, to create a distinction that the words of the statute do not contain. Respondent asserts that it is inconsistent with the Bankruptcy Code’s “opt-out” policy, whereby the States may define their own exemptions, to refuse to take those exemptions with all their built-in limitations. That is plainly not true, however, since there is no doubt that a state exemption which purports to be available “unless waived” will be given full effect, even if it has been waived, for purposes of § 522(f)—the first phrase of which, as we have noted, recites that it applies “[notwithstanding any waiver of exemptions.” See Dominion Bank of Cumberlands, NA v. Nuckolls, 780 F. 2d 408, 412 (CA4 1985). Just as it is not inconsistent with the policy of permitting state-defined exemptions to have another policy disfavoring waiver of exemptions, whether federal- or state-created; so also it is not inconsistent to have a policy disfavoring the impingement of certain types of liens upon exemptions, whether federal- or state-created. We have no basis for pronouncing the opt-out policy absolute, but must apply it along with whatever other competing or limiting policies the statute contains.

On the basis of the analysis we have set forth above with respect to federal exemptions, and in light of the equivalency of treatment accorded to federal and state exemptions by § 522(f), we conclude that Florida’s exclusion of certain liens from the scope of its homestead protection does not achieve a similar exclusion from the Bankruptcy Code’s lien avoidance provision.

Ill

The foregoing conclusion does not necessarily resolve this case. Section 522(f) permits the avoidance of the “fixing of a lien on an interest of the debtor.” Some courts have held it inapplicable to a lien that was already attached to property when the debtor acquired it, since in such a case there never was a “fixing of a lien” on the debtor’s interest. See In re McCormick, 18 B. R. 911, 914 (Bkrtcy. Ct. WD Pa.), aff’d, 22 B. R. 997 (WD Pa. 1982); In re Scott, 12 B. R. 613, 615 (Bkrtcy. Ct. WD Okla. 1981). Under Florida law, the lien may have attached simultaneously with the acquisition of the property interest. If so, it could be argued that the lien did not fix “on an interest of the debtor.” See Farrey v. Sander-foot, ante, p. 291. The Court of Appeals did not pass on this issue, nor on the subsidiary question whether the Florida statute extending the homestead exemption was a taking, cf. United States v. Security Industrial Bank, 459 U. S. 70 (1982). We express no opinion on these points, and leave them to be considered by the Court of Appeals on remand.

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

dissenting.

The Court’s analysis puts the cart before the horse. As I read the statute at issue, it is not necessary to reach the issue the majority addresses. In construing the lien avoidance provisions of the Bankruptcy Code, it is important to recognize a distinction between two classes of cases: those in which the lien attached to the exempt property before the debtor had any right to claim an exemption, and those in which the lien attached after the debtor acquired that right. This case falls in the former category. As I shall explain, I believe it was correctly decided by the Bankruptcy Court, the District Court, and the Court of Appeals, and that the judgment should be affirmed.

I

The facts raise a straightforward issue: whether the lien avoidance provisions in § 522(f) of the Bankruptcy Code, 11 U. S. C. § 522(f), apply to a judicial lien that attached before the debtor had any claim to an exemption. It is undisputed that respondent’s judicial lien attached to petitioner’s Sarasota condominium when he acquired title to the property in November 1984. It is also undisputed that petitioner was not entitled to a homestead exemption when he acquired title because he was single. At that time, the exemption was available only to a “head of a household” under Article 10, § 4, of the Florida Constitution. An amendment that became effective in 1985 broadened the exemption to extend to “a natural person.” Fla. Const., Art. 10, § 4. On the effective date of this amendment petitioner became entitled to the homestead exemption at issue in this case. Thus, it is undisputed that petitioner had an exemption on his condominium when he filed his bankruptcy petition in 1986, but did not have a right to that exemption in 1984 when respondent’s judicial lien attached.

As I read the text of § 522(f), it does not authorize the avoidance of liens that were perfected at a time when the debtor could not claim an exemption in the secured property. The Bankruptcy Code deals with the subject of exemptions in two separate provisions that are relevant to this case. The first of these provisions, § 522(b), identifies property that is exempt from the claims of general creditors. Focusing on the legal interests in the property at the time of the bankruptcy, this section identifies property that is exempt from the bankrupt estate and therefore cannot be sold by the trustee to satisfy the claims of general creditors. See H. R. Rep. No. 95-595, pp. 360-361 (1977); S. Rep. No. 95-989, pp. 75-76 (1978). In this case, petitioner’s condominium in Sarasota, Florida, was entitled to a homestead exemption as a matter of Florida law when he filed for bankruptcy and therefore was properly excluded from the estate. See 877 F. 2d 44, 45 (CA11 1989). The property was fully protected from the claims of general creditors by the operation of § 522(b).

The second provision that is relevant to this suit, § 522(f), is concerned with the priority of secured creditors, not the claims of general creditors. Section 522(f) establishes a rule of priority between the debtor’s legal interest and creditors’ security interests in exempt property as opposed to the property of the estate. The statute establishes the priority by allowing the debtor to avoid the fixing of judicial liens and certain nonpossessory, nonpurchase-money security interests under the right circumstances to the extent that they encumber the exemption.

As it applies to judicial liens, § 522(f) raises two questions: (1) whether the exemption provides a basis for avoidance of the lien; and (2) if so, to what extent should the lien be avoided? The first question concerns the relative priority of conflicting claims on the same asset; on such issues, the timing of the claims is often decisive. The second question — I shall call it the “impairment question” — concerns the distribution of the proceeds of sale after the issue of priority has been resolved. This second question need not be reached unless the first question has been answered positively.

In determining whether the exemption provides a basis for avoiding the lien, § 522(f) turns our attention towards the exemption to which the debtor would have been entitled at the time the lien “fixed.” In United States v. Security Industrial Bank, 459 U. S. 70 (1982), this Court was presented with the question whether applying § 522(f)(2) to avoid non-possessory liens perfected before the enactment of the Bankruptcy Reform Act of 1978 would be a taking of property without compensation in violation of the Fifth Amendment of the Constitution. The Court avoided deciding that precise question by holding that § 522(f) did not apply retroactively to liens that had been perfected before the Bankruptcy Reform Act was enacted. Although there is no such constitutional question presented here, Security Industrial Bank establishes that the critical date for determining whether a lien may be avoided under the statute is the date of the fixing of that lien.

The date of the fixing of respondent’s lien on petitioner’s condominium is therefore controlling in this case. Because it is undisputed that petitioner was not entitled to an exemption when the lien attached, the subsequently acquired exemption does not provide a basis for avoidance of respondent’s lien. Thus, the priority question in this case was correctly decided by the Court of Appeals and its judgment should be affirmed.

II

The Court frames the question it decides as whether the lien avoidance provisions in § 522(f) “can operate when the State has defined the exempt property in such a way as specifically to exclude property encumbered by judicial liens.” Ante, at 306. That is an accurate description of the issue that has arisen in cases concerning the avoidability of non-possessory, nonpurchase-money liens on household goods. See cases cited, ante, at 310, nn. 1 and 2. In each of those cases the State’s definition of the exemption purported to exclude property interests that were subject to otherwise avoidable liens under § 522(f). Thus, the State’s definition of the exemption itself defeated the purpose of the federal lien avoidance provisions by narrowing the category of exempt property.

The majority and dissenting opinions in In re McManus, 681 F. 2d 353 (CA5 1982), adequately identify the issue to which the Court’s opinion today is addressed. In that case a finance company (AVCO) held a promissory note secured by a nonpossessory, nonpurchase-money security interest in the form of a chattel mortgage on some of the debtor’s household goods and furnishings. The debtors sought to avoid AVCO’s lien under § 522(f) on the ground that their household goods and furniture were exempted under § 522(b). The Bankruptcy Court and the District Court refused to avoid the lien. The Court of Appeals, following the reasoning of the Bankruptcy Court, affirmed. Louisiana had established a homestead exemption for certain household goods and furniture. Yet, it had also explicitly established in a separate code provision that notwithstanding its definitions of homestead exemptions, any household goods or furniture encumbered by a mortgage are not exempt property. The majority of the Court of Appeals held that the liens were not avoidable because the State of Louisiana had utilized its authority under § 522(b) to define its exemptions to exclude household goods subject to mortgages; hence the liens did not impair an exemption to which the debtors would have been entitled under § 522(b).

Under my reading of § 522(f), the Court of Appeals erred because it focused its attention entirely on the situation at the time of the bankruptcy. If it had analyzed the case by noting that at the time AVCO’s lien attached, the debtors were already entitled to an exemption, it should have concluded that the lien was avoidable. The dissenting judge came to that conclusion by correctly recognizing that the statutory text evidences an intent to consider the situation at the time of attachment. He wrote:

“The opening phrase of § 522(f), ‘[notwithstanding any waiver of exemptions,’ indicates that the subsection’s import is to return the situation to the status quo ante, i.e., prior to any improvident waiver of an exemption by the debtor. When the debtors entered the creditors’ office they enjoyed an exemption under Louisiana law from seizure and sale of their household goods; and when they left the office they could no longer claim an exemption for those goods solely because they had improvidently granted a security interest to the creditors covering such goods. I fail to see how this could be characterized as anything but a waiver of exemptions, subject to the avoiding power found in §522(f).” Id., at 358.

Although the Court’s opinion today resolves the question that was presented in McManus by adopting the position of the dissent in McManus, I disagree with the Court’s reasoning. The Court simply overlooks the fact that for purposes of determining whether a lien is avoidable — rather than for the purpose of determining the extent to which the lien should be avoided — the question whether the debtor “would have been entitled” to an exemption is addressed to the state of affairs that existed at the time the lien attached.

Finally, I must comment on the Court’s conclusion “that Florida’s exclusion of certain liens from the scope of its homestead protection does not achieve a similar exclusion from the Bankruptcy Code’s lien avoidance provision.” Ante, at 313-314. This statement treats Florida’s refusal to apply its broadened homestead exemption retroactively as the equivalent of Louisiana’s narrowing definition of its household goods exemption to exclude properties subject to a chattel mortgage. The conclusion is flawed. Petitioner would not have been entitled to a homestead exemption at the time respondent’s judicial lien attached; for that reason the lien avoidance provisions in § 522(f) of the Bankruptcy Code are not applicable. I would therefore affirm the judgment of the Court of Appeals.

       See In re Pine, 717 F. 2d 281 (CA6 1983); In re McManus, 681 F. 2d 353 (CA5 1982).

       See In re Brown, 734 F. 2d 119 (CA2 1984); Dominion Bank of Cumberland's, NA v. Nuckolls, 780 F. 2d 408 (CA4 1985); In re Thompson, 750 F. 2d 628 (CA8 1984); In re Leonard, 866 F. 2d 335 (CA10 1989).

      Exemption (7) refers to a life insurance contract “owned” by the debtor, and exemptions (10) and (11) refer to various benefits, awards, and payments that the debtor has a “right to receive.” §§ 522(d)(7), (10), (11). Only exemption (9), § 522(d)(9), contains no language arguably excluding property subject to lien.

         See, e. g., In re Simonson, 758 F. 2d 103, 105 (CA3 1985); In re Brantz, 106 B. R. 62, 68 (Bkrtey. Ct. ED Pa. 1989); In re Carney, 47 B. R. 296, 299 (Bkrtcy. Ct. Mass. 1985); In re Losieniecki, 17 B. R. 136, 138 (Bkrtcy. Ct. WD Pa. 1981). See also 3 Collier on Bankruptcy ¶ 522.29 (15th ed. 1990); B. Weintraub & A. Resnick, Bankruptcy Law Manual ¶4.08[2] (1986); Bowmar, Avoidance of Judicial Liens that Impair Exemptions in Bankruptcy: The Workings of 11 U. S. C. § 522(f)(1), 63 Am. Bankr. L. J. 375, 387-388, and n. 85 (1989) (hereinafter Bowmar). Some courts have held that § 522(f) allows the avoidance of liens even when, after the avoidance, there would be no debtor’s interest in the property to which a § 522(d) exemption could attach. See, e. g., In re Richardson, 55 B. R. 526 (Bkrtcy. Ct. ND Ohio 1985); In re Chesanow, 25 B. R. 228, 231 (Bkrtcy. Ct. Conn. 1982). But see, e. g., In re Hooper, 60 B. R. 640, 641 (Bkrtcy. Ct. WD Pa. 1986); In re Barone, 31 B. R. 540 (Bkrtcy. Ct. ED Pa. 1983). Today’s opinion does not speak to this issue. Finally, at least one court has suggested that equity excluding the liens is required for there to be an “interest” within the scope of § 522(f), In re Miller, 8 B. R. 43 (Bkrtcy. Ct. WD Mo. 1980), but that position has been rejected, In re Cole, 15 B. R. 322, 323, n. 1 (Bkrtcy. Ct. WD Mo. 1981).

       For a more precise formulation, see In re Brantz, 106 B. R., at 68; In re Carney, 47 B. R., at 299; Bowmar 388-392.

      In the dissent’s view, the question is whether the lien impairs an “exemption to which the debtor would have been entitled at the time the lien ‘fixed.’” Post, at 317. Under the Code, however, the question is whether the lien impairs an “exemption to which the debtor would have been entitled under subsection (b),” and under subsection (b), exempt property is determined “on the date of the filing of the petition,” not when the lien fixed. 11 U. S. C. §§ 522(f), (b)(2)(A). We follow the language of the Code.

       Section 522(f) provides:
      “(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is —
      “(1) a judicial lien; or
      “(2) a nonpossessory, nonpurchase-money security interest . . . .”

       The amendment was adopted in November 1984, but became effective on January 8, 1985. See Fla. Const., Art. 11, §5.

       Section 522(b) provides, in relevant part:
      “Notwithstanding section 541 of this title, an individual debtor may exempt from ¡property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection.
      “Such property is —
      “(1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative,
      “(2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place . . .

      I recognize that in reading the text of § 522(f), it is possible to find ambiguity in the timing issue from the placement of the phrase “under subsection (b) of this section.” As I understand the interaction between § 522(b) and § 522(f), however, those words merely define the exempt property for the purposes of determining the priorities between the debtor and secured creditors —namely the kinds of exemptions that may justify an avoidance. The fact that § 522(b) itself refers to the status of the lien at the time of bankruptcy for the purpose of identifying the property as exempt from the claims of general creditors is simply irrelevant to the priority question posed under § 522(f). The Court’s statement, ante, at 314, n. 6, that “[w]e follow the language of the Code” ignores this point, ignores our holding in United States v. Security Industrial Bank, 459 U. S. 70 (1982), and ignores our holding in Farrey v. Sanderfoot, ante, p. 291.

      Two of these cases, however, do address different issues. In re Brown, 734 F. 2d 119 (CA2 1984), involved a judicial lien. In that case the issue was whether the debtor could avoid a judicial lien on his homestead after a foreclosure sale where New York law did not allow an exemption on the proceeds of a foreclosure sale. In re Thompson, 750 F. 2d 628 (CA8 1984), was concerned with the issue of whether a debtor could avoid a lien on a Nebraska exemption on livestock under § 522(f)(2).

       In this case, in contrast, Florida’s definition of its household exemption excluded petitioner’s property because it was not used as a family residence at the time his former spouse’s lien attached. The subsequent broadening of Florida’s homestead exemption was not even arguably intended to protect the interest of lienholders or to defeat the purposes of the federal lien avoidance provisions.

      Another case with similar facts, Blazer Financial Services. Inc. v. Gipson was consolidated with In re McManus before the Court of Appeals. The debtors were a married couple who had filed a petition in bankruptcy and sought to avoid a finance company’s nonpossessory, nonpurchase-money security interest in their household goods. See 681 F. 2d, at 355.

      Judge Dyer buttressed his conclusion by reference to the legislative history:
      “This is clearly indicated in S. Rep. No. 95-989, 95th Cong., 2d Sess. 76, U. S. Code Cong. & Admin. News 1978, pp. 5787, 5862:
      “'[To] protect the debtors’ exemptions, his discharge, and thus his fresh start,. . . [t]he debtor may avoid ... to the extent that the property could have been exempted in the absence of the lien ... a nonpossessory, non-purchase-money security interest in certain household and personal goods.’ “Thus it was Congress’s clear intent that a debtor benefit to the fullest extent possible exemptions granted to him by applicable state laws, even when he may have improvidently waived such exemptions. It is equally clear that Congress was particularly concerned with eradicating certain un-eonscionable creditor practices in the consumer loan industry.” In re McManus, 681 F. 2d, at 358.


source: Caselaw Access Project

author: Justice Stevens Justice Scalia,

license: Public Domain

text:
    SUMMIT HEALTH, LTD., et al. v. PINHAS
    No. 89-1679.
    Argued November 26, 1990
    Decided May 28, 1991

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, MARSHALL, and Blackmun, JJ., joined. Scalia, J., filed a dissenting opinion, in which O’ConnoR, Kennedy, and SouteR, JJ., joined, post, p. 333.

      J. Mark Waxman argued the cause for petitioners. With him on the briefs was Tarni S. Smason.

      Lawrence Silver argued the cause for respondent. With him on the brief were Maxwell M. Blecher and Alicia G. Rosenberg.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Rill, Deputy Assistant Attorney General Boudin, Lawrence S. Robbins, Robert B. Nicholson, Marion L. Jetton, and James M. Spears.

      A brief of amici curiae urging affirmance was filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea S. Ordin, Chief Assistant Attorney General, Sanford N. Grushin, Assistant Attorney General, Kathleen E. Foote, Deputy Attorney General, Douglas B. Baily, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Alison J. Butterfield, John Steven Clark, Attorney General of Arkansas, Jeffrey A. Bell, Deputy Attorney General, Duane Woodard, Attorney General of Colorado, Richard Forman, Solicitor General, Clarine Nardi Riddle, Attorney General of Connecticut, Robert M. Langer, Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, Warren Price III, Attorney General of Hawaii, Robert A. Marks and Ted Gamble Clause, Deputy Attorneys General, Jim Jones, Attorney General of Idaho, Catherine K. Broad, Deputy Attorney General, Neil F. Hartigan, Attorney General of Illinois, Robert Ruiz, Solicitor General, Christine Rosso, Senior Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, John R. Perkins, Deputy Attorney General, James E. Tierney, Attorney General of Maine, Stephen L. Wessler, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, James M. Shannon, Attorney General of Massachusetts, George K. Weber, Assistant Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, Stephen P. Kilgi'iff, Deputy Attorney General, Thomas F. Pursell, Assistant Attorney General, Anthony J. Cel-ebrezze, Jr., Attorney General of Ohio, Doreen C. Johnson, Assistant Attorney General, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Eugene F. Wage, Chief Deputy Attorney General, Ca?i S. Hisiro, Senior Deputy Attorney General, Jim Mattox, Attorney General of Texas, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, Aliene D. Evans, Assistant Attorney General, R. Paul Van Dam, Attorney General of Utah, Sander Mooy, Assistant Attorney General, Mary Sue Terry, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, James M. Beaulaurier and Tina E. Kondo, Assistant Attorneys General, and Roger IT. Tompkins, Attorney General of West Virginia.
      Briefs of amici curiae were filed for the Arizona Hospital Association et al. by John P. Frank and Andrew S. Gordon; and for Richard A. Bolt by Clark C. Harighurst and Hal K. Litchforcl.

   Justice Stevens

delivered the opinion of the Court.

The question presented, is whether the interstate commerce requirement of antitrust jurisdiction is satisfied by allegations that petitioners conspired to exclude respondent, a duly licensed and practicing physician and surgeon, from the market for ophthalmological services in Los Angeles because he refused to follow an unnecessarily costly surgical procedure.

In 1987, respondent Dr. Simon J. Pinhas filed a complaint in District Court alleging that petitioners Summit Health, Ltd. (Summit), Midway Hospital Medical Center (Midway), its medical staff, and others had entered into a conspiracy to drive him out of business “so that other ophthalmologists and eye physicians [including four of the petitioners] will have a greater share of the eye care and ophthalmic surgery in Los Angeles.” App. 39. Among his allegations was a claim that the conspiracy violated §1 of the Sherman Act. The District Court granted defendants’ (now petitioners’) motion to dismiss the First Amended Complaint (complaint) without leave to amend, App. 315, but the United States Court of Appeals for the Ninth Circuit reinstated the antitrust claim. 894 F. 2d 1024 (1989). We granted certiorari, 496 U. S. 935 (1990), to consider petitioners’ contention that the complaint fails to satisfy the jurisdictional requirements of the Sherman Act, as interpreted in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232 (1980), because it does not describe a factual nexus between the alleged boycott and interstate commerce.

I

Because this case comes before us from the granting of a motion to dismiss on the pleadings, we must assume the truth of the material facts as alleged in the complaint. Respondent, a diplómate of the American Board of Ophthalmology, has earned a national and international reputation as a specialist in corneal eye problems. App. 7. Since October 1981, he has been a member of the staff of Midway in Los An-geles, and because of his special skills, has performed more eye surgical procedures, including cornea transplants and cataract removals, than any other surgeon at the hospital. Ibid.

Prior to 1986, most eye surgeries in Los Angeles were performed by a primary surgeon with the assistance of a second surgeon. Id., at 8. This practice significantly increased the cost of eye surgery. In February of that year, the administrators of the Medicare program announced that they would no longer reimburse physicians for the services of assistants, and most hospitals in southern California abolished the assistant surgeon requirement. Respondent, and certain other ophthalmologists, asked Midway to abandon the requirement, but the medical staff refused to do so. Ibid. Respondent explained that because Medicare reimbursement was no longer available, the requirement would cost him about $60,000 per year in payments to competing surgeons for assistance that he did not need. Id., at 9. Although respondent expressed a desire to maintain the preponderance of his practice at Midway, he nevertheless advised the hospital that he would leave if the assistant surgeon requirement were not eliminated. Ibid.

Petitioners responded to respondent’s request to forgo an assistant in two ways. First, Midway and its corporate parent offered respondent a “sham” contract that provided for payments of $36,000 per year (later increased by oral offer to $60,000) for services that he would not be asked to perform. Ibid. Second, when respondent refused to sign or return the “sham” contract, petitioners initiated peer review proceedings against him and summarily suspended, and subsequently terminated, his medical staff privileges. Id., at 10. The proceedings were conducted in an unfair manner by biased decisionmakers, and ultimately resulted in an order upholding one of seven charges against respondent, and imposing severe restrictions on his practice. When this action was commenced, petitioners were preparing to distribute an adverse report about respondent that would “preclude him from continued competition in the market place, not only at defendant Midway Hospital [but also]... in California, if not the United States.” Id., at 40. The defendants allegedly planned to disseminate the report “to all hospitals which Dr. Pinhas is a member [sic], and to all hospitals to which he may apply so as to secure similar actions by those hospitals, thus effectuating a boycott of Dr. Pinhas.” Ibid.

The complaint alleges that petitioner Summit owns and operates 19 hospitals, including Midway, and 49 other health care facilities in California, six other States, and Saudia Arabia. Id., at 3. Summit, Midway, and each of the four ophthalmic surgeons named as individual defendants, as well as respondent, are all allegedly engaged in interstate commerce. The provision of ophthalmological services affects interstate commerce because both physicians and hospitals serve nonresident patients and receive reimbursement through Medicare payments. Reports concerning peer review proceedings are routinely distributed across state lines and affect doctors' employment opportunities throughout the Nation.

In the Court of Appeals, petitioners defended the District Court's dismissal of the complaint on the ground that there was no allegation that interstate commerce would be affected by respondent's removal from the Midway medical staff. The Court of Appeals rejected this argument because "as a matter of practical economics" the hospital's "peer review process in general" obviously affected interstate commerce. 894 F. 2d, at 1032 (citation omitted). The court added:

"Pinhas need not, as appellees apparently believe, make the more particularized showing of the effect on interstate commerce caused by the alleged conspiracy to keep him from working. [McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S., at 242-243]. He need only prove that peer-review proceedings have an effect on interstate commerce, a fact that can hardly be disputed. The proceedings affect the entire staff at Midway and thus affect the hospital's interstate commerce. Appel-lees' contention that Pinhas failed to allege a nexus with interstate commerce because the absence of Pinhas's services will not drastically affect the interstate commerce of Midway therefore misses the mark and must be rejected." Ibid.

II

Congress enacted the Sherman Act in 1890. During the past century, as the dimensions and complexity of our economy have grown, the federal power over commerce, and the concomitant coverage of the Sherman Act, have experienced similar expansion. This history has been recounted before, and we need not reiterate it today.

We therefore begin by noting certain propositions that are undisputed in this case. Petitioner Summit, the parent of Midway as well as of several other general hospitals, is unquestionably engaged in interstate commerce. Moreover, although Midway’s primary activity is the provision of health care services in a local market, it also engages in interstate commerce. A conspiracy to prevent Midway from expanding would be covered by the Sherman Act, even though any actual impact on interstate commerce would be “‘indirect’” and “‘fortuitous.’” Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 744 (1976). No specific purpose to restrain interstate commerce is required. Id., at 745. As a “matter of practical economics,” ibid., the effect of such a conspiracy on the hospital’s “purchases of out-of-state medicines and supplies as well as its revenues from out-of-state insurance companies,” id., at 744, would establish the necessary interstate nexus.

This case does not involve the full range of activities conducted at a general hospital. Rather, this case involves the provision of ophthalmological services. It seems clear, however, that these services are regularly performed for out-of-state patients and generate revenues from out-of-state sources; their importance as part of the entire operation of the hospital is evident from the allegations of the complaint. A conspiracy to eliminate the entire ophthalmological department of the hospital, like a conspiracy to destroy the hospital itself, would unquestionably affect interstate commerce. Petitioners contend, however, that a boycott of a single surgeon has no such obvious effect because the complaint does not deny the existence of an adequate supply of other surgeons to perform all of the services that respondent’s current and future patients may ever require. Petitioners argue that respondent’s complaint is insufficient because there is no factual nexus between the restraint on this one surgeon’s practice and interstate commerce.

There are two flaws in petitioners’ argument. First, because the essence of any violation of §1 is the illegal agreement itself—rather than the overt acts performed in furtherance of it, see United States v. Kissel, 218 U. S. 601 (1910) — proper analysis focuses, not upon actual consequences, but rather upon the potential harm that would ensue if the conspiracy were successful. As we explained in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232 (1980):

“If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, 328 U. S. 781, 811 (1946); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 225, n. 59 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anti-competitive effect. United States v. United States Gypsum Co., 438 U. S. 422, 436, n. 13 (1978); see United States v. Container Corp., 393 U. S. 333, 337 (1969); United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 489 (1950); United States v. Socony-Vacuum Oil Co., supra, at 224-225, n. 59.” Id., at 243.

Thus, respondent need not allege, or prove, an actual effect on interstate commerce to support federal jurisdiction.

Second, if the conspiracy alleged in the complaint is successful, “ ‘as a matter of practical economics’ ” there will be a reduction in the provision of ophthalmological services in the Los Angeles market. McLain, 444 U. S., at 246 (quoting Hospital Building Co. v. Rex Hospital Trustees, 425 U. S., at 745). In cases involving horizontal agreements to fix prices or allocate territories within a single State, we have based jurisdiction on a general conclusion that the defendants’ agreement “almost surely” had a marketwide impact and therefore an effect on interstate commerce, Burke v. Ford, 389 U. S. 320, 322 (1967) (per curiam), or that the agreement “necessarily affect[ed]” the volume of residential sales and therefore the demand for financing and title insurance provided by out-of-state concerns. McLain, 444 U. S., at 246. In the latter case, we explained:

“To establish the jurisdictional element of a Sherman Act violation it would .be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents’ brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents’ activity that are alleged to be unlawful.” Id., at 242-243.

Although plaintiffs in McLain were consumers of the conspirators’ real estate brokerage services, and plaintiff in this case is a competing surgeon whose complaint identifies only himself as the victim of the alleged boycott, the same analysis applies. For if a violation of the Sherman Act occurred, the case is necessarily more significant than the fate of “just one merchant whose business is so small that his destruction makes little difference to the economy.” Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, 213 (1959) (footnote omitted). The case involves an alleged restraint on the practice of ophthalmological services. The restraint was accomplished by an alleged misuse of a congressionally regulated peer review process, which respondent characterizes as the gateway that controls access to the market for his services. The gateway was closed to respondent, both at Midway and at other hospitals, because petitioners insisted upon adhering to an unnecessarily costly procedure. The competitive significance of respondent’s exclusion from the market must be measured, not just by a particularized evaluation of his own practice, but rather, by a general evaluation of the impact of the restraint on other participants and potential participants in the market from which he has been excluded.

We have no doubt concerning the power of Congress to regulate a peer review process controlling access to the market for ophthalmological surgery in Los Angeles. Thus, respondent’s claim that members of the peer review committee conspired with others to abuse that process and thereby deny respondent access to the market for ophthalmological services provided by general hospitals in Los Angeles has a sufficient nexus with interstate commerce to support federal jurisdiction.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Scalia,

with whom Justice O’Connor, Justice Kennedy, and Justice Souter join, dissenting.

The Court treats this case as involving no more than a conspiracy among eye surgeons at Midway Hospital to eliminate one of their competitors. That alone, it concludes, restrains trade or commerce among the several States within the meaning of the Sherman Act. In my judgment, the conspiracy alleged by the complaint, fairly viewed, involved somewhat more than that; but even so falls far short of what is required for Sherman Act jurisdiction. I respectfully dissent.

I

The Court has “no doubt concerning the power of Congress to regulate a peer review process controlling access to the market for ophthalmological surgery in Los Angeles,” and concludes that “respondent’s claim . . . has a sufficient nexus with interstate commerce to support federal jurisdiction.” Ante, at 332 and this page. I agree with all that. Unfortunately, however, the question before us is not whether Congress could reach the activity before us here if it wanted to, but whether it has done so via the Sherman Act. That enactment does not prohibit all conspiracies using instrumental-ities of commerce that Congress could regulate. Nor does it prohibit all conspiracies that have sufficient constitutional “nexus” to interstate commerce to be regulated. It prohibits only those conspiracies that are “in restraint of trade or commerce among the several States.” 15 U. S. C. § 1. This language commands a judicial inquiry into the nature and potential effect of each particular restraint. “The jurisdictional inquiry under general prohibitions like . . . § 1 of the Sherman Act, turning as it does on the circumstances presented in each case and requiring a particularized judicial determination, differs significantly from that required when Congress itself has defined the specific persons and activities that affect commerce and therefore require federal regulation.” Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 197, n. 12 (1974).

Until 1980, the nature of this jurisdictional inquiry (with respect to alleged restraints not targeted at the very flow of interstate commerce) was clear: The question was whether the restraint at issue, if successful, would have a substantial effect on interstate commercial activity. See Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 741, 744 (1976); Burke v. Ford, 389 U. S. 320, 321-322 (1967) (per curiam); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 237 (1948). See Note, The Interstate Commerce Test for Jurisdiction in Sherman Act Cases and Its Substantive Applications, 15 Ga. L. Rev. 714, 716-717 (1981). As I shall discuss in due course, that criterion would have called for reversal in the present case. See United States v. Oregon State Medical Society, 343 U. S. 326 (1952).

Unfortunately, in 1980, the Court seemed to abandon this approach. McLain v. Real Estate Board of New Orleans, Inc., 444 U. S. 232 (1980), appeared to shift the focus of the inquiry away from the effects of the restraint itself, asking instead whether the “[defendants’] activities which allegedly have been infected by a price-fixing conspiracy . . . have a not insubstantial effect on the interstate commerce involved.” Id., at 246 (emphasis added). The result in McLain would have been the same under the prior test, since the subject of the suit was an alleged massive conspiracy by all realtors in the Greater New Orleans area, involving price fixing, suppression of market information, and other anticom-petitive practices. The Court’s resort to the more expansive “infected activity” test was prompted by the belief that focusing upon the effects of the restraint itself would require plaintiffs to prove their case at the jurisdictional stage. See id., at 243. That belief was in error, since the prior approach had simply assumed, rather than required proof of, the success of the conspiracy.

Thus, as a dictum based upon a misconception, the “infected activities” approach was introduced into antitrust law. It was not received with enthusiasm. Most courts simply finessed the language of McLain and said that nothing had changed, i. e., that the ultimate question was still whether the unlawful conduct itself, if successful, would have a substantial effect on interstate commerce. See, e. g., Cordova & Simonpietri Ins. Agency, Inc. v. Chase Manhattan Bank N. A., 649 F. 2d 36, 45 (CA1 1981); Furlong v. Long Island College Hospital, 710 F. 2d 922, 925-926 (CA2 1983); Sarin v. Samaritan Health Center, 813 F. 2d 755, 758-759 (CA6 1987); Seglin v. Esau, 769 F. 2d 1274, 1280 (CA7 1985); Hayden v. Bracy, 744 F. 2d 1338, 1343, n. 2 (CA8 1984); Crane v. Intermountain Health Care, Inc., 637 F. 2d 715, 724 (CA10 1980) (en banc); see also Thompson v. Wise General Hospital, 707 F. Supp. 849, 854-856 (WD Va. 1989), aff’d, 896 F. 2d 547 (CA4 1990). Others, however, took McLain at face value — and of course immediately fell into disagreement over the proper application of the new test. With respect to a restraint like the one at issue here, for example, how does one decide which “activities of the defendants” are “infected”? Are they all the activities of the hospital, Weiss v. York Hospital, 745 F. 2d 786, 824-825, and n. 66 (CA3 1984)? Only the activities of the eye surgery department, see Mitchell v. Frank R. Howard Memorial Hospital, 853 F. 2d 762, 764, n. 1 (CA9 1988)? The entire practice of eye surgeons who use the hospital, El Shahawy v. Harrison, 778 F. 2d 636, 641 (CA11 1985)? Or, as the Ninth Circuit apparently found in this case, the peer review process itself?

Today the Court could have cleared up the confusion created by McLain, refocused the inquiry along the lines marked out by our previous cases (and still adhered to by most Circuits), and reversed the judgment below. Instead, it compounds the confusion by rejecting the two competing interpretations of McLain and adding yet a third candidate to the field, one that no court or commentator has ever suggested, let alone endorsed. To determine Sherman Act jurisdiction it looks neither to the effect on commerce of the restraint, nor to the effect on commerce of the defendants’ infected activity, but rather, it seems, to the effect on commerce of the activity from which the plaintiff has been excluded. As I understand the Court’s opinion, the test of Sherman Act jurisdiction is whether the entire line of commerce from which Dr. Pinhas has been excluded affects interstate commerce. Since excluding him from eye surgery at Midway Hospital effectively excluded him from the entire Los Angeles market for eye surgery (because no other Los Angeles hospital would accord him practice privileges after Midway rejected him), the jurisdictional question is simply whether that market affects interstate commerce, which of course it does. This analysis tells us nothing about the substantiality of the impact on interstate commerce generated by the particular conduct at issue here.

Determining the “market” for a product or service, meaning the scope of other products or services against which it must compete, is of course necessary for many purposes of antitrust analysis. But today’s opinion does not identify a relevant “market” in that sense. It declares Los Angeles to be the pertinent “market” only because that is the entire scope of Dr. Pinhas’ exclusion from practice. If the scope of his exclusion had been national, it would have declared the entire United States to be the “market,” though it is quite unlikely that all eye surgeons in the United States are in competition. I cannot understand why “market” in the Court’s peculiar sense has any bearing upon this restraint’s impact on interstate commerce, and hence upon Sherman Act jurisdiction. The Court does not even attempt to provide an explanation.

The Court’s focus on the Los Angeles market would make some sense if Midway was attempting to monopolize that market, or conspiring with all (or even most) of the hospitals in Los Angeles to fix prices there, cf. McLain v. Real Estate Board of New Orleans, Inc., 444 U. S. 232 (1980). But the complaint does not mention § 2 of the Sherman Act, and Dr. Pinhas does not allege a conspiracy to affect eye surgery in the Los Angeles market. He merely alleges a conspiracy to exclude him from that market by a sort of group boycott. Since group boycotts are per se violations (not because they necessarily affect competition in the relevant market, but because they deprive at least some consumers of a preferred supplier, see R. Bork, The Antitrust Paradox 331-332 (1978)), Dr. Pinhas need not prove an effect on competition in the Los Angeles area to prevail, if the Sherman Act applies. But the question before us today is whether the Act does apply, and that must be answered by determining whether, in its practical economic consequences, the boycott substantially affects interstate commerce by restricting competition or, as in Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, 213 (1959), interrupts the flow of interstate commerce. The Court never comes to grips with that issue. Instead, because a group boycott, like a price-fixing scheme, would be (if the Sherman Act applies) a per se violation, the Court concludes that “the same analysis applies” to this exclusion of a single competitor from the Los Angeles market as was applied in McLain to the fixing of prices by all realtors in the Greater New Orleans market. See ante, at 331-332. It seems to me obvious that the two situations are not remotely comparable. The economic effects of a price-fixing scheme are felt throughout the market in which the prices are fixed; the economic effects of “black-balling” a single supplier are felt not throughout the market from which he is theoretically excluded, but, at most, within the subportion of that market in which he was, or could be, doing business. If, for example, the alleged conspirators in the present case had decided to effectuate the ultimate exclusion of Dr. Pinhas, i. e., to have him killed, it would be absurd to think that the world market in eye surgery would thereby be affected. It is undoubtedly true, in the present case, that Dr. Pinhas has been affected throughout the Los Angeles area; but it is rudimentary that the effect of a restraint of trade must be gauged according to its effect on “competition, not competitors,” Brown Shoe Co. v. United States, 370 U. S. 294, 320 (1962) (emphasis in original). See also, e. g., Associated General Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 539, n. 40 (1983); Fishman v. Estate of Wirtz, 807 F. 2d 520, 564-568 (CA7 1986) (Easterbrook, J., dissenting in part). The Court’s suggestion that competition in the entire Los Angeles market was affected by this one surgeon’s exclusion from that market simply ignores the “practical economics” of the matter.

II

In any case, it does not seem to me that a correct analysis of this case would treat it as involving a conspiracy to boycott a single physician. Such boycotts rarely exist in a vacuum; they are usually the means of enforcing compliance with larger anticompetitive schemes. H. Hovenkamp, Economics and Federal Antitrust Law 275-276 (1985); R. Posner, Antitrust Law 207 (1976). Cf. Radovich v. National Football League, 352 U. S. 445, 448-449 (1957) (describing blacklisting pursuant to conspiracy to monopolize professional football). Charitably read, respondent’s complaint alleges just such a scheme, namely, a scheme to fix prices for some of the eye surgery performed at Midway Hospital. Instead of simply agreeing to a supercompetitive price, Midway’s eye surgeons have, contrary to prevailing Los Angeles practice, allegedly “padded” the cost of certain varieties of eye surgery by requiring a useless second surgeon to be present. The so-called “sham contract” was an attempt to compensate the hyperproductive Dr. Pinhas for his participation in the scheme and the concomitant reduction in his output. When that failed, the conspirators eliminated him as a competitor by terminating his medical staff privileges through the peer review process. That termination was not the totality of the conspiracy, but merely the means used to enforce it—just as, in Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984), the elimination of the price-cutting Spray-Rite as a distributor of Monsanto’s products .(via termination and a boycott) was merely the means of enforcing the alleged price-fixing conspiracy between Monsanto and its other distributors. This case, like Monsanto, involves a “termination . . . pursuant to a conspiracy . . . to set. . . prices,” id., at 757-758 (emphasis added), and for purposes of determining Sherman Act jurisdiction, what counts is the impact of that entire price-fixing conspiracy.

Even when the conspiracy is viewed in this broader fashion, however, the scope of the market affected by it has nothing to do with the scope of Dr. Pinhas’ exclusion from practice. If this had been a naked price-fixing conspiracy, instead of the more subtle one that it is, no one would contend that it affected prices.throughout Los Angeles. Pursuant to standard antitrust analysis, the agreement itself would define the extent of the market. The market would be eye surgery at Midway (not “eye surgery in the city where Midway is located”), since the very existence of the agreement implies power over price in that defined market. FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411, 435, n. 18 (1990) (citing R. Bork, The Antitrust Paradox 269 (1978)). It is irrational to use a different analysis, and to assume the affected market to be all of Los Angeles, simply because this more subtle price-fixing conspiracy led (incidentally) to the exclusion of Dr. Pinhas not only from Midway but from all hospitals throughout the city.

There is simply no basis for assuming that this alleged conspiracy’s market power — and its consequent effect upon competition, as opposed to its effect upon Dr. Pinhas — extended throughout Los Angeles. It has not been alleged that the conspirators have perverted the peer review process in hospitals throughout the city; nor that the peer review process at Midway is the “gateway” to the Los Angeles market in the sense of being the only way (or even one of the few ways) to gain entry. To the contrary, it is acknowledged that every hospital in Los Angeles has its own peer review process, and the complaint itself asserts that, well before the offer of the “sham contract,” “nearly all” those hospitals had abolished the featherbedding practice that is the object of this conspiracy. These uncontested facts reveal the truly local nature of the restraint and preclude any inference that the conspiracy at issue here had (or could have) an effect on competition in the Los Angeles market. Cf. Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2, 31 (1984); Northern Pacific R. Co. v. United States, 356 U. S. 1, 6-7 (1958). Any allegations to the contrary (and there are none) would have to be dismissed as inconsistent with simple economics. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 593-595 (1986).

HH I — I I — I

In my view, the present case should be decided by applying to the price-fixing conspiracy at Midway Hospital the workable jurisdictional test that our cases had established before McLain confused things. On that basis, I would reverse the Court of Appeals’ judgment that respondent had stated a Sherman Act claim.

The complaint does not begin to suggest that the conspiracy at Midway could have even the most trivial effect on interstate commerce. Cf. Crane v. Intermountain Health Care, Inc., 637 F. 2d, at 725. It literally alleges nothing more than that Dr. Pinhas, the defendant physicians, Midway Hospital, and Summit Health, Ltd., are “engaged in interstate commerce.” Contrary to the Court’s (undocumented) suggestion, ante, at 327 and 329-330, there is no allegation that any out-of-state patients call upon the hospital for eye surgery (or anything else) — let alone a sufficient number that overcharging them would create a “substantial” effect on commerce among the several States. Respondent does not allege that out-of-state insurance companies or the Federal Government pays for the overcharges, cf. Goldfarb v. Virginia State Bar, 421 U. S. 773, 783 (1975); indeed, it appears on the face of the complaint that the Federal Government has stopped reimbursing featherbedded operations. He does not allege that eye surgery involves the use of implements or equipment purchased out of state, or that the restraint at issue here could have any appreciable effect on such purchases, cf. Hospital Building Co. v. Rex Hospital Trustees, 425 U. S., at 741, 744. Quite simply, the complaint is entirely devoid of any attempt to show a connection between the challenged restraint and “commerce among the several States.” Because “it is not sufficient merely to rely on identification of a relevant local activity and to presume an interrelationship with some unspecified aspect of interstate commerce,” McLain, 444 U. S., at 242, I would dismiss the complaint out of hand.

In point of fact, such a dismissal seems compelled by our decision in United States v. Oregon State Medical Society, 343 U. S. 326 (1952). There, the state medical society, eight county medical services, and eight individual physicians conspired to restrain the business of providing prepaid medical care by, inter alia, allocating territories to be served by doctor-sponsored plans. The District Court found that the conspiracy did not restrain interstate commerce. On direct appeal, the United States argued that the interstate activities of the private associations sufficed to show the requisite interstate effect. The Court rejected this argument, holding that, in order to prevail, the Government had to show that the restraint itself (the allocation of territories), had a substantial adverse effect on interstate commerce. Such an effect had not been proven, the Court observed, because the activities of the doctor-sponsored plans were “wholly intrastate,” id., at 338. It did not matter that the plans had made a few payments to out-of-state patients. Those payments were “few, sporadic, and incidental.” Id., at 339. A straightforward application of this same rationale compels reversal in the present case.

* * *

If it is true, as the complaint alleges, that one hospital will ordinarily not accord privileges to a doctor who has failed the peer review process elsewhere, it may well be that Dr. Pin-has has been the victim of a business tort affecting him throughout Los Angeles—or perhaps even nationwide. Cf. Hayden v. Bracy, 744 F. 2d, at 1343-1345 (various torts, in addition to Sherman Act violation, alleged to have arisen out of negative peer review). But the Sherman Act “does not purport to afford remedies for all torts committed by or against persons engaged in interstate commerce,” Hunt v. Crumboch, 325 U. S. 821, 826 (1945), unless those torts restrain commerce “among the several States.” The short of the matter is that Dr. Pinhas may well have a legitimate grievance, but it is not one redressed by the Sherman Act.

Disputes over the denial of hospital practice privileges are common, and most of the Circuits to which they have been presented as federal antitrust claims have rejected them on jurisdictional grounds. Furlong v. Long Island College Hospital, 710 F. 2d, at 925-926; Thompson v. Wise General Hospital, 707 F. Supp., at 854-856; Seglin v. Esau, 769 F. 2d, at 1283-1284; Hayden v. Bracy, 744 F. 2d, at 1342-1343. At least two other Circuits would reach that result on the particular complaint before us here. Cordova & Simonpietri Ins. Agency, Inc. v. Chase Manhattan Bank N. A., 649 F. 2d, at 45; Crane v. Intermountain Health Care, Inc., 637 F. 2d, at 725. I think it is a mistake to overturn this view. Federal courts are an attractive forum, and the treble damages of the Clayton Act an attractive remedy. We have today made them available for routine business torts, needlessly destroying a sensible statutory allocation of federal-state responsibility and contributing to the trivialization of the federal courts.

I respectfully dissent.

       Section 1 of the Sherman Act, 26 Stat. 209, as amended, provides in relevant part:
      “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U. S. C. § 1.

       Although the complaint alleged five claims, only the “Fourth Claim for Relief,” the antitrust claim, is before us now.
      The complaint also named as a defendant the California Board of Medical Quality Assurance (BMQA). The BMQA, however, was dismissed by stipulation. See 894 F. 2d, at 1027, n. 2.

       “One of the reasons for his success is the rapidity with which he, as distinguished from his competitors, can perform such surgeries. The speed with which such surgery can be completed benefits the patient because the exposure of cut eye tissue is drastically reduced. Some of Dr. Pinhas’ competitors regularly require, on the average, six times the length of surgical time to complete the same procedures as Dr. Pinhas.” App. 7.

       Respondent was notified, by a letter dated April 13, 1987, that such actions were the result of a “Medical Staff review of [his] medical records, with consideration as to the questions raised regarding: indications for surgery; appropriateness of surgical procedures in light of patient’s medical condition; adequacy of documentation in medical records; and ongoing pattern of identified problems.” Id., at 93.

       After the Governing Board of Midway affirmed the decision of the peer review committee, but imposed even more stringent conditions on respondent than the committee had imposed, respondent filed a petition for writ of mandate, pursuant to Cal. Civ. Proc. Code Ann. § 1094.5 (West Supp. 1991). 894 F. 2d 1024, 1027 (CA9 1989). On May 17, 1989, the Superior Court of California denied respondent’s request for further relief. App. to Pet. for Cert. A30-A35.

       Petitioners had already distributed the report, a Business and Professions Code 805 Report, to Cedars-Sinai Medical Center in Los Angeles, which then denied respondent medical staff privileges there. App. to Brief for Respondent a-3. Cedars-Sinai, like Midway, had refused to abolish the assistant surgeon requirement. App. 8.

      Act of July 2, 1890, oh. 647, § 1, 26 Stat. 209. The floor debates on the Sherman Act reveal, in Senator Sherman's words, an intent to "g[o] as far as the Constitution permits Congress to go . . . ." 20 Cong. Rec. 1167 (1889). For views of the enacting Congress toward the Sherman Act, see 21 Cong. Rec. 2456 (1890); see also United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 555-560 (1944); Apex Hosiery Co. v. Leader, 310 U. S. 469, 493, n. 15 (1940).

      The Court’s'decisions have long “permitted the reach of the Sherman Act to expand along with expanding notions of congressional power. See Gulf Oil Corp. v. Copp Paving Co., 419 U. S. [186,] 201-202 [(1974)].” Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 743, n. 2 (1976).

      See, e. g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 229-235 (1948).

      It is firmly settled that when Congress passed the Sherman Act, it “left no area of its constitutional power [over commerce] unoccupied.” United States v. Frankfort Distilleries, Inc., 324 U. S. 293, 298 (1945). Congress “meant to deal comprehensively and effectively with the evils resulting from contracts, combinations and conspiracies in restraint of trade, and to that end to exercise all the power it possessed.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 435 (1932).

       Cf. United States v. Staszcuk, 517 F. 2d 53, 60, n. 17 (CA7) (en banc) (“The federal power to protect the free market may be exercised'to punish conduct which threatens to impair competition even when no actual harm results”), cert. denied, 423 U. S. 837 (1975).

      See Health Care Quality Improvement Act of 1986, 100 Stat. 3784, 42 U. S. C. § 11101 et seq. The statute provides for immunity from antitrust, and other, actions if the peer review process proceeds in accordance with § 11112. Respondent alleges that the process did not conform with the requirements set forth in §, 11112, such as adequate notice, representation by an attorney, access to a transcript of the proceedings, and the right to cross-examine witnesses. According to the House sponsor of the bill, “[t]he immunity provisions [were] restricted so as not to protect illegitimate actions taken under the guise of furthering the quality of health care. Actions . . . that are really taken for anticompetitive purposes will not be protected under this bill." 132 Cong. Rec. 30766 (1986) (remarks of Rep. Waxman).

      Even so, I might note, it is improper for the Court to dispense with the necessary allegations to that effect. See McLain v. Real Estate Board of New Orleans, Inc., 444 U. S. 232, 242 (1980).


author: Justice Scalia

text:
    BRAXTON v. UNITED STATES
    No. 90-5358.
    Argued March 18, 1991
    Decided May 28, 1991

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

      Stephen J. Cribari argued the cause for petitioner. With him on the briefs were Fred Wan-en Bennett and Mary M. French.

      Stephen J. Marzen argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson.

   Justice Scalia

delivered the opinion of the Court.

At about 7 a.m. on June 10, 1988, four United States marshals arrived at Thomas Braxton’s door with a warrant for his arrest. One of the marshals, Deputy Jenkins, knocked. There was no answer, though they could hear someone inside. Thirty minutes later the officers returned with a key to Braxton’s apartment. Jenkins knocked again; and again received no answer. He unlocked the door, only to find it secured with a chain lock as well — which he broke by kicking the door open. “[Contemporaneous with the door opening, a gunshot was fired through the door opening. The gunshot lodged in the front door just above the doorknob. That’s the outside of the front door.” App. 17. The door slammed shut, and the officers withdrew. A moment later, Jenkins again kicked the door open. Another shot was fired, this too lodging in the front of the door, about five feet from the floor. The officers again withdrew, and the area was barricaded. Braxton, who had fired the shots, eventually gave himself up, and was charged in a three-count indictment with (1) an attempt to kill a deputy United States marshal (18 U. S. C. § 1114), (2) assault on a deputy marshal (§ 111), and (3) the use of a firearm during a crime of violence (§ 924(c)).

These were the facts as presented by the Government during the course of a plea hearing, pursuant to Rule 11(f) of the Federal Rules of Criminal Procedure, at which Braxton pleaded guilty to the assault and firearm counts of the indictment, and not guilty to the attempt to kill count. The pleas were not made pursuant to any plea agreement, and the Government did not dismiss the attempt to kill count at the plea hearing. The purpose of the hearing was simply to provide a factual basis for accepting Braxton's guilty pleas.

Braxton agreed with the facts as the Government characterized them, with two small caveats, neither of which is significant for purposes of this case. Subject to those "modifications," Braxton agreed that "what the Government say[s] that it could prove [happened] happened." App. 19. With this factual basis before it, the District Court accepted Braxton's guilty pleas, specifically noting that "there is no plea agreement." Ibid.

Two months later, Braxton was sentenced. Relying upon a proviso in § lB 1.2(a) of the United States Sentencing Commission Guidelines Manual (1990), and over Braxton's objections, the District Court in essence sentenced Braxton as though he had been convicted of attempted killing, the only charge to which Braxton had not confessed guilt. The Court of Appeals upheld the sentence, 903 F. 2d 292 (CA4 1990), and we granted certiorari. 498 U. 5. 966 (1990).

I

Ordinarily, a court pronouncing sentence under the Guidelines applies the "offense guideline section . . . most applicable to the offense of conviction." § 1B1.2(a). There is, however, one "limited" exception to this general rule, § lB 1.2, comment., n. 1, consisting of the following proviso to § 1B1.2(a):

"Provided, however, in the case of conviction by a plea of guilty or nob contendere containing a stipulation that specifically establishes a more serious offense than the offense of conviction, [the court shall apply the guideline in such chapter] most applicable to the stipulated offense."

Braxton's conviction was no doubt by a "plea of guilty." This case presents the ciuestions whether it was also a convic-n tion by a plea (1) “containing a stipulation” that (2) “specifically establishes” that Braxton attempted to kill the marshals who had been sent to arrest him. The Courts of Appeals have divided on the meaning of the first phrase, “containing a stipulation,” and Braxton argues that however that phrase is read, the court below misapplied the second, “specifically establishes a more serious offense.” We consider each contention in turn.

A

As the District Court noted, there was no plea agreement in this case. Braxton argues that his plea did not “contai[nJ” a stipulation because by “containing a stipulation,” the Guidelines mean a stipulation that is part of a formal plea agreement. Some Circuits to consider the question have agreed with that interpretation, believing that the “stipulation” must be part of the “quid pro quo” for the Government’s agreement not to charge a higher offense. See, e. g., United States v. McCall, 915 F. 2d 811, 816, n. 4 (CA2 1990); United States v. Warters, 885 F. 2d 1266, 1273, n. 5 (CA5 1989). But as the Government points out, § IB 1.2 does not by its terms limit its application to stipulations contained in plea agreements; the language speaks only of “plea[s] . . . containing a stipulation.” Since, the Government argues, any formal assent to a set of facts constitutes a stipulation, Braxton’s guilty plea “contain[ed] a stipulation” upon which the court could rely in setting his base-offense level. That was the approach of the court below.

A principal purpose for which we use our certiorari jurisdiction, and the reason we granted certiorari in the present case, is to resolve conflicts among the United States courts of appeals and state courts concerning the meaning of provisions of federal law. See this Court’s Rule 10.1. With respect to federal law apart from the Constitution, we are not the sole body that could eliminate such conflicts, at least as far as their continuation into the future is concerned. Obviously, Congress itself can eliminate a conflict concerning a statutory provision by making a clarifying amendment to the statute, and agencies can do the same with respect to regulations. Ordinarily, however, we regard the task as initially and primarily ours. Events that have transpired since our grant of certiorari in the present case have focused our attention on the fact that this may not be Congress’ intent with respect to the Sentencing Guidelines.

After we had granted Braxton’s petition for certiorari, the Commission requested public comment on whether § IB 1.2(a) should be “amended to provide expressly that such a stipulation must be as part of a formal plea agreement,” 56 Fed. Reg. 1891 (1991), which is the precise question raised by the first part of Braxton’s petition here. The Commission took this action pursuant to its statutory duty “periodically [to] review and revise” the Guidelines. 28 U. S. C. §994(o). The Guidelines are of course implemented by the courts, so in charging the Commission “periodically [to] review and revise” the Guidelines, Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest. This congressional expectation alone might induce us to be more restrained and circumspect in using our certiorari power as the primary means of resolving such conflicts; but there is even further indication that we ought to adopt that course. In addition to the duty to review and revise the Guidelines, Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U. S. C. §994(u). This power has been implemented in USSG § 1B1.10, which sets forth the amendments that justify sentence reduction.

We choose not to resolve the first question presented in the current case, because the Commission has already undertaken a proceeding that will eliminate circuit conflict over the meaning of § 1B1.2, and because the specific controversy before us can be decided on other grounds, as set forth below.

B

Unlike the first question discussed above, which presents a general issue of law on which the Circuits have fallen into disagreement, Braxton’s second question is closely tied to the facts of the present case. For the proviso in § lB1.2(a) to apply, there must be not simply a stipulation, but a stipulation that “specifically establishes” a more serious offense. Thus, even assuming that Braxton’s agreement to facts constituted a “stipulation” for purposes of § lB1.2(a), unless it “specifically established” an attempt to kill under 18 U. S. C. § 1114, the sentence based upon the Guideline for that offense cannot stand.

For Braxton to be guilty of an attempted killing under 18 U. S. C. § 1114, he must have taken a substantial step towards that crime, and must also have had the requisite mens rea. See E. Devitt, C. Blackmar, & M. Wolff, Federal Jury Practice and Instructions § 14.21 (1990 Supp.). A stipulation by Braxton that he shot “at a marshal,” without any qualification about his intent, would suffice to establish a substantial step towards the crime, and perhaps the necessary intent. The stipulation here, however, was not that Braxton shot “at a marshal.” As the Government appears to concede, Brief for United States 19, n. 10, citing United States v. Guerrero, 863 F. 2d 245, 248 (CA2 1988), the only stipulation relevant to our inquiry is (at most) that which occurred at the Rule 11(f) hearing, since § IB 1.2 refers not to a stipulation in isolation, but to “a plea . . . containing a stipulation.” (Emphasis added.) All Braxton agreed to at the Rule 11(f) hearing was that he shot “through the door opening [and that] [t]he gunshot lodged in the front door just above the doorknob. That [is] the outside of the front door.” App. 17.

The Court of Appeals affirmed the District Court’s judgment that this “specifically established” a violation of 18 U. S. C. § 1114, primarily because it believed that at least the District Court was not “clearly erroneous” in so concluding. That is, of course, the standard applied, when reviewing a sentence, to findings of fact. 18 U. S. C. § 3742(e). Determination of the meaning and effect of a stipulation, however, is not a factual finding: We review that just as we would review a determination of meaning and effect of a contract, or consent decree, or proffer for summary judgment. See, e. g., Washington Hospital v. White, 889 F. 2d 1294, 1299 (CA3 1989); Frost v. Davis, 346 F. 2d 82, 83 (CA5 1965). The question, therefore, is not whether there is any reasonable reading of the stipulation that supports the District Court’s determination, but whether the District Court was right.

We think it was not. The stipulation does not say that Braxton shot at the marshals; any such conclusion is an inference at best, and an inference from ambiguous facts. To give just one example of the ambiguity: The Government proffered (and Braxton agreed) that Braxton shot “through the door opening,” and that the bullet lodged in the “front [of the] door.” App. 17. It is difficult to understand how both of these facts could possibly be true, at least on an ordinary understanding of what constitutes a “door opening.” One does not shoot through a door opening and hit the door, any more than one walks through a door opening and bumps into the door. But in any case, if one accepts the stipulation that both shots lodged in the front of the (inward-opening) door, it would be unreasonable to conclude that Braxton was shooting at the marshals unless it was also stipulated that the marshals had entered the room. That was not stipulated, and does not appear to have been the fact. But even if one could properly conclude that the stipulation “specifically established” that Braxton had shot “at the marshals,” it would also have to have established that he did so with the intent of killing them. Not only is there nothing in the stipulation from which that could even be inferred, but the statements of Braxton’s attorney at the hearing flatly deny it.

“Of course, there is lurking in the background the allegation of an attempted murder. You can gather from Mr. Braxton’s position, and probably from [the Government’s] statement of facts, that Mr. Braxton admits he assaulted someone and used a handgun, but, obviously, is not admitting he attempted to specifically murder anyone.” Id., at 22.

Braxton claims to have intended to frighten the marshals, not shoot them, and that claim is certainly consistent with the stipulation before us.

We of course do not know what actually happened that morning in June, but that is not the question before us. The only issue for resolution is whether a stipulation that at best supports two reasonable readings — one that Braxton shot across the room at the marshals when they entered, and one that he shot across the room before they entered to frighten them off — is a stipulation that “specifically establishes” that Braxton attempted to murder one of the marshals. It does not.

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

      Since the statute does not specify the elements of “attempt to kill,” they are those required for an “attempt” at common law, see Morissette v. United States, 342 U. S. 246, 263 (1952), which include a specific intent to commit the unlawful act. “Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” 4 C. Torcia, Wharton’s Criminal Law §743, p. 572 (14th ed. 1981). See also R. Perkins & R. Boyce, Criminal Law 637 (3d ed. 1982); W. LaFave & A. Scott, Criminal Law 428-429 (1972).