author: JUSTICE BLACKMUN Justice Stevens,

text:
    STEVENS v. DEPARTMENT OF THE TREASURY et al.
    No. 89-1821.
    Argued March 19, 1991
    Decided April 24, 1991

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, O’Connor, Scalia, Kennedy, and Sou-PER, JJ., joined, and in all but Part IV of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 11.
    Alison Steiner argued the cause for petitioner. With her on the briefs were Michael Adelman and Donald B. Verrilli, Jr.
    Amy L. Wax argued the cause pro hac vice for respondents. With her on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Harriet S. Shapiro, Michael Jay Singer, and Donald R. Livingston.
   JUSTICE BLACKMUN

delivered the opinion of the Court.

This case concerns a claim of age discrimination said to be in violation of § 15 (the federal employees' component) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as added by the Fair Labor Standards Amendments of 1974, 88 Stat. 74, and amended, 29 U. S. C. § 633a.

I

Petitioner Charles Z. Stevens III is an employee of the United States Internal Revenue Service (Service). In August 1986, when he was 63 years of age, Stevens was accepted into the Service's Revenue Officer Training Program at Austin, Tex., and assumed probationary status as a civil service employee. On April 27, 1987, he was advised that his performance in the program was not satisfactory. He then requested a transfer out of the program and a demotion, rather than face separation from the Service. Believing that he had been the victim of age discrimination, Stevens on May 21 wrote his Congressman for assistance. See App. 8. That inquiry proved to be nonproductive.

In September 1987, petitioner attempted to invoke his agency's administrative procedure for resolving age discrimination complaints through an initial meeting with an Equal Employment Opportunity Counselor. This, however, was long after the expiration of the 30-day period prescribed for such an application by 29 CFR §§ 1613.511, 1613.512, and 1613.214(a)(1)(i) (1990). On October 19, petitioner filed a formal administrative complaint of age discrimination with the Department of the Treasury. App. 11. At the end of that complaint was the following statement: “This is also my notice of intention to sue in U. S. Civil District Court if the matter is not satisfactorily resolved.” Id., at 15. The complaint was rejected, it was said, because of the delay in seeking a meeting with the counselor and because there was no showing of good cause for not complying with the 30-day requirement. Id., at 16. This action was described by the Director of the Regional Complaints Center as “a final agency decision.” Id., at 19. On petitioner’s appeal to the Equal Employment Opportunity Commission (EEOC) Office of Review and Appeals, the rejection for untimeliness was affirmed on March 30, 1988. Id., at 20.

On May 3, 1988, petitioner filed pro se his complaint against the Department of the Treasury and its Secretary in the United States District Court for the Western District of Texas. Id., at 2. At an ensuing hearing, petitioner was represented by counsel. The defense moved to dismiss the action on the ground that petitioner had failed to establish any basis for tolling the 30-day period. Id., at 22. The District Court granted the motion and dismissed the case with prejudice. App. to Pet. for Cert. A-l. It noted: “[A]n employee who believes that he has been discriminated against because of age has two avenues of relief under the ADEA”: he either “may proceed directly to federal court and initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit,” id., at A-3, citing 29 U. S. C. §633a(d), or he “may file an administrative complaint with the employing federal agency and appeal an adverse finding to the” EEOC, in which case he “may bring a federal civil action only after exhausting his administrative remedies,” App. to Pet. for Cert. A-3, citing 29 U. S. C. §633a(b). The court reasoned that the alternative administrative procedure, which petitioner had attempted, had not properly been invoked because of the untimeliness of Stevens’ complaint and the absence of a satisfactory explanation for the delay. The court therefore concluded that it was “without jurisdiction” to apply the ADEA “to the circumstances of Stevens’ demotion in April, 1987.” App. to Pet. for Cert. A-3 to A-4.

Petitioner appealed to the United States Court of Appeals for the Fifth Circuit. In an unpublished per curiam opinion, that court disagreed with the District Court’s statement that the employee could go directly to federal court “no later than 180 days from the unlawful action.” It said that Stevens had to file a notice of intent to sue within 180 days of the allegedly discriminatory action but that he did not have to initiate his federal suit within that period. Id., at A-7. The court went on to say: “However, Stevens did not initiate the present action in federal court until May [3], 1988[;] therefore Stevens’ notice to the EEOC, of October 19, 1987 was not effective.” Ibid. The court concluded: “Although the district court did not state the applicable law correctly, ultimately the correct result was reached since Stevens failed to meet the requirements set forth in 29 U. S. C. 633a(d).” Id., at A-8. The District Court’s dismissal was affirmed. Judgt. order reported at 897 F. 2d 526 (1990).

We granted certiorari over respondents’ opposition because of what appeared to us to be a clear misreading by the lower courts of the applicable and important federal statute. 498 U. S. 957 (1990).

II

As the District Court noted in its opinion, App. to Pet. for Cert. A-3, § 15 of the ADEA provides two alternative routes for pursuing a claim of age discrimination. An individual may invoke the EEOC’s administrative process and then file a civil action in federal district court if he is not satisfied with his administrative remedies. See 29 U. S. C. §§633a(b) and (c). A federal employee complaining of age discrimination, however, does not have to seek relief from his employing agency or the EEOC at all. He can decide to present the merits of his claim to a federal court in the first instance. See §633a(d). Both routes to court are implicated in this case. We address the direct route first.

Section 15(d) of the Act, 29 U. S. C. § 633a(d), reads:

“When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days’ notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred.” (Emphasis added.)

The District Court obviously misread this statute when it said that the federal employee “may proceed directly to federal court and initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit.” App. to Pet. for Cert. A-3 (emphasis added). The court thus imposed a requirement that the federal court action be instituted within the 180-day period and an additional requirement that the EEOC be notified within 30 days prior to the commencement of the suit. But the statute reads otherwise as to both requirements. It calls for a notice of not less than 30 days to the Commission of an intent to sue (not notification within 30 days), and it provides that the notice shall be filed with the Commission within 180 days of the alleged unlawful practice (not filed within 180 days of the notice). Clearly, petitioner Stevens met both requirements. The EEOC was notified on October 19, 1987, the 176th day after the alleged discriminatory action — petitioner’s transfer and demotion of April 27, 1987 — had occurred. And suit was not filed until May 3, 1988, a date more than 30 days after the notice was given.

The Court of Appeals corrected one of the District Court’s two errors:

“Contrary to what the district court stated, Stevens had to file a notice of intent to sue with the EEOC within 180 days of the alleged discriminatory action. Stevens did not have to initiate his federal action within 180 days of the alleged action, but merely give notice to the EEOC of his intention to initiate a civil action.” Id., at A-7.

But the Court of Appeals then added the sentence already noted: “However, Stevens did not initiate the present action in federal court until May 4, 1988[;] therefore Stevens’ notice to the EEOC, of October 19, 1987 was not effective.” This enigmatic sentence surely implies, even if it does not say so directly, that the court was not in disagreement with the District. Court’s second error — that the federal litigation had to be commenced within 30 days of the notice, instead of after 30 days from the notice. We note, at this point, that the District Court’s and Court of Appeals’ error in their reading of the statute has also been replicated by two other courts. See Castro v. United States, 775 F. 2d 399, 403 (CA1 1985); McKinney v. Dole, 246 U. S. App. D. C. 376, 387, 765 F. 2d 1129, 1140 (1985). The applicable regulations are positive as to the absence of such a “within 30 days” requirement under the ADEA, in marked contrast with the situation concerning the assertion of a Title VII claim. See 29 CFR §1613.514 (1990). Respondents concede all this, for they say that “the statute is clear.” Brief for Respondents 29.

There is no foundation that we can discern for any conclusion that the suit was not filed within the applicable period of limitations. The statute does not expressly impose any additional limitations period for a complaint of age discrimination. We therefore assume, as we have before, that Congress intended to impose an appropriate period borrowed either from a state statute or from an analogous federal one. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 146-148 (1987). In this case, we need not decide which limitations period is applicable to a civil action under 29 U. S. C. §633a(c). Stevens filed his suit on May 3, 1988, only one year and six days after the allegedly discriminatory event of April 27, 1987. That, as respondents acknowledge, Brief for Respondents 30, “is well within whatever statute of limitations might apply to the action.”

HH WH

The Solicitor General, however, submits that the petition for certiorari should be dismissed as having been improvidently granted. Id., at 31. He rests this submission on the argument that petitioner did not properly present the merits of the timeliness issue to the Court of Appeals, and that this Court should not address that question for the first time. Id., at 8-9, 11-15. He made the same argument in his opposition to the petition for certiorari. Brief in Opposition 5-7. We rejected that argument in granting certiorari, and we reject it again now because the Court of Appeals, like the District Court before it, decided the substantive issue presented.

The District Court heard the case on the merits. Tr. 83-176. The Court of Appeals in its turn specifically referred to Stevens’ notice of intention to file a civil suit, App. to Pet. for Cert. A-7, and, as we have explained, answered the timeliness question incorrectly. We thus are satisfied that the issue is properly before us.

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Answering the timeliness question in petitioner s favor, as we have, brings us to an issue involving the administrative route to federal court. Once petitioner had filed an EEOC complaint, was he required to exhaust his administrative remedies in order to file a civil action in district court? The Court of Appeals expressly stated its Circuit rule on exhaustion just eight days after it issued the opinion below. In White v. Frank, 895 F. 2d 243, 244 (CA5), cert. denied, 498 U. S. 890 (1990), the court said: “[A]n ADEA plaintiff who chooses to appeal the employer’s determination to the Equal Employment Opportunity Commission . . . must await final action by that agency before filing an action in federal district court.” The exhaustion issue has divided the Circuits. Compare, e. g., Langford v. U. S. Army Corps of Engineers, 839 F. 2d 1192, 1194-1195 (CA6 1988), with Purtill v. Harris, 658 F. 2d 134, 138 (CA3 1981), cert. denied, 462 U. S. 1131 (1983).

Although the issue is an important one, it is here that we encounter procedural difficulty. Respondents in direct contradiction of their position before the Court of Appeals, now fully agree with petitioner on the merits of the exhaustion issue. According to the Solicitor General, a federal employee who elects agency review of an age discrimination claim need not exhaust his administrative remedies before bringing a civil action. Respondents have thus abandoned the position that they took before the Court of Appeals when, in their brief there, they said:

“If an employee files an administrative claim with his agency, the employee must properly exhaust his administrative remedies like employees alleging other types of discrimination ....
“It is well established that a federal employee must timely exhaust any administrative remedies available to him before he can bring suit .... Therefore, Judge Bunton properly dismissed Mr. Stevens’ cause of action because Mr. Stevens did not meet the administrative requirements.” Brief for Appellees in No. 89-1432 (CA5), pp. 6-7.

Respondents, of course, acknowledge this, Tr. of Oral Arg. 17, and concede that they indeed “took a different position,” id., at 22. They candidly say that “we have reconsidered our position.” Id., at 33.

It is all well and good for respondents to rethink their position. Their choice, however, has meant that on the merits there is no one before us who stands in a position adverse to petitioner. Neither is there anyone before us who defends the results reached in those décided cases where Courts of Appeals have found an exhaustion requirement when administrative relief is sought before a court action is instituted. See, e. g., McGinty v. United States Department of the Army, 900 F. 2d 1114 (CA7 1990); Castro v. United States, 775 F. 2d 399 (CA1 1985); Purtill v. Harris, supra. Those cases stand in conflict with the Sixth Circuit’s decision in Langford v. U. S. Army Corps of Engineers, supra.

In each of these cited cases, the United States put forward the exhaustion requirement. We must assume, in view of the Solicitor General’s concession here, that the Government no longer will defend its earlier litigation position.

Under these circumstances we are disinclined to rule on the merits of the exhaustion issue. We feel that our only proper course is to reverse the judgment of the Court of Appeals and to remand the case for further proceedings. On remand, the defense presumably (and it is a strong presumption) will submit to the Court of Appeals its altered positions — that there is no exhaustion issue at all in this case because petitioner did not institute his court action until after a final decision of the agency had been made — and, if that submission is not accepted by the court, that respondents now have withdrawn from the stance they took before the Court of Appeals on the merits. In either event, petitioner Stevens finally should gain his day in court and will not have all avei ues to relief completely blocked.

Meanwhile, to be sure, the rulings in McGinty, Castro, and Purtill, and any other ruling to the same effect will remain outstanding and in conflict with Langford. There is little or nothing, by way of disagreement or agreement with those cases, that this Court should do in the present litigation. The cases may be respectively challenged or supported by some future litigant in a way that will lead to a definitive resolution of the existing conflict in authority. If this does not come about, then, because of the Government’s change of mind and new position, any legal significance of the conflict may simply fade away with the passage of time.

Reversed and remanded.

Justice Stevens,

concurring in part and dissenting in part.

While I join the remainder of the Court’s opinion, I disagree with Part IV. In my view, the Government is quite right in its present position that the statute contains no requirement that a federal employee exhaust administrative remedies before instituting a court action. The case is not moot, because the Government’s position as petitioner’s employer is adverse to petitioner. The adversary posture that the Court finds lacking as to the exhaustion issue is equally lacking as to the issue that the Court does decide. Compare ante, at 9-10, with ante, at 7-8. Moreover, because 29 U. S. C. §633a, the statutory provision at issue, applies only to federal employees, the adversary posture the Court awaits will never arise unless the Government once again reverses its position.

The Court acknowledges that the exhaustion question is an important issue on which the lower courts are divided. See ante, at 9. The issue is also straightforward and capable of swift resolution. The Government in its argument before the Court of Appeals based its contention that exhaustion is required solely on an analogy to Title VII. See Brief for Appellees in No. 89-1432 (CA5), pp. 6-7. Unlike Title VII, however, the Age Discrimination in Employment Act (ADEA) contains no express requirement that a federal employee complainant seek administrative relief. There is therefore no basis from which to infer that a complainant who has voluntarily sought administrative relief must exhaust all administrative remedies before proceeding to court. The Equal Employment Opportunity Commission, charged with interpretation of the ADEA, does not read the statute to require exhaustion by federal employees. See 29 CFR §1613.513 (1990).

The only language of the ADEA relied on by those Courts of Appeals that have required exhaustion is the omission from § 633a of a provision like that in Title VII allowing an employee to abandon the administrative complaint route if there has been no administrative action within 180 days. This provision, however, is unnecessary in § 633a because, as I have explained, the ADEA contains no requirement for federal employees equivalent to Title VII’s command that a complainant first seek administrative relief.

I would therefore resolve the exhaustion issue as well as the timeliness question. To that extent, I respectfully dissent from the Court’s disposition.

       The EEOC accepts a notice given to the employing agency as sufficient compliance with the statutory notice requirement. See Management Directive EEO-MD 107, ch. 12, pp. 12-2 and 12-3 (1987).

       Indeed, when Stevens formally was advised of his right to sue, he was told: “[Y]ou MAY have up to six years after the right of action first accrued in which to file a civil action.” This was a reference to the general statute of limitations, 28 U. S. C. § 2401(a), for a civil action against the Government. See Brief for Respondents 30, n. 22.

      See Purtill v. Harris, 658 P. 2d 134, 138 (CA3 1981), cert. denied, 462 U. S. 1131 (1983); Castro v. United States, 775 F. 2d 399, 404 (CA1 1985); Rivera v. United States Postal Service, 830 F. 2d 1037, 1039 (CA9 1987), cert. denied, 486 U. S. 1009 (1988); Bornholdt v. Brady, 869 F. 2d 57, 63 (CA2 1989); White v. Frank, 895 F. 2d 243, 244 (CA5), cert. denied, 498 U. S. 890 (1990); McGinty v. United States Department of Army, 900 F. 2d 1114, 1117 (CA7 1990).


source: Caselaw Access Project

author: Per Curiam. Justice Marshall, Justice Stevens,

license: Public Domain

text:
    IN RE AMENDMENT TO RULE 39
    No.-.
    Decided April 29, 1991
   Per Curiam.

We are ordering an amendment to this Court’s Rule 39 respecting proceedings informa pauperis.

Filings under our paid docket require a not-insubstantial filing fee, currently $300, and compliance with our printing requirements. See Rules 33 and 38. These Rules serve as some disincentive to frivolous paid filings. Furthermore, we have the ability to exercise control over the paid docket under Rule 42.2, which provides for award of “just damages and single or double costs” in the case of a frivolous filing. See Hatch v. Reliance Ins. Co., 474 U. S. 1048 (1986); Hyde v. Van Wormer, 474 U. S. 992 (1985). These controls are not effective with reference to proceedings in forma pauperis.

It is vital that the right to file in forma pauperis not be encumbered by those who would abuse the integrity of our process by frivolous filings, particularly those few persons whose filings are repetitive with the obvious effect of burdening the office of the Clerk and other members of the Court staff. In order to preserve meaningful access to this Court’s resources, and to ensure the integrity of our processes, we find it necessary and advisable to promulgate this amendment to Rule 39, to provide us some control over frivolous or malicious in forma pauperis filings. Sanctions of damages and costs are ineffective to deter such filings as informa pau- peris status is conditioned on an affidavit or declaration that the petitioner is financially unable to pay fees or post security. See 28 U. S. C. § 1915(a) and this Court’s Rule 39.1. This amendment makes clear that to protect itself from abusive filings the Court may enter orders similar to those entered by the lower federal courts for almost 100 years pursuant to 28 U. S. C. §§ 1915(a) and (d), and their predecessors. See Act of July 20, 1892, ch. 209, §4, 27 Stat. 252.

The Rule applies only to those filings that the Court determines would be denied in any event and permits a disposition of the matter without the Court issuing an order granting leave to proceed informa pauperis.

Rule 39 of the Rules of the Supreme Court of the United States is amended to add the following:

“39.8 If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed informa pauperis.”

In order to ensure adequate notice to all litigants, the Rule will become effective on July 1, 1991.

It is so ordered.

Justice Marshall,

dissenting.

This Court’s rules now embrace an invidious distinction. Under the amendment adopted today, an indigent litigant may be denied a disposition on the merits of a petition for certiorari, jurisdictional statement, or petition for an extraordinary writ following a determination that the filing “is frivolous or malicious.” Strikingly absent from this Court’s rules is any similar provision permitting dismissal of “frivolous or malicious” filings by paying litigants, even though paying litigants are a substantial source of these filings.

This Court once had a great tradition: “All men and women are entitled to their day in Court.” That guarantee has now been conditioned on monetary worth. It now will read: “All men and women are entitled to their day in Court only if they have the means and the money.”

I dissent.

Justice Stevens,

with whom Justice Blackmun joins,

dissenting.

In my opinion it is neither necessary nor advisable to promulgate the foregoing amendment to Rule 39. During my years of service on the Court, I have not detected any significant burden on the Court, or threat to the integrity of its processes, caused by the filing of frivolous petitions. It is usually much easier to decide that a petition should be denied than to decide whether or not it is frivolous. Moreover, the cost of administering the amended Rule will probably exceed any tangible administrative saving. Transcending the clerical interest that supports the Rule is the symbolic interest in preserving equal access to the Court for both the rich and the poor. I believe the Court makes a serious mistake when it discounts the importance of that interest. I respectfully dissent.

      Our inviolable obligation to treat rich and poor alike is echoed in the oath taken by each Justice prior to assuming office. See, e. g., 389 U. S. ix:
      “I. . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Associate Justice of the Supreme Court of the United States according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.” (Emphasis added.)


author: Per Curiam. Justice Marshall,

text:
    IN RE DEMOS
    No. 90-7225.
    Decided April 29, 1991

      Together with No. 92-7226, Demos v. United States District Court for the Eastern District of Washington et al., on petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit, and No. 92-7296, In re Demos, on petition for writ of mandamus.

   Per Curiam.

Petitioner has filed a petition for a writ of certiorari, No. 90-7226, a petition for a writ of habeas corpus, No. 90-7225, and a petition for a writ of mandamus, No. 90-7296, all seeking relief from a single order of a lower court, which in turn denied petitioner leave to proceed in forma pauperis and barred petitioner from making further informa pauperis filings seeking certain extraordinary writs. We deny the petition for a writ of certiorari in No. 90-7226.

Petitioner has made 32 in forma pauperis filings in this Court since the beginning of the October 1988 Term, many of which challenge sanctions imposed by lower courts in response to petitioner’s frivolous filings. Petitioner’s method of seeking relief here — filing three petitions for relief from a single order of a lower court — could only be calculated to disrupt the orderly consideration of cases. Petitioner has abused the system, and we find it appropriate to deny leave to proceed in forma pauperis to petitioner in these two petitions for extraordinary relief, Nos. 90-7225 and 90-7296, and in all future petitions for extraordinary relief. See In re Sindram, 498 U. S. 177 (1991); In re McDonald, 489 U. S. 180 (1989).

If petitioner wishes to have one or both of these petitions considered on its merits, he must pay the docketing fee required by Rule 38(a) and submit a petition in compliance with Rule 33 of the Rules of this Court before May 20, 1991. The Clerk is directed not to accept any further petitions from petitioner for extraordinary writs unless he pays the docketing fee required by Rule 38(a) and submits his petition in compliance with Rule 33. Petitioner remains free under the present order to file in forma pauperis requests for relief other than an extraordinary writ, if he qualifies under this Court’s Rule 39 and does not similarly abuse that privilege.

It is so ordered.

Justice Marshall,

with whom Justice Blackmun and Justice Stevens join,

dissenting.

Today, this Court blacklists another indigent pro se litigant. The order issued today, which bars future in forma pauperis filings for extraordinary writs by John Demos and hints that restrictions on other filings by Demos might be forthcoming, marks the third such proscription the Court has initiated in the last two years. See In re Sindram, 498 U. S. 177 (1991); In re McDonald, 489 U. S. 180 (1989). Yet, as in Sindram and McDonald, the Court fails to identify any statute or rule giving it the extraordinary authority to impose a permanent ban on an indigent litigant’s in forma pauperis filings. Nor does the Court satisfactorily explain why it has singled out an indigent litigant for having lodged frivolous filings when paying litigants often are guilty of the same sin.

I continue to oppose this Court’s unseemly practice of banning informa pauperis filings by indigent litigants. See In re Sindram, supra, at 181 (Marshall, J., dissenting); In re McDonald, supra, at 185 (1989) (Brennan, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.). As I have argued, the Court’s assessment of the disruption that an overly energetic litigant like Demos poses to “the orderly consideration of cases,” ante, at 17, is greatly exaggerated. See In re Sindram, supra, at 181 (dissenting opinion). The Court is sorely mistaken if it believes that the solution to the problem of a crowded docket is to crack down on a litigant like Demos.

Two years ago, Justice Brennan sagely warned that in “needlessly departing] from its generous tradition” of leaving its doors open to all classes of litigants, the Court “sets sail on a journey whose landing point is uncertain.” In re McDonald, supra, at 188 (dissenting opinion). The journey’s ominous destination is becoming apparent. The Court appears resolved to close its doors to increasing numbers of indigent litigants — and for increasingly less justifiable reasons. I fear that the Court’s action today portends even more Draconian restrictions on the access of indigent litigants to this Court.

In closing its doors today to another indigent litigant, the Court moves ever closer to the day when it leaves an indigent litigant with a meritorious claim out in the cold. And with each barrier that it places in the way of indigent litigants, and with each instance in which it castigates such litigants for having “abused the system,” ante, at 17, the Court can only reinforce in the hearts and minds of our society’s less fortunate members the unsettling message that their pleas are not welcome here.

I dissent.

      Indeed, the ban the Court imposes on Demos’ in forma pauperis filings for extraordinary writs seems particularly unjustifiable. The Court makes much of the fact that Demos has made 32 in forma pauperis filings since 1988. Yet, according to the records of the Clerk of the Court, only four of those filings have been for extraordinary writs, the sole subject of the ban announced today. It cannot be seriously contended that these four filings in the last three yeax-s have so disrupted the oi’derly administration of this Coui't’s business as to require barring any such future filings. More likely, the Coui't’s ban on Demos’ in forma pauperis requests for extraordinary writs is but a pooi'ly disguised penalty for his more numei'ous petitions for cei’tioi'ari. See also In re Sindram, 498 U. S. 177, 183 (1991) (Blackmun, J., dissenting, joined by Marshall, J.) (noting that Court’s ban upon petitioner’s informa pauperis filings for extraordinary relief “appeal's to be nothing more than an alternative for punishing [petitioner] for the frequency with which he has filed petitions for certiorari and petitions for rehearing”).


author:
      Justice White
      Justice Stevens,

text:
    GILMER v. INTERSTATE/JOHNSON LANE CORP.
    No. 90-18.
    Argued January 14, 1991
    Decided May 13, 1991

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 36.

      John T. Allred argued the cause and filed a brief for petitioner.

      James B. Spears, Jr., argued the cause for respondent. With him on the brief was Robert S. Phifer.

      Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Robert L. Liebross; and for the American Federation of Labor and Congress of Industrial Organizations by Laurence Gold and Marsha S. Berzon.

      Briefs of amici curiae urging affirmance were filed for the Center for Public Resources, Inc., by Jay W. Waks; for the Chamber of Commerce of the United States of America by Peter G. Nash, Dixie L. Atwater, Michael J. Murphy, and Stephen A. Bokat; for the Equal Employment Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, Ann Elizabeth Reesman, and Donald L. Goldman; for the Lawyers’ Committee for Civil Rights Under Law by Alan E. Kraus, Nicholas deB. Katzenbach, Robert F. Mullen, David S. Tatel, Thomas J. Henderson, and Richard

        T. Seymour; and for the Securities Industry Association, Inc., by A. Robert Pietrzak and William J. Fitzpatrick.

   Justice White

delivered the opinion of the Court.

The question presented in this case is whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application. The Court of Appeals held that it could, 895 F. 2d 195 (CA4 1990), and we affirm.

I

Respondent Interstate/Johnson Lane Corporation (Interstate) hired petitioner Robert Gilmer as a Manager of Financial Services in May 1981. As required by his employment, Gilmer registered as a securities representative with several stock exchanges, including the New York Stock Exchange (NYSE). See App. 15-18. His registration application, entitled “Uniform Application for Securities Industry Registration or Transfer,” provided, among other things, that Gilmer “agree[d] to arbitrate any dispute, claim or controversy” arising between him and Interstate “that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register.” Id., at 18. Of relevance to this case, NYSE Rule 347 provides for arbitration of “[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative.” App. to Brief for Respondent 1.

Interstate terminated Gilmer’s employment in 1987, at which time Gilmer was 62 years of age. After first filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC), Gilmer subsequently brought suit in the United States District Court for the Western District of North Carolina, alleging that Interstate had discharged him because of his age, in violation of the ADEA. In response to Gilmer’s complaint, Interstate filed in the District Court a motion to compel arbitration of the ADEA claim. In its motion, Interstate relied upon the arbitration agreement in Gilmer’s registration application, as well as the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq. The District Court denied Interstate’s motion, based on this Court’s decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and because it concluded that “Congress intended to protect ADEA claimants from the waiver of a judicial forum.” App. 87. The United States Court of Appeals for the Fourth Circuit reversed, finding “nothing in the text, legislative history, or underlying purposes of the ADEA indicating a congressional intent to preclude enforcement of arbitration agreements.” 895 F. 2d, at 197. We granted certiorari, 498 U. S. 809 (1990), to resolve a conflict among the Courts of Appeals regarding the arbitrability of ADEA claims.

II

The FAA was originally enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. Its purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219-220, and n. 6 (1985); Scherk v. Alberto-Culver Co., 417 U. S. 506, 510, n. 4 (1974). Its primary substantive provision states that “[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. The FAA also provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, §3, and for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement, §4. These provisions manifest a “liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 24 (1983).

It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. Indeed, in recent years we have held enforceable arbitration agreements relating to claims arising under the Sherman Act, 15 U. S. C. §§1-7; § 10(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78j(b); the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. § 1961 et seq.; and § 12(2) of the Securities Act of 1933, 15 U. S. C. § 77l(2). See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U. S. 477 (1989). In these cases we recognized that “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi, 473 U. S., at 628.

Although all statutory claims may not be appropriate for arbitration, “[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Ibid. In this regard, we note that the burden is on Gilmer to show that Congress intended to preclude a waiver of a judicial forum for ADEA claims. See McMahon, 482 U. S., at 227. If such an intention exists, it will be discoverable in the text of the ADEA, its legislative history, or an “inherent conflict” between arbitration and the ADEA’s underlying purposes. See ibid. Throughout such an inquiry, it should be kept in mind that “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone, supra, at 24.

Ill

Gilmer concedes that nothing in the text of the ADEA or its legislative history explicitly precludes arbitration. He argues, however, that compulsory arbitration of ADEA claims pursuant to arbitration agreements would be inconsistent with the statutory framework and purposes of the ADEA. Like the Court of Appeals, we disagree.

A

Congress enacted the ADEA in 1967 “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. § 621(b). To achieve those goals, the ADEA, among other things, makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” § 623(a)(1). This proscription is enforced both by private suits and by the EEOC. In order for an aggrieved individual to bring suit under the ADEA, he or she must first file a charge with the EEOC and then wait at least 60 days. § 626(d). An individual’s right to sue is extinguished, however, if the EEOC institutes an action against the employer. § 626(c)(1). Before the EEOC can bring such an action, though, it must “attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.” §626(b); see also 29 CFR §1626.15 (1990).

As Gilmer contends, the ADEA is designed not only to address. individual grievances, but also to further important social policies. See, e. g., EEOC v. Wyoming, 460 U. S. 226, 231 (1983). We do not perceive any inherent inconsistency between those policies, however, and enforcing agreements to arbitrate age discrimination claims. It is true that arbitration focuses on specific disputes between the parties involved. The same can be said, however, of judicial resolution of claims. Both of these dispute resolution mechanisms nevertheless also can further broader social purposes. The Sherman Act, the Securities Exchange Act of 1934, RICO, and the Securities Act of 1933 all are designed to advance important public policies, but, as noted above, claims under those statutes are appropriate for arbitration. “{S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Mitsubishi, supra, at 637.

We also are unpersuaded by the argument that arbitration will undermine the role of the EEOC in enforcing the ADEA. An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action. Indeed, Gilmer filed a charge with the EEOC in this case. In any event, the EEOC’s role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA “from any source,” and it has independent authority to investigate age discrimination. See 29 CFR §§1626.4, 1626.13 (1990). Moreover, nothing in the ADEA indicates that Congress intended that the EEOC be involved in all employment disputes. Such disputes can be settled, for example, without any EEOC involvément. See, e. g., Coventry v. United States Steel Corp., 856 F. 2d 514, 522 (CA3 1988); Moore v. McGraw Edison Co., 804 F. 2d 1026, 1033 (CA8 1986); Runyan v. National Cash Register Corp., 787 F. 2d 1039, 1045 (CA6), cert. denied, 479 U. S. 850 (1986). Finally, the mere involvement of an administrative agency in the enforcement of a statute is not sufficient to preclude arbitration. For example, the Securities Exchange Commission is heavily involved in the enforcement of the Securities Exchange Act of 1934 and the Securities Act of 1933, but we have held that claims under both of those statutes may be subject to compulsory arbitration. See Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989). '

Gilmer also argues that compulsory arbitration is improper because it deprives claimants of the judicial forum provided for by the ADEA. Congress, however, did not explicitly preclude arbitration or other nonjudicial resolution of claims, even in its recent amendments to the ADEA. “[I]f Congress intended the substantive protection afforded [by the ADEA] to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” Mitsubishi, 473 U. S., at 628. Moreover, Gilmer’s argument ignores the ADEA’s flexible approach to resolution of claims. The EEOC, for example, is directed to pursue “informal methods of conciliation, conference, and persuasion,” 29 U. S. C. § 626(b), which suggests that out-of-court dispute resolution, such as arbitration, is consistent with the statutory scheme established by Congress. In addition, arbitration is consistent with Congress’ grant of concurrent jurisdiction over ADEA claims to state and federal courts, see 29 U. S. C. § 626(c)(1) (allowing suits to be brought “in any court of competent jurisdiction”), because arbitration agreements, “like the provision for concurrent jurisdiction, serve to advance the objective of allowing [claimants] a broader right to select the forum for resolving disputes, whether it be judicial or otherwise.” Rodriguez de Quijas, supra, at 483.

B

In arguing that arbitration is inconsistent with the ADEA, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “res[t] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas, supra, at 481. Consequently, we address these arguments only briefly.

Gilmer first speculates that arbitration panels will be biased. However, “[w]e decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious and impartial arbitrators.” Mitsubishi, supra, at 634. In any event, we note that the NYSE arbitration rules, which are applicable to the dispute in this case, provide protections against biased panels. The rules require, for example, that the parties be informed of the employment histories of the arbitrators, and that they be allowed to make further inquiries into the arbitrators’ backgrounds. See 2 CCH New York Stock Exchange Guide ¶2608, p. 4314 (Rule 608) (1991) (hereinafter 2 N. Y. S. E. Guide). In addition, each party is allowed one peremptory challenge and unlimited challenges for cause. Id., ¶2609, at 4315 (Rule 609). Moreover, the arbitrators are required to disclose “any circumstances which might preclude [them] from rendering an objective and impartial determination.” Id., ¶2610, at 4315 (Rule 610). The FAA also protects against bias, by providing that courts may overturn arbitration decisions “[w]here there was evident partiality or corruption in the arbitrators.” 9 U. S. C. § 10(b). There has been no showing in this case that those provisions are inadequate to guard against potential bias.

Gilmer also complains that the discovery allowed in arbitration is more limited than in the federal courts, which he contends will make it difficult to prove discrimination. It is unlikely, however, that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims. Moreover, there has been no showing in this case that the NYSE discovery provisions, which allow for document production, information requests, depositions, and subpoenas, see 2 N. Y. S. E. Guide.¶2619, pp. 4318-4320 (Rule 619); Securities and Exchange Commission Order Approving Proposed Rule Changes by New York Stock Exchange, Inc., Nat. Assn, of Securities Dealers, Inc., and the American Stock Exchange, Inc., Relating to the Arbitration Process and the Use of Predispute Arbitration Clauses, 54 Fed. Reg. 21144, 21149-21151 (1989), will prove insufficient to allow ADEA claimants such as Gilmer a fair opportunity to present their claims. Although those procedures might not be as extensive as in the federal courts, by agreeing to arbitrate, a party “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Mitsubishi, supra, at 628. Indeed, an important counterweight to the reduced discovery in NYSE arbitration is that arbitrators are not bound by the rules of evidence. See 2 N. Y. S. E. Guide ¶2620, p. 4320 (Rule 620).

A further alleged deficiency of arbitration is that arbitrators often will not issue written opinions, resulting, Gil-mer contends, in a lack of public knowledge of employers’ discriminatory policies, an inability to obtain effective appellate review, and a stifling of the development of the law. The NYSE rules, however, do require that all arbitration awards be in writing, and that the awards contain the names of the parties, a summary of the issues in controversy, and a description of the award issued. See id., 1fi[2627(a), (e), at 4321 (Rules 627(a), (e)). In addition, the award decisions are made available to the public. See id., ¶2627(f), at 4322 (Rule 627(f)). Furthermore, judicial decisions addressing ADEA claims will continue to be issued because it is unlikely that all or even most ADEA claimants will be subject to arbitration agreements. Finally, Gilmer's concerns apply equally to settlements of ADEA claims, which, as noted above, are clearly allowed.

It is also argued that arbitration procedures cannot adequately further the purposes of the ADEA because they do not provide for broad equitable relief and class actions. As the court below noted, however, arbitrators do have the power to fashion equitable relief. 895 F. 2d, at 199-200. Indeed, the NYSE rules applicable here do not restrict the types of relief an arbitrator may award, but merely refer to “damages and/or other relief.” 2 N. Y. S. E. Guide ¶2627(e), p. 4321 (Rule 627(e)). The NYSE rules also provide for collective proceedings. Id., ¶2612(d), at 4317 (Rule 612(d)). But “even if the arbitration could not go forward as a class action or class relief could not be granted by the arbitrator, the fact that the [ADEÁ] provides for the possibility of bringing a collective action does not mean that individual attempts at conciliation were intended to be barred.” Nicholson v. CPC Int’l Inc., 877 F. 2d 221, 241 (CA3 1989) (Becker, J., dissenting). Finally, it should be remembered that arbitration agreements will not preclude the EEOC from bringing actions seeking class-wide and equitable relief.

C

An additional reason advanced by Gilmer for refusing to enforce arbitration agreements relating to ADEA claims is his contention that there often will be unequal bargaining power between employers and employees. Mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context. Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we nevertheless held in Rodriguez de Quijas and McMahon that agreements to arbitrate in that context are enforceable. See 490 U. S., at 484; 482 U. S., at 230. As discussed above, the FAA’s purpose was to place arbitration agreements on the same footing as other contracts. Thus, arbitration agreements are enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. “Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’” Mitsubishi, 473 U. S., at 627. There is no indication in this case, however, that Gil-mer, an experienced businessman, was coerced or defrauded into agreeing to the arbitration clause in his registration application. As with the claimed procedural inadequacies discussed above, this claim of unequal bargaining power is best left for resolution in specific cases.

IV

In addition to the arguments discussed above, Gilmer vigorously asserts that our decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and its progeny—Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981), and McDonald v. West Branch, 466 U. S. 284 (1984) — preclude arbitration of employment discrimination claims. Gilmer’s reliance on these cases, however, is misplaced.

In Gardner-Denver, the issue was whether a discharged employee whose grievance had been arbitrated pursuant to an arbitration clause in- a collective-bargaining agreement was precluded from subsequently bringing a Title VII action based upon the conduct that was the subject of the grievance. In holding that the employee was not foreclosed from bringing the Title VII claim, we stressed that an employee’s contractual rights under a collective-bargaining agreement are distinct from the employee’s statutory Title VII rights:

“In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.” 415 U. S., at 49-50.

We also noted that a labor arbitrator has authority only to resolve questions of contractual rights. Id., at 53-54. The arbitrator’s “task is to effectuate the intent of the parties” and he or she does not have the “general authority to invoke public laws that conflict with the bargain between the parties.” Id., at 53. By contrast, “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Id., at 54. We further expressed concern that in collective-bargaining arbitration “the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit.” Id., at 58, n. 19.

Barrentine and McDonald similarly involved the issue whether arbitration under a collective-bargaining agreement precluded a subsequent statutory claim. In holding that the statutory claims there were not precluded, we noted, as in Gardner-Denver, the difference between contractual rights under a collective-bargaining agreement and individual statutory rights, the potential disparity in interests between a union and an employee, and the limited authority and power of labor arbitrators.

There are several important distinctions between the Gardner-Denver line of cases and the case before us. First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” Mitsubishi, 473 U. S., at 625. Therefore, those cases provide no basis for refusing to enforce Gilmer’s agreement to arbitrate his ADEA claim.

V

We conclude that Gilmer has not met his burden of showing that Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act. Accordingly, the judgment of the Court of Appeals is

Affirmed.

Justice Stevens,

with whom Justice Marshall joins, dissénting.

Section 1 of the Federal Arbitration Act (FAA) states:

“[NJothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9U. S. C. §1.

The Court today, in holding that the FAA compels enforcement of arbitration clauses even when claims of age discrimination are at issue, skirts the antecedent question whether the coverage of the Act even extends to arbitration clauses contained in employment contracts, regardless of the subject matter of the claim at issue. In my opinion, arbitration cláuses contained in employment agreements are specifically exempt from coverage of the FAA, and for that reason respondent Interstate/Johnson Lane Corporation cannot, pursuant to the FAA, compel petitioner to submit his claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq., to binding arbitration.

I

Petitioner did not, as the majority correctly notes, ante, at 25, n. 2, raise the issue of the applicability of the FAA to employment contracts at any stage of the proceedings below. Nor did petitioner raise the coverage issue in his petition for writ of certiorari, before this Court. It was amici who first raised the argument in their briefs in support of petitioner prior to oral argument of the case. See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae; Brief for American Association of Retired Persons as Amicus Curiae; Brief for Lawyers’ Committee for Civil Rights Under Law as Amicus Curiae 17-18.

Notwithstanding the apparent waiver of the issue below, I believe that the Court should reach the issue of the coverage of the FAA to employment disputes because resolution of the question is so clearly antecedent to disposition of this case. On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered “fairly subsumed” by the actual questions presented. See, e. g., Teague v. Lane, 489 U. S. 288, 300 (1989) (“The question of retroactivity with regard to petitioner’s fair cross section claim has been raised only in an amicus brief. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner’s Batson claim. Moreover, our sua sponte consideration of retroactivity is far from novel” (citations omitted)); Batson v. Kentucky, 476 U. S. 79, 84-85, n. 4 (1986) (notwithstanding petitioner’s seemingly deliberate failure to raise the equal protection issue, “[w]e agree with the State that resolution of petitioner’s claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner’s Sixth Amendment arguments”); Mapp v. Ohio, 367 U. S. 643, 646, n. 3 (1961) (“Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf”). See also R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice § 6.26 (6th ed. 1986) (describing rule concerning need for presenting questions below and in petition for certiorari, and deviations from rule).

Only this Term, the Court has on at least two occasions decided cases on grounds not argued in any of the courts below or in the petitions for certiorari. In Arcadia v. Ohio Power Co., 498 U. S. 73 (1990), we decided the case on an issue that not only was not raised below or in any of the papers in this Court, but that also was not raised at any point during oral argument before the Court. “In our view, however,” the decided question was “antecedent to these [issues presented] and ultimately dispositive of the present dispute.” Id., at 77. Similarly, in McCleskey v. Zant, 499 U. S. 467 (1991), the Court issued a decision on a question which the parties had not argued below and evidently had not anticipated would be at issue in this Court, “since respondent did not even mention Sykes or cause-and-prejudice in its brief or at oral argument, much less request the Court to adopt this standard.” Id., at 522-523 (Marshall, J., dissenting).

In my opinion the considerations in favor of reaching an issue not presented below or in the petition for certiorari are more compelling in this case than in the cited cases. Here the issue of the applicability of the FAA to employment contracts was adequately briefed and raised by the amici in support of petitioner. More important, however, is that respondent and its amici had full opportunity to brief and argue the same issue in opposition. See Brief for Respondent 42-50; Brief for Securities Industry Association, Inc., as Amicus Curiae 18-20; Brief for Equal Employment Advisory Council et al. as Amici Curiae 14-16. Moreover, the Court amply raised the issue with the parties at oral argument, at which both sides were on notice and fully prepared to argue the merits of the question. Finally, as in Arcadia, the issue whether the FAA even covers employment disputes is clearly “antecedent . . . and ultimately dispositive” of the question whether courts and respondent may rely on the FAA to compel petitioner to submit his ADEA claims to arbitration.

II

The Court, declining to reach the issue for the reason that petitioner never raised it below, nevertheless concludes that “it would be inappropriate to address the scope of the § 1 exclusion because the arbitration clause being enforced here is not contained in a contract of employment. . . . Rather, the arbitration clause at issue is in Gilmer’s securities registration application, which is a contract with the securities exchanges, not with Interstate.” Ante, at 25, n. 2. In my opinion the Court too narrowly construes the scope of the exclusion contained in § 1 of the FAA.

There is little dispute that the primary concern animating the FAA was the perceived need by the business community to overturn the common-law rule that denied specific enforcement of agreements to arbitrate in contracts between business entities. The Act was drafted by a committee of the American Bar Association (ABA), acting upon instructions from the ABA to consider and report upon “the further extension of the principle of commercial arbitration.” Report of the Forty-third Annual Meeting of the ABA, 45 A. B. A. Rep. 75 (1920). At the Senate Judiciary Subcommittee hearings on the proposed bill, the chairman of the ABA committee responsible for drafting the bill assured the Senators that the bill “is not intended [to] be an act referring to labor disputes, at all. It is purely an act to give the merchants the right or the privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it. Now that is all there is in this.” Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9 (1923). At the same hearing, Senator Walsh stated:

“The trouble about the matter is that a great many of these contracts that are entered into are really not [voluntary] things at all. Take an insurance policy; there is a blank in it. You can take that or you can leave it. The agent has no power at all to decide it. Either you can make that contract or you can not make any contract. It is the same with a good many contracts of employment. A man says, ‘These are our terms. All right, take it or leave it.’ Well, there is nothing for the man to do except to sign it; and then he surrenders his right to have his case tried by the court, and has to have it tried before a tribunal in which he has no confidence at all.” Ibid.

Given that the FAA specifically was intended to exclude arbitration agreements between employees and employers, I see no reason to limit this exclusion from coverage to arbitration clauses contained in agreements entitled “Contract of Employment.” In this case, the parties conceded at oral argument that Gilmer had no “contract of employment” as such with respondent. Gilmer was, however, required as a condition of his employment to become a registered representative of several stock exchanges, including the New York Stock Exchange (NYSE). Just because his agreement to arbitrate any “dispute, claim or controversy” with his employer that arose out of the employment relationship was contained in his application for registration before the NYSE rather than in a specific contract of employment with his employer, I do not think that Gilmer can be compelled pursuant to the FAA to arbitrate his employment-related dispute. Rather, in my opinion the exclusion in § 1 should be interpreted to cover any agreements by the employee to arbitrate disputes with the employer arising out of the employment relationship, particularly where such agreements to arbitrate are conditions of employment.

My reading of the scope of the exclusion contained in § 1 is supported by early judicial interpretations of the FAA. As of 1956, three Courts of Appeals had held that the FAA’s exclusion of “contracts of employment” referred not only to individual contracts of employment, but also to collective-bargaining agreements. See Lincoln Mills of Ala. v. Textile Workers Union of America, 230 F. 2d 81 (CA5 1956), rev’d, 353 U. S. 448 (1957); United Electrical, Radio & Machine Workers of America v. Miller Metal Products, Inc., 215 F. 2d 221 (CA4 1954); Amalgamated Assn, of Street, Electric R. and Motor Coach Employees of America v. Pennsylvania Greyhound Lines, Inc., 192 F. 2d 310 (CA3 1951). Indeed, the application of the FAA’s exclusionary clause to arbitration provisions in collective-bargaining agreements was one of the issues raised in the petition for certiorari and briefed at great length in Lincoln Mills and its companion cases, Goodall-Sanford, Inc. v. Textile Workers, 353 U. S. 550 (1957), and General Electric Co. v. Electrical Workers, 353 U. S. 547 (1957). Although the Court decided the enforceability of the arbitration provisions in the collective-bargaining agreements by reference to §301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185, it did not reject the Courts of Appeals’ holdings that the arbitration provisions would not otherwise be enforceable pursuant to the FAA since they were specifically excluded under § 1. In dissent, Justice Frankfurter perceived a

“rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collective-bargaining agreements in the silent treatment given that Act by the Court’s opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for ‘contracts of employment,’ were available, the Court would hardly spin such power out of the empty darkness of § 301. I would make this rejection explicit, recognizing that when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts.” Textile Workers v. Lincoln Mills, 353 U. S., at 466.

H-i HH I — I

Not only would I find that the FAA does not apply to employment-related disputes between employers and employees in general, but also I would hold that compulsory arbitration conflicts with the congressional purpose animating the ADEA, in particular. As this Court previously has noted, authorizing the courts to issue broad injunctive relief is the cornerstone to eliminating discrimination in society. Albemarle Paper Co. v. Moody, 422 U. S. 405, 415 (1975). The ADEA, like Title VII of the Civil Rights Act of 1964, authorizes courts to award broad, class-based injunctive relief to achieve the purposes of the Act. 29 U. S. C. § 626(b). Because commercial arbitration is typically limited to a specific dispute between the particular parties and because the available remedies in arbitral forums generally do not provide for class-wide injunctive relief, see Shell, ERISA and Other Federal Employment Statutes: When is Commercial Arbitration an “Adequate Substitute” for the Courts?, 68 Texas L. Rev. 509, 568 (1990), I would conclude that an essential purpose of the ADEA is frustrated by compulsory arbitration of employment discrimination claims. Moreover, as Chief Justice Burger explained:

“Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts. For federal courts to defer to arbitral decisions reached by the same combination of forces that had long perpetuated invidious discrimination would have made the foxes guardians of the chickens.” Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 750 (1981) (dissenting opinion).

In my opinion the same concerns expressed by Chief Justice Burger with regard to compulsory arbitration of Title VII claims may be said of claims arising under the ADEA. The Court’s holding today clearly eviscerates the important role played by an independent judiciary in eradicating employment discrimination.

> J — I

When the FAA was passed in 1925, I doubt that any legislator who voted for it expected it to apply to statutory claims, to form contracts between parties of unequal bargaining power, or to the arbitration of disputes arising out of the employment relationship. In recent years, however, the Court “has effectively rewritten the statute,” and abandoned its earlier view that statutory claims were not appropriate subjects for arbitration. See Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 646-651 (1985) (Stevens, J., dissenting). Although I remain persuaded that it erred in doing so, the Court has also put to one side any concern about the inequality of bargaining power between an entire industry, on the one hand, and an individual customer or employee, on the other. See ante, at 32-33. Until today, however, the Court has not read § 2 of the FAA as broadly encompassing disputes arising out of the employment relationship. I believe this additional extension of the FAA is erroneous. Accordingly, I respectfully dissent.

      Compare the decision below with Nicholson v. CPC Int’l Inc., 877 F. 2d 221 (CA3 1989).

       Section 1 of the FAA provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U. S. C. § 1. Several amici curiae in support of Gilmer argue that that section excludes from the coverage of the FAA all “contracts of employment.” Gilmer, however, did not raise the issue in the courts below; it was not addressed there; and it was not among the questions presented in the petition for certiorari. In any event, it would be inappropriate to address the scope of the § 1 exclusion because the arbitration clause being enforced here is not contained in a contract of employment. The FAA requires that the arbitration clause being enforced be in writing. See 9 U. S. C. §§2, 3. The record before us does not show, and the parties do not contend, that Gilmer’s employment agreement with Interstate contained a written arbitration clause. Rather, the arbitration clause at issue is in Gilmer’s securities registration application, which is a contract with the securities exchanges, not with Interstate. The lower courts addressing the issue uniformly have concluded that the exclusionary clause in § 1 of the FAA is inapplicable to arbitration clauses contained in such registration applications. See, e. g., Dickstein v. DuPont, 443 F. 2d 783 (CA1 1971); Malison v. Prudential-Bache Securities, Inc., 654 F. Supp. 101, 104 (WDNC 1987); Legg, Mason & Co. v. Mackall & Coe, Inc., 351 F. Supp. 1367 (DC 1972); Tonetti v. Shirley, 219 Cal. Rptr. 616, 618, 173 Cal. App. 3d 1144 (1985); see also Stokes v. Merrill Lynch, Pierce, Fenner & Smith, 523 F. 2d 433, 436 (CA6 1975). We implicitly assumed as much in Perry v. Thomas, 482 U. S. 483 (1987), where we held that the FAA required a former employee of a securities firm to arbitrate his statutory wage claim against his former employer, pursuant to an arbitration clause in his registration application. Unlike the dissent, see post, at 38-41, we choose to follow the plain language of the FAA and the weight of authority, and we therefore hold that § l’s exclusionary clause does not apply to Gil-mer’s arbitration agreement. Consequently, we leave for another day the issue raised by amici curiae.

       In the recently enacted Older Woi’kers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 978. Congress amended the ADEA to provide that “[a]n individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary.” See §201. Congress also specified certain conditions that must be met in order for a waiver to be knowing and voluntary. Ibid.

       Gilmer also contends that judicial review of arbitration decisions is too limited. We have stated, however, that “although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute” at issue. Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 232 (1987).

      The Court in Alexander v. Gardner-Denver Co. also expressed the view that arbitration was inferior to the judicial process for resolving statutory claims. 415 U. S., at 57-58. That “mistrust of the arbitral process,” how'ever, has been undermined by our recent arbitration decisions. McMahon, 482 U. S., at 231-232. “[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of ar-bitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626-627 (1985).

      See Perry v. Thomas, 482 U. S. 483, 493 (1987) (Stevens, J., dissenting); id., at 494 (O’ConnoR, J., dissenting); Southland Corp. v. Keating, 465 U. S. 1, 36 (1984) (O’Connor, J., dissenting) (“[Tjoday’s exercise in judicial revisionism goes too far”).

      See Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 252-253 (1987) (Blackmun, J., concurring in part and dissenting in part); id., at 268 (Stevens, J., concurring in part and dissenting in part); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 486 (1989) (Stevens, J., dissenting).