author: Justice Souter Justice White,

text:
    UNITED STATES DEPARTMENT OF ENERGY v. OHIO et al.
    No. 90-1341.
    Argued December 3, 1991
    Decided April 21, 1992

      Souter, J., delivered the opinion for a unanimous Court with respect to Part II-C, and the opinion of the. Court with respect to Parts I, II-A, II-B, and III, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. White,. J., filed an opinion concurring in part and dissenting in part, in which Blackmun and Stevens, JJ., joined, post, p. 629.

      James A. Feldman argued the cause for petitioner in No. 90-1341 and respondent in No. 90-1517. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, and Jacques B. Gelin.

      Jack A. Van Kley, Assistant Attorney General of Ohio, argued the cause for respondents in No. 90-1341 and petitioners in No. 90-1517. With him on the brief were Lee Fisher, Attorney General, and Timothy J. Kern and Terrence S. Finn, Assistant Attorneys General.

      Together with No. 90-1517, Ohio et al. v. United States Department of Energy, also on certiorari to the same court.

      Briefs of amici curiae were filed for the State of California et al. by Gale A. Norton, Attorney General of Colorado, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Martha E. Rudolph, Cynthia M. Vagelos, and Mary Capdeville, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Theodora Berger and R. H. Connett, Senior Assistant Attorneys General, Edwin F. Lowry, Deputy Attorney General, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Paige Murphy-Young, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, Richard Blumenthal, Attorney General of Connecticut, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Frederic J. Cowan, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, Dennis J. Harnish, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth,. Attorney General of North Dakota, T. Travis Medlock, Attorney General of South Carolina, Charles W. Burson, Attorney General of Tennessee, Michael D. Pearigen, Deputy Attorney General, Dan Morales, Attorney General of Texas, Thomas Edwards, Assistant Attorney General, Paul Van Dam, Attorney General of Utah, Denise Chancellor, Assistant Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Patrick O’Hare, Senior Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, James K. Phar-ris, Senior Assistant Attorney General, and Jay J. Manning, Assistant Attorney General; for the Natural Resources Defense Council by Philip F. W. Ahrens III; and for the National Governors’ Association et al. by Richard Ruda, Donald B. Verrilli, Jr., and Barry Levenstam.

      Federal- and state-law fines differ both as to their amounts and the sovereign that gets them, state-law fines going to the State, and federal-law fines going to the federal treasury. Ohio’s state-law fines are currently lower than their federal-law counterparts. See generally Tr. of Oral Arg. 36-37, 49-52; see also Brief for Respondent Ohio 36. The parties have agreed that if DOE is liable for both federal- and state-law fines it will be assessed only for the latter. See Stipulation Between DOE and Ohio, ¶¶2.1, 3.1, App. 87, 89, 90. '

   Justice Souter

delivered the opinion of the Court.

The question in these cases is whether Congress has waived the National Government’s sovereign immunity from liability for civil fines imposed by a State for past violations of the Clean Water Act (CWA), 86 Stat. 816, as amended, 38 U. S. C. § 1251 et seq., or the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2796, as amended, 42 U. S. C. § 6901 et seq. We hold it has not done so in either instance.

I

The CWA prohibits the discharge of pollutants into navigable waters without a permit. Section 402, codified at 33 U. S. C. § 1342, gives primary authority to issue such permits to the United States Environmental Protection Agency (EPA), but allows EPA to authorize a State to supplant the federal permit program with one of its own, if the state scheme would include, among other features, sufficiently stringent regulatory standards and adequate provisions for penalties to enforce them. See generally 33 U. S. C. § 1342(b) (requirements and procedures for EPA approval of state water-pollution permit plans); see also 40 CFR §§ 123.1-123.64 (1991) (detailed requirements for state plans). RCRA regulates the disposal of hazardous waste in much the same way, with a permit program run by EPA but subject to displacement by an adequate state counterpart. See generally 42 U. S. C. § 6926 (requirements and procedures for EPA approval of state hazardous-waste disposal permit plans); see also 40 CFR §§271.1-271.138 (1991) (detailed requirements for state plans).

This litigation began in 1986 when respondent State of Ohio sued petitioner Department of Energy (DOE) in Federal District Court for violations of state and federal pollution laws, including the CWA and RCRA, in operating its uranium-processing plant in Fernald, Ohio. Ohio sought, among other forms of relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. See, e. g., Complaint ¶ 64 (seeking penalties for violations of state law and of regulations issued pursuant to RCRA); id., ¶ 115 (seeking penalties for violations of state law and of CWA). Before the District Court ruled on DOE’s motion for dismissal, the parties proposed a consent decree to settle all but one substantive claim, and Ohio withdrew all outstanding claims for relief except its request for civil penalties for DOE’s alleged past violations. See Consent Decree Between DOE and Ohio, App. 63. By a contemporaneous stipulation, DOE and Ohio agreed on,.the. amount of civil penalties DOE will owe if it is found liable for them, see Stipulation Between DOE and Ohio, id., at 87. The parties thus left for determination under the motion to dismiss only the issue we consider today: whether Congress has waived the National Government’s sovereign immunity from liability for civil fines imposed for past failure to comply with the CWA, RCRA, or state law supplanting the federal regulation.

DOE admits that the CWA and RCRA obligate a federal polluter, like any other, to obtain permits from EPA or the state permitting agency, see Brief for Petitioner DOE 24 (discussing CWA); id., at 34-40 (discussing RCRA). DOE also concedes that the CWA and RCRA render federal agencies liable for fines imposed to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively, which we will speak of hereafter as “coercive fines.” See id., at 19-20, and n. 10; see also n. 14, infra. The parties disagree only on whether the CWA and RCRA, in either their “federal-facilities” or “citizen-suit” sections, waive federal sovereign immunity from liability for fines, which we will refer to as “punitive,” imposed to punish past violations of those statutes or state laws supplanting them.

The United States District Court for the Southern District of Ohio held that both statutes waived federal sovereign immunity from punitive fines, by both their federal-facilities and citizen-suit sections. 689 F. Supp. 760 (1988). A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed in part, holding that Congress had waived immunity from punitive fines in the CWA’s federal-facilities section and RCRA’s citizen-suit section, but not in RCRA’s federal-facilities section. 904 F. 2d 1058 (1990). Judge Guy dissented, concluding that neither the CWA’s federal-facilities section nor RCRA’s citizen-suit section sufficed to provide the waiver at issue. Id., at 1065-1069.

In No. 90-1341, DOE petitioned for review insofar as the Sixth' Circuit found any waiver of immunity from punitive fines, while in No. 90-1517, Ohio cross-petitioned on the holding that RCRA’s federal-facilities section failed to effect such a waiver. We consolidated the two petitions and granted certiorari, 500 U. S. 951 (1991).

I — I

We start with a common rule, with which we presume congressional familiarity, see McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991), that any waiver of the National Government’s sovereign immunity must be unequivocal, see United States v. Mitchell, 445 U. S. 535, 538-539 (1980). “Waivers of immunity must be ‘construed strictly in favor of the sovereign,’ McMahon v. United States, 342 U. S. 25, 27 (1951), and not ‘enlarge[d]... beyond what the language requires.’ Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927).” Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983). By these lights we examine first the two statutes’ citizen-suit sections, which can be treated together because their relevant provisions are similar, then the CWA’s federal-facilities section, and, finally, the corresponding section of RCRA.

A

So far as it concerns us, the CWA’s citizen-suit section reads that

“any citizen may commence a civil action on his own behalf—
“(1) against any person (including . . . the United States . . .) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation ....
“The district courts shall have jurisdiction ... to enforce such an effluent standard or limitation, or such an order ... as the case may be, and to apply any appropriate civil penalties under [33 U. S. C. § 1319(d)].” 33 U. S. C. § 1365(a).

The relevant part of the corresponding section of RCRA is similar:

“[A]ny person may commence a civil action on his own behalf —
“(1)(A) against any person (including . . . the United States) . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter .. .
“(B) against any person, including the United States . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment....
“. . . The district court shall have jurisdiction ... to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both,. . . and to apply any appropriate civil penalties under [42 U. S. C. §§ 6928(a) and (g)].” 42 U.S. C. § 6972(a).

A State is a “citizen” under the CWA and a “person” under RCRA, and is thus entitled to sue under these provisions.

Ohio and its amici argue that by specifying the United States as an entity subject to suit and incorporating the civil-penalties sections of the CWA and RCRA into their respective citizen-suit sections, “Congress could not avoid noticing that its literal language subjected] federal entities to penalties.” Brief for Respondent Ohio 36; see also, e. g., Brief for National Governors’ Association et al. as Amici Curiae 14-16. It is undisputed that each civil-penalties provision authorizes fines of the punitive sort.

The effect of incorporating each statute’s civil-penalties section into its respective citizen-suit section is not, however, as clear as Ohio claims. The incorporations must be read as encompassing all the terms of the penalty provisions, including their limitations, see, e. g., Engel v. Davenport, 271 U. S. 33, 38 (1926) (adoption of earlier statute by reference “makes it as much a part of the later act as though it had been incorporated at full length”); see also 2B N. Singer, Sutherland on Statutory Construction §51.08 (5th rev. ed. 1992), and significant limitations for present purposes result from restricting the applicability of the civil-penalties sections to “person[sJ.” While both the CWA and RCRA define “person” to cover States, subdivisions of States, municipalities, and interstate bodies (and RCRA even extends the term to cover governmental corporations), neither statute defines “person” to include the United States. Its omission has to be seen as a pointed one when so many other governmental entities are specified, see 2A Singer, supra, §47.23, a fact that renders the civil-penalties sections inapplicable to the United States.

Against this reasoning, Ohio argues that the incorporated penalty provisions’ exclusion of the United States is overridden by the National Government’s express inclusion as a “person” by each of the citizen-suit sections. There is, of course, a plausibility to the argument. Whether that plausibility suffices for the clarity required to waive sovereign immunity is, nonetheless, an issue we need not decide, for the force of Ohio’s argument wanes when we look beyond the citizen-suit sections to the full texts of the respective statutes.

What we find elsewhere in each statute are various provisions specially defining “person” and doing so expressly for purposes of the entire section in which the term occurs. Thus, for example, “[f]or the purpose of this [CWA] section,” 33 U. S. C. § 1321(a)(7) defines “person” in such a way as to exclude the various governmental entities included in the general definition of “person” in 33 U. S. C. § 1362(5). Again, “[f]or the purpose of this section,” § 1322(a)(8) defines “person” so as to exclude “an individual .on board a public vessel” as well as the governmental entities falling within the general definition. Similarly in RCRA, “[f]or the purpose of. . . subchapter [IX]” the general definition of “person” is expanded to include “the United States Government,” among other entities. 42 U. S. C. §6991(6). Within each statute, then, there is a contrast between drafting that merely redefines “person” when it occurs within a particular clause or sentence and drafting that expressly alters the definition for any and all purposes of the entire section in which the special definition occurs. Such differences in treatment within a given statutory text are reasonably understood to reflect differences in meaning intended, see 2A Singer, supra, §46.06, and the inference can only be that a special definition not described as being for purposes of the “section” or “subchapter” in which it occurs was intended to have the more limited application to its own clause or sentence alone. Thus, in the instances before us here, the inclusion of the United States as a “person” must go to the clauses subjecting the United States to suit, but no further.

This textual analysis passes the test of giving effect to all the language of the citizen-suit sections. Those sections’ incorporations of their respective statutes’ civil-penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to court by a citizen, while the sections’ explicit authorizations for suits against the United States will likewise be effective, since those sections concededly authorize coercive sanctions against the National Government.

A clear and unequivocal waiver of anything more cannot be found; a broader waiver may not be inferred, see Ruckels- haus, 463 U. S., at 685-686. Ohio’s reading is therefore to be rejected. See United States v. Nordic Village, Inc., ante, 37.

B

The relevant portion of the CWA’s federal-facilities section provides that

“[e]ach department, agency, or instrumentality of the . . . Federal Government . . . shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner ... as any nongovernmental entity .... The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. . . . [T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court.” 33 U. S. C. § 1323(a).

Ohio rests its argument for waiver as to punitive fines on-two propositions: first, that the statute’s use of the'word “sanction” must be understood to encompass such fines, see Brief for Respondent Ohio 26-29; and, second, with respect to the fines authorized under a state permit program approved by EPA, that they “aris[e] under Federal law” despite their genesis in state statutes, and are thus within the scope of the “civil penalties” covered by the congressional waiver, id., at 29-35.

■ A

Ohio’s first proposition is mistaken. As a general matter, the meaning of “sanction” is spacious enough to cover not only what we have called punitive fines, but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended. One of the two dictionaries Ohio itself cites reflects this breadth. See Black’s Law Dictionary 1341 (6th ed. 1990) (defining “sanction” as a “[p]enalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations. That part of a law which is designed to secure enforcement by imposing a penalty for its violation or offering a reward for its observance”). Ohio’s other such source explicitly adopts the coercive sense of the term. See Ballentine’s Law Dictionary 1137 (3d ed. 1969) (defining sanction in part as “[a] coercive measure”).

Beyond the dictionaries, examples of usage in the coercive sense abound. See, e. g., Penfield Co. of Cal. v. SEC, 330 U. S. 585, 590 (1947) (fines and imprisonment imposed as “coercive sanctions” when imposed to compel target “to do what the law made it his duty to do”); Hicks v. Feiock, 485 U. S. 624, 633-634, n. 6 (1988) (“sanction” in Penfield was civil because it was conditional; contemnor could avoid “sanction” by agreeing to comply with discovery order); Fed. Rule Civ. Proc. 37(b) (describing as “sanctions” various steps district court may take in response to noncompliance with discovery orders, including holding recalcitrant deponent in contempt); United States v. Westinghouse Elec. Corp., 648 F. 2d 642, 649 (CA9 1981) (discussing “sanctions,” imposed pursuant to Fed. Rule Civ. Proc. 37(b), consisting of fine for each day litigant remained in noncompliance with District Court’s discovery order); Latrobe Steel Co. v. United Steelworkers of America, Local 1537, 545 F. 2d 1336, 1344 (CA3 1976) (“Coercive sanctions ... look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order or by assuring that a potentially contumacious party adheres to an injunction by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience”); Vincent v. Preiser, 175 W. Va. 797, 803, 338 S. E. 2d 398, 403 (1985) (discussing contempt “sanctions” imposed “to compel compliance with a court order”); Maltaman v. State Bar of Cal., 43 Cal. 3d 924, 936, 741 P. 2d 185, 189-190 (1987) (describing as “sanctions” daily fine imposed on party until it complied with order directing it to transfer certain property); Labor Relations Comm’n v. Fall River Educators’ Assn., 382 Mass. 465, 475-476, 416 N. E. 2d 1340, 1347 (1981) (affirming propriety of imposition of “coercive contempt sanction”); Cal. Civ. Proc. Code Ann. § 2023(b)(4) (West Supp. 1992) (authorizing, in response to litigant’s failure to obey discovery order, “terminating sanction^],” including “contempt sanction^] ” and orders staying further proceedings by recalcitrant litigant). Cf. 42 U. S. C. §6992e(a) (waiving federal medical-waste disposal facilities’ sovereign immunity from various requirements, including such “sanctions as may be imposed by a court to enforce [injunctive] relief”); id., §6961 (using same language to waive other federal facilities’ immunity from RCRA provisions). Thus, resort to a “sanction” carries no necessary implication of the punitive as against the coercive.

The term’s context, of course, may supply a clarity that the term lacks in isolation, see, e. g., Shell Oil Co. v. Iowa Dept. of Revenue, 488 U. S. 19, 26 (1988). It tends to do so here, but once again the clarity so found cuts against Ohio’s position. The word “sanction” appears twice in § 1323(a), each time within the phrase “process and sanction[s].” The first sentence subjects Government agencies to “process and sanctions,” while the second explains that the Government’s corresponding liability extends to “any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.”

Three features of this context are significant. The first is the separate statutory recognition of three manifestations of governmental power to which the United States is subjected: substantive and procedural requirements; administrative authority; and “process and sanctions,” whether “enforced” in courts or otherwise. Substantive requirements are thus distinguished from judicial process, even though each might require the same conduct, as when a statute requires and a court orders a polluter to refrain from discharging without a permit. The second noteworthy feature is the conjunction of “sanction[s]” not with the substantive “requirements,” but with “process,” in each of the two instances in which “sanction” appears. “Process” normally refers to the procedure and mechanics of adjudication and the enforcement of decrees or orders that the adjudicatory process finally provides. The third feature to note is the statute’s reference to “process and sanctions” as “enforced” in courts or otherwise. Whereas we commonly understand that “requirements” may be enforced 'either by backward-looking penalties for past violations or by the “process” of forward-looking orders enjoining future violations, such forward-looking orders themselves are characteristically given teeth by equity’s traditional coercive sanctions for contempt: fines and bodily commitment imposed pending compliance or agreement to comply. The very fact, then, that the text speaks of sanctions in the context of enforcing “process” as distinct from substantive “requirements” is a good reason to infer that Congress was using “sanction” in its coercive sense, to the exclusion of punitive fines.

2

The last relevant passage of § 1323(a), which provides that “the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court,” is not to the contrary. While this proviso is unlike the preceding text in that it speaks of “civil penalties,” not “sanctions,” it is obviously phrased to clarify or limit the waiver preceding it. Here our concern is with its clarifying function (leaving its limiting effect until later), and it must be said that as a clarifier the proviso speaks with an uncertain voice. To be sure, the second modifier of “civil penalties” at least makes it plain that the term (like “sanction,” to which it relates) must include a coercive penalty, since “civil penalties” are exemplified by those “imposed by a State or local court to enforce an order or the process of such court.” To this extent, then, the proviso serves to confirm the reading we reached above.

The role of the first modifier is problematical, however. On the one hand, it tugs toward a more expansive reading of “civil penalties.” If by using the phrase “civil penalties arising under Federal law” Congress meant nothing more than coercive fines arising under federal law, it would have been simpler to describe all such penalties as imposed to enforce an order or process, whether of a local, state, or federal court. Thus, the first modifier suggests that the civil penalties arising under federal law may indeed include the punitive along with the coercive. Nevertheless, a reading expansive enough to reflect a waiver as to punitive fines would raise a new and troublesome question about the source of legal authority to impose such a fine. As far as federal law is concerned, the only available source of authority to impose punitive fines is the civil-penalties section, § 1319(d). But, as we have already seen, that section does not authorize liability against the United States, since it applies only against “persons,” from whom the United States is excluded.

Ohio urges us to find a source of authority good against the United States by reading “arising under Federal law” to include penalties prescribed by state statutes approved by EPA and supplanting the CWA. Ohio argues for treating a state statute as providing penalties “arising under Federal law” by stressing the complementary relationship between the relevant state and federal statutes and the role of such state statutes in accomplishing the purpose of the CWA. This purpose, as Ohio states it, is “to encourage compliance with comprehensive, federally approved water pollution programs while shielding federal agencies from unauthorized penalties.” Brief for Respondent Ohio 34-35. Ohio asserts that “federal facility compliance . . . cannot be . . . accomplished without the [punitive] penalty deterrent.” Id., at 35.

The case for such pessimism is not, however, self-evident. To be sure, an agency of the Government may break the law where it might have complied voluntarily if it had faced the prospect of punitive fines for past violations. But to say that its “compliance cannot be . . . accomplished” without such fines is to assume that without sanctions for past conduct a federal polluter can never be brought into future compliance, that an agency of the National Government would defy an injunction backed by coercive fines and even a threat of personal commitment. The position seems also to ignore the fact that once such fines start running they can be every dollar as onerous as their punitive counterparts; it could be a very expensive mistake to plan on ignoring the law indefinitely on the assumption that contumacy would be cheap.

Nor does the complementary relationship between state and federal law support Ohio’s claim that state-law fines thereby “arise under Federal law.” Plain language aside, the far more compelling interpretative case rests on the best known statutory use of the phrase “arising under federal law,” appearing in the grant of federal-question jurisdiction to the courts of the United States. See 28 U. S. C. § 1331. There, we have read the phrase “arising under” federal law to exclude cases in which the plaintiff relies on state law, even when the State’s exercise of power in the particular circumstances is expressly permitted by federal law. See, e. g., Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 116 (1936) (suit over state taxation of nationally chartered bank does not arise under federal law even though such taxation would not be possible without federal approval); International Bridge Co. v. New York, 254 U. S. 126, 133 (1920) (congressional approval of construction of bridge by state-chartered company does not make federal law the source of right to build bridge). Congress’ use of the same language in § 1323(a) indicates a likely adoption of our prior interpretation of that language. See, e. g., ICC v. Locomotive Engineers, 482 U. S. 270, 284-285 (1987) (interpreting statute based on previous interpretation of same language in another statute); Northcross v. Memphis Bd. of Education, 412 U. S. 427, 428 (1973) (per curiam) (similarity of language in two statutes “strong indication that [they] should be interpreted pari passu”). The probability is. enough to answer Ohio’s argument that “arising under Federal law” in § 1323(a) is broad enough to cover provisions of state statutes approved by a federal agency but nevertheless applicable ex proprio vigore.

Since Ohio’s argument for treating state-penalty provisions as arising under federal law thus fails, our reading of the last-quoted sentence from § 1323(a) leaves us with an unanswered question and an unresolved tension between closely related statutory provisions. The question is still what Congress could have meant in using a seemingly expansive phrase like “civil penalties arising under Federal law.” Perhaps it used it just in case some later amendment might waive the Government’s immunity from punitive sanctions . Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless. The question has no satisfactory answer.

We do, however, have a response satisfactory for sovereign immunity purposes to the tension between a proviso suggesting an apparently expansive but uncertain waiver and its antecedent text that evinces a narrower waiver with greater clarity. For under our rules that tension is resolved by the requirement that any statement of waiver be unequivocal: as against the clear waiver for coercive fines the indication of a waiver as to those that are punitive is less certain. The rule of narrow construction therefore takes the waiver no further than the coercive variety.

C

We consider, finally, the federal-facilities section of RCRA, which provides, in relevant part, that the National Government

“shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief) ... in the same manner, and to the same extent, as any person is subject to such requirements- Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.” 42 U.S. C. §6961.

Ohio and its amici stress the statutory subjection of federal facilities to “all . . . requirements,” which they would have us read as an explicit and unambiguous waiver of federal sovereign immunity from punitive fines. We, however, agree with the Tenth Circuit that “all... requirements” “can reasonably be interpreted as including substantive standards and the means for implementing those standards, but excluding punitive measures.” Mitzelfelt v. Department of Air Force, 903 F. 2d 1293, 1295 (1990).

We have already observed that substantive requirements can be enforced either punitively or coercively, and the Tenth Circuit’s understanding that Congress intended the latter finds strong support in the textual indications of the kinds of requirements meant to bind the Government. Significantly, all of them refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it). In stark contrast, the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an enforcement mechanism that could deplete the federal fisc regardless of a responsible officer’s willingness and capacity to comply in the future.

The drafters’ silence on the subject of punitive sanctions becomes virtually audible after one reads the provision’s final sentence, waiving immunity “from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.” The fact that the drafters’ only specific reference to an enforcement mechanism described “sanction” as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from “requirements” somehow unquestionably extends to punitive fines that are never so much as mentioned.

III

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

It is so ordered.

Justice White,

with whom Justice Blackmun and Justice Stevens join, concurring in part and dissenting in part.

These cases concern a uranium-processing plant which, the Government concedes, has “contaminated the soil, air and surface waters” of Fernald, Ohio, with radioactive materials, “exceeded certain of the effluent limitations set forth” in its water pollution permit, and “failed to construct portions of the water pollution control facilities in accordance” with the permit. Answer ¶¶ 28, 33.

The situation at the Fernald plant is not an aberration. The Department of Energy (DOE) estimates that taxpayers may pay $40 to $70 billion during the next 20 years to clean up or contain the contamination at its facilities. Federal facilities fail to comply with the Clean Water Act (CWA), 33 U. S. C. § 1251 et seq., twice as frequently as private industry. And the compliance rate of the Departments of Defense and Energy with the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U. S. C. § 6901 et seq., is 10 to 15 percent lower than that of private industry.

In an effort to compel Government agencies to adhere to the environmental laws under which private industry must operate, Congress waived sovereign immunity for civil penalties in the federal facilities and citizen suit provisions of the CWA, 33 U. S. C. §§ 1323, 1365(a), and in the citizen suit provision of the RCRA, 42 U. S. C. § 6972(a). Today, the majority thwarts this effort by adopting “an unduly restrictive interpretation” of both statutes and writing the waivers out of existence. Canadian Aviator, Ltd. v. United States, 324 U. S. 215, 222 (1945); Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U. S. 273, 287 (1983). In so doing, the majority ignores the “unequivocally expressed” intention of Congress, United States v. Nordic Village, Inc., ante, at 33; United States v. Mitchell, 445 U. S. 535, 538 (1980), and deprives the States of a powerful weapon in combating federal agencies that persist in despoiling the environment.

I

It is axiomatic that a statute should be read as a whole. 2A N. Singer, Sutherland on Statutory Construction §46.05 (5th ed. 1992). When the federal facilities and citizen suit provisions of the CWA are so read, the conclusion becomes inescapable that Congress intended to waive sovereign immunity for civil penalties under the statute.

The federal facilities provision, 33 U. S. C. § 1323(a), see ante, at 620, both establishes the Government’s duty to comply with the substantive and procedural requirements of the CWA and explicitly waives immunity for civil penalties. The first part of the federal facilities provision states that the Federal Government is subject to “any process and sanction,” regardless of the court in which it is enforced.

The majority devotes three pages of its opinion to a tortured discussion of whether subjecting the Government to “process and sanction” encompasses liability for civil penalties. See ante, at 621-623. Rather than engaging in these analytic gymnastics, the Court needed to do nothing more than read the rest of the federal facilities provision. It clearly states:

“[T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court.” 33 U. S. C. § 1323(a).

Obviously, Congress intended the United States to be liable for civil penalties. The plain language of the statute says so. Therefore, the broad term “sanctions” used earlier in the same subsection must include these penalties. Any other reading would contravene the “ancient and sound rule of construction that each word in a statute should, if possible, be given effect.” Crandon v. United States, 494 U. S. 152, 171 (1990) (Scalia, J., concurring in judgment); Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U. S. 237, 249 (1985); Colautti v. Franklin, 439 U. S. 379, 392 (1979).

The question, then, is not whether Congress has waived federal immunity for civil penalties. The waiver here unambiguously reached those claims for civil penalties “arising under” federal law. The critical inquiry is under what circumstances civil penalties arise under federal law.

A

Ohio contends that it is entitled to recover civil penalties on two different claims: the first brought under the CWA itself, through its citizen suit provision, 33 U. S. C. § 1365(a), and the second under the Ohio water pollution laws that arise under the CWA’s distinctive mechanism allowing States to administer CWA enforcement within their own boundaries. Ohio Rev. Code Ann. §6111.09 (Supp. 1987). I agree that the waiver of immunity covers both types of claims.

1

First, the CWA waives sovereign immunity for civil penalty claims brought under the Act’s citizen suit clause. 33 U. S. C. § 1365(a). See ante, at 615-616. That section unambiguously provides authority to sue “any person (including . . . the United States . . .)” and to recover “any appropriate civil penalties” under the civil penalties clause of the CWA enforcement provision, § 1319(d). It is impossible to fathom a clearer statement that the United States may be sued and found liable for civil penalties. The enforcement provision lists those violations that may be subject to a civil penalty, sets a ceiling on the size of the penalty, and lists factors that the court should consider in determining the amount of a penalty. Ibid.

Nevertheless, the majority concludes that this straightforward approach is not sufficient to waive immunity. The Court latches onto the fact that the enforcement provision does not include its own definition of “person” and that the CWA’s general purpose definition of the word “person” does not include the United States. § 1362(5). Again, there is a short answer to this claim. The statute says, in plain English, that its general definitions apply “[ejxcept as otherwise specifically provided.” § 1362. The citizen suit provision is one of the exceptions to the general rule; it states that any person, as used in that subdivision, includes the United States. § 1365(a). Certainly this special definition applies to the civil penalty enforcement provisions it incorporates.

To conclude otherwise is to resort to “ingenuity to create ambiguity” that simply does not exist in this statute. Rothschild v. United States, 179 U. S. 463, 465 (1900).

2

The CWA also waives immunity for civil penalties arising under state laws enacted to allow local administration of the CWA permit program. The majority rejects this proposition by relying on cases in which the Court has held that state laws approved by the Federal Government do not “arise under” federal law. See ante, at 625-626. But these cases are inapposite because the CWA regime goes far beyond simple federal approval of state action. Instead, the Act establishes a distinctive variety of cooperative federalism.

As we recently explained: “The Clean Water Act anticipates a partnership between the States and the Federal Government . . . .” Arkansas v. Oklahoma, ante, at 101. To effectuate this partnership, the CWA authorizes the Environmental Protection Agency (EPA) to issue pollution discharge permits, 33 U. S. C. § 1342, but provides that a State may “administer” its own permit system if it complies with detailed statutory and regulatory requirements. 33 U. S. C. § 1342(b); 40 CFR §§ 123.1-123.64 (1991). A State that seeks to “administer” a permitting program is required to adopt a system of civil penalties. 33 U. S. C. § 1342(b)(7). Federal regulations establish the minimum size of the penalties and mandate how, and when, they must be imposed. 40 CFR §§ 123.27(a)(3)(i), 123.27(b)(1), 123.27(c) (1991).

Even when a State obtains approval to administer its permitting system, the Federal Government maintains an extraordinary level of involvement. EPA reviews state water quality standards. 33 U. S. C. § 1313(c). It retains authority to object to the issuance of particular permits, § 1342(d)(2), to monitor the state program for continuing compliance with federal directives, § 1342(c), and even to enforce the terms of state permits when the State has not instituted enforcement proceedings, § 1319(a).

Under this unusual statutory structure, compliance with a state-administered permit is deemed compliance with the CWA. §1342(k). Indeed, in EPA v. Oklahoma, decided together with Arkansas v. Oklahoma, the EPA asserted that “the showing necessary to determine under the CWA whether there is compliance with any particular state [pollution] standard is itself a matter of federal, not state, law.” Brief for Petitioner, O. T. 1991, No. 90-1266, p. 18, n. 21 (emphasis added). Cf. Arkansas v. Oklahoma, ante, at 110 (recognizing the “federal character” of state pollution standards in interstate pollution controversy). This conclusion is not surprising, since the citizen suit provision of the CWA authorizes any citizen to sue under federal law for a “violation of... an order issued by ... a State with respect to [any effluent] standard or limitation . . . .” 33 U. S. C. § 1365(a).

Given the structure of the CWA, it is apparent that the “arising under” limitation on the waiver of sovereign immunity was not intended to protect the Federal Government from exposure to penalties under state laws that merely provide for the administration of a CWA permit system. Instead, the limitation shields the Government from liability under state laws that have not been subject to initial EPA review and ongoing agency supervision. Only by resorting to “an unduly restrictive interpretation” of the CWA and focusing on the “arising under” language in isolation can the majority reach a contrary result. Canadian Aviator, 324 U. S., at 222.

B

Because of its determination to find that civil penalties are not available against the Government, the majority paints itself into a corner. The Court acknowledges that its distortion of the statute leaves the phrase “civil penalties arising under Federal law” devoid of meaning. See ante, at 626-627. But rather than reading the CWA as Congress wrote it and recognizing that it effects a waiver of immunity, the majority engages in speculation about why Congress could not have meant what it unambiguously said:

“Perhaps it used [civil penalties arising under federal law] just in case some later amendment might waive the Government’s immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless.” Ibid.

It is one thing to insist on an unequivocal waiver of sovereign immunity. It is quite another “to impute to Congress a desire for incoherence” as a basis for rejecting an explicit waiver. Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381, 394 (1939); Franchise Tax Bd. of California v. Postal Service, 467 U. S. 512, 524 (1984). Cf. Canadian Aviator, supra, at 225. That is what the majority does today. “Surely the interest in requiring the Congress to draft its legislation with greater clarity or precision does not justify a refusal to make a good-faith effort to ascertain the actual meaning of the message it tried to convey in a statutory provision that is already on the books.” Nordic Village, ante, at 45 (Stevens, J., dissenting).

The unambiguous language of the federal facilities and citizen suit provisions of the CWA clearly contemplate a waiver of immunity as to suit for civil damages, and “once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to ‘assume the authority to narrow the waiver that Congress intended.’ ” Ardestani v. INS, 502 U. S. 129, 137 (1991), quoting United States v. Kubrick, 444 U. S. 111, 118 (1979); Irwin v. Department of Veterans Affairs, 498 U. S. 89, 94 (1990).

I — I I — I

Turning to the RCRA, I agree with the majority and with the Court of Appeals that the RCRA federal facilities provision does not effect an unambiguous waiver of immunity from civil penalties, 42 U. S. C. § 6961. See ante, at 627-628. The section makes no reference to civil penalties and, instead, waives immunity for “any such injunctive relief.” This language comports with the Government’s claim that the waiver is intended to reach only coercive and not punitive sanctions. The provision certainly does not unequivocally encompass civil penalties. Therefore, I join Part II-C of the Court’s opinion.

However, I would find a waiver under RCRA’s citizen suit provision, 42 U. S. C. § 6972(a), see ante, at 616, which is very similar to the citizen suit provision in the CWA, for the reasons I have explained above. See Part I-A-l, supra.

► — i h-i HH

The job of this Court is to determine what a statute says, not whether it could have been drafted more artfully. In these cases, the federal facilities and citizen suit provisions of the CWA and the citizen suit provision of the RCRA unambiguously waive the Federal Government’s immunity from civil penalties. That is all the law requires.

       The parties agreed to stay one claim pending completion of a technical study. See Stipulation Between DOE and Ohio, App. 87-88.

       DOE's water-pollution permit was issued by EPA. See Complaint ¶ 29. DOE had no RCRA permit at the time Ohio commenced this suit, despite RCRA’s requirement that facilities such as DOE’s Fernald plant obtain one. See Complaint ¶¶ 50, 52, 57; Answer of Federal Defendants ¶ 57.

       33 U. S. C. § 1323(a) (CWA); 42 U. S. C. §6961 (RCRA). The federal-facilities sections of the CWA and RCRA govern the extent to which federally operated facilities, such as DOE’s Fernald facility, are subject to the requirements, including fines, of both their respective statutes and EPA-approved, state-law regulation and enforcement programs.

       33 U. S. C. § 1365(a) (CWA); 42 U. S. C. § 6972(a) (RCRA). The citizen-suit sections of the CWA and RCRA authorize private enforcement of the provisions of their respective statutes. Unlike the waivers in the federal-facilities sections, which set forth the scope of federal sovereign immunity from the requirements, including fines, of both their respective statutes and EPA-approved, state-law regulation and enforcement programs, the citizen-suit sections, to the extent they waive federal immunity at all, waive such immunity only from federal-law penalties.
      States may sue the United States under the citizen-suit sections. See 33 U. S. C. § 1365(a) (any “citizen” may bring citizen suit under CWA); id., § 1365(g) (defining “citizen” for purposes of CWA citizen-suit section as “person . . . having an interest which is or may be adversely affected”); id., § 1362(5) (defining “person” for purposes of CWA to include a State); 42 U. S. C. § 6972 (“any person” may bring citizen suit under RCRA); id., § 6903(15) (“person” for purposes- of RCRA includes a State).

       The court held that its ruling on the CWA’s federal-facilities section obviated any need to consider that statute’s citizen-suit section. 904 F. 2d, at 1062.

       Ohio’s petition also asked that if we reversed the' lower court’s conclusion on the CWA’s federal-facilities section, we consider whether that statute’s citizen-suit section contained a waiver, an issue the Sixth Circuit declined to reach.

       The Sixth Circuit’s holding that the CWA’s federal-facilities section waives federal sovereign immunity from punitive fines conflicts with the Ninth Circuit’s conclusion that that section does not constitute such a waiver. See California v. Department of Navy, 845 F. 2d 222 (1988). One Court of Appeals has found such a waiver in the CWA’s citizen-suit section. See Sierra Club v. Lujan, 931 F. 2d 1421 (CA10 1991). Two other Courts of Appeals agree with the Sixth Circuit that RCRA’s federal-facilities section does not waive federal sovereign immunity from punitive fines. See Mitzelfelt v. Department of Air Force, 903 F. 2d 1293 (CA10 1990); United States v. Washington, 872 F. 2d 874 (CA9 1989). No other Court of Appeals appears to have considered whether RCRA’s citizen-suit section constitutes such a waiver.

       See n. 6, supra.

       See 33 U. S. C. § 1319(d) (CWA civil-penalties section); 42 U. S. C. §§ 6928(a), (g) (RCRA civil-penalties sections).

       See 33 U. S. C. § 1362(5) (defining “person” for purposes of CWA as “an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body”); 42 U. S. C. § 6903(15) (defining “person” for purposes of RCRA as “an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any. interstate body”).

       A subsection of RCRA dealing'with a federal demonstration program tracking the disposal of medical waste does in fact require that “each department, agency, and instrumentality of the United States” “be treated as” a “person.” See Medical Waste Tracking Act of 1988, §2(a), Pub. L. 100-582, 102 Stat. 2955, 42 U. S. C. §6992e(b). This broader provision, however, applies only “[f]or purposes of this Act,” ibid., which refers to the Medical Waste Tracking Act of 1988 itself, see 102 Stat. 2950.

       See n. 11, supra.

       The dissent fails to appreciate this difference, arguing that § 1365(a) “states that any person, as used in that subdivision, includes the United States,” post, at 633. That statement is simply incorrect; the citizen-suit section does no more than include the United States in the class of entities that may be the subject of a suit brought under this section. In stark contrast to the examples we have given, see n. 12, supra, § 1365(a) does not purport to apply the more expansive definition of “person” throughout the subsection; by its terms it speaks only to the first mention of “person.”

       DOE explicitly concedes that such relief is available against the United States in the context of citizen suits pursuant to the CWA, see Brief for Petitioner DOE 33, and implicitly so concedes with regard to RCRA, see id., at 40-41. DOE also concedes that both statutes’ federal-facilities sections authorize imposition of injunctive-type relief against the National Government, see id., at 19-20, and n. 10; see also id., at 35. DOE concedes federal liability to such penalties without reference to the civil-penalties sections of the CWA or RCRA.

       Of course, the phrase “arising under” federal law appears in Article III, § 2, of the Constitution, where it has received a broader construction than in its statutory counterpart. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 494-496 (1983). Ohio, however, has offered no reason to believe Congress intended this broader reading rather than the narrower statutory reading. Even assuming an equal likelihood for each intent, our rule requiring a narrow construction of waiver language tips the balance in favor of the narrow reading.

       We also reject Ohio’s argument purporting to rest on Hancock v. Train, 426 U. S. 167 (1976). In Hancock we determined that, as then written, § 118 of the Clean Air Act, 42 U. S. C. § 1857f (1970 ed.), did not require federal facilities to obtain state pollution permits as a condition of continued operation. The relevant portion of § 1867 required the National Government to “comply with Federal, State, interstate, and local requirements respecting control ... of air pollution.” Ohio and its amici stress the point in our analysis where we found it significant that §1857 did not require federal compliance with “all federal, state, interstate, and local requirements,” or with “all requirements of the applicable state implementation plan.” See 426 U. S., at 182 (emphasis in original). They read our opinion as drawing a distinction between substantive and procedural requirements, and as interpreting § 1867 as not waiving federal immunity from procedural requirements, the group in which we classified the state permit programs. Ohio and its amici conclude that the drafters of RCRA took our observations in Hancock to heart, and, seeking to waive federal sovereign immunity for all purposes, including liability for civil punitive fines, waived immunity for “all . . . requirements, both substantive and procedural.” 42 U. S. C. § 6961; see Brief for Respondent Ohio 41; see also, e. g., Brief for State of California et al. as Amici Curiae 21.
      The answer to this is twofold. Indications of the breadth of the Government’s obligation to comply with substantive or procedural requirements dealt with in Hancock do not necessarily translate into indications that the Government’s subjection to mechanisms for enforcing those obligations extends to punitive as well as to coercive sanctions. In any event, if Congress had in fact entertained the intention Ohio suggests, it would hardly have avoided any example of punitive fines at the same time as it expressly mentioned the coercive injunctive remedy.

       Cleanup at Federal Facilities: Hearing on H. R. 766 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess., Ser. No. 101-4, p. 44 (1989).

       U. S. General Accounting Office, Report to Congressional Requestors: Water Pollution, Stronger Enforcement Needed to Improve Compliance of Federal Facilities 3 (1988).

       H. R. Rep. No. 102-111, p. 3 (1991).

       Section 1362(6) states: “The term ‘person’ means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.”

       States may adopt more rigorous water quality standards than those established under the CWA. EPA regulations provide that a State is not precluded from:

        “(1) Adopting or enforcing requirements which are more stringent or more extensive than those required under this part;
      “(2) Operating a program with a greater scope of coverage than that required under this part. If an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the Federally approved program.” 40 CFR §123.1(h)(i) (1991) (emphasis added).


source: Caselaw Access Project

author: Justice Thomas Justice Stevens,

license: Public Domain

text:
    TAYLOR v. FREELAND & KRONZ et al.
    No. 91-571.
    Argued March 2, 1992
    Decided April 21, 1992

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 646.

      Timothy B. Dyk argued the cause for petitioner. With him on the briefs were Stephen J. Goodman, Peter M. Lieb, and Gary W. Short.

      Phillip S. Simon argued the cause for respondents. With him on the brief was Kenneth P. Simon

        Gary Klein and Daniel L. Haller filed a brief for the Mon Valley Unemployed Committee et al. as amici curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

Section 522(l) of the Bankruptcy Code requires a debtor to file a list of the property that the debtor claims as statutorily exempt from distribution to creditors. Federal Rule of Bankruptcy Procedure 4003 affords creditors and the bankruptcy trustee 30 days to object to claimed exemptions. We must decide in this case whether the trustee may contest the validity of an exemption after the 30-day period if the debtor had no colorable basis for claiming the exemption.

I

The debtor in this case, Emily Davis, declared bankruptcy while she was pursuing an employment discrimination claim in the state courts. The relevant proceedings began in 1978 when Davis filed a complaint with the Pittsburgh Commission on Human Relations. Davis alleged that her employer, Trans World Airlines (TWA), had denied her promotions on the basis of her race and sex. The Commission held for Davis as to liability but did not calculate the damages owed by TWA. The Pennsylvania Court of Common Pleas reversed the Commission, but the Pennsylvania Commonwealth Court reversed that court and reinstated the Commission’s determination of liability. TWA next appealed to the Pennsylvania Supreme Court.

In October 1984, while that appeal was pending, Davis filed a Chapter 7 bankruptcy petition. Petitioner, Robert J. Taylor, became the trustee of Davis’ bankruptcy estate. Respondents, Wendell G. Freeland, Richard F. Kronz, and their law firm, represented Davis in the discrimination suit. On a schedule filed with the Bankruptcy Court, Davis claimed as exempt property the money that she expected to win in her discrimination suit against TWA. She described this property as “Proceeds from lawsuit — [Davis] v. TWA” and “Claim for lost wages” and listed its value as “unknown.” App. 18.

Performing his duty as a trustee, Taylor held the required initial meeting of creditors in January 1985. See 11 U. S. C. § 341; Fed. Rule Bkrtcy. Proc. 2003(a). At this meeting, respondents told Taylor that they estimated that Davis might win $90,000 in her suit against TWA. Several days after the meeting, Taylor wrote a letter to respondents telling them that he considered the potential proceeds of the lawsuit to be property of Davis’ bankruptcy estate. He also asked respondents for more details about the suit. Respondents described the procedural posture of the case and expressed optimism that they might settle with TWA for $110,000.

Taylor decided not to object to the claimed exemption. The record reveals that Taylor doubted that the lawsuit had any value. Taylor at one point explained: “I have had past experience in examining debtors ...[.] [M]any of them . .. indicate they have potential lawsuits.... [M]any of them do not turn out to be advantageous and ... many of them might wind up settling far within the exemption limitation.” App. 52. Taylor also said that he thought Davis’ discrimination claim against TWA might be a “nullity.” Id., at 58. '

Taylor proved mistaken. In October 1986, the Pennsylvania Supreme Court affirmed the Commonwealth Court’s determination that TWA had discriminated against Davis. In a subsequent settlement of the issue of damages, TWA agreed to pay Davis a total of $110,000. TWA paid part of this amount by issuing a check made to both Davis and respondents for $71,000. Davis apparently signed this check over to respondents in payment of their fees. TWA paid the remainder of the $110,000 by other means. Upon learning of the settlement, Taylor filed a complaint against respondents in the Bankruptcy Court. He demanded that respondents turn over the money that they had received from Davis because he considered it property of Davis’ bankruptcy estate. Respondents argued that they could keep the fees because Davis had claimed the proceeds of the lawsuit as exempt.

The Bankruptcy Court sided with Taylor. It concluded that Davis had “no statutory basis” for claiming the proceeds of the lawsuit as exempt and ordered respondents to “return” approximately $23,000 to Taylor, a sum sufficient to pay off all of Davis’ unpaid creditors. In re Davis, 105 B. R. 288 (Bkrtcy. Ct. WD Pa. 1989). The District Court affirmed, In re Davis, 118 B. R. 272 (WD Pa. 1990), but the Court of Appeals for the Third Circuit reversed, 938 F. 2d 420 (1991). The Court of Appeals held that the Bankruptcy Court could not require respondents to turn over the money because Davis had claimed it as exempt, and Taylor had failed to object to the claimed exemption in a timely manner. We granted certiorari, 502 U. S. 976 (1991), and now affirm.

II

When a debtor files a bankruptcy petition, all of his property becomes property of a bankruptcy estate. See 11 U. S. C. § 541. The Code, however, allows the debtor to prevent the distribution of certain property by claiming it as exempt. Section 522(b) allowed Davis to choose the exemptions afforded by state law or the federal exemptions listed in § 522(d). Section 522(l) states the procedure for claiming exemptions and objecting to claimed exemptions as follows:

“The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section.... Unless a party in interest objects, the property claimed as exempt on such list is exempt.”

Although § 522(l) itself does not specify the time for objecting to a claimed exemption, Federal Rule of Bankruptcy Procedure 4003(b) provides in part:

“The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) . . . unless, within such period, further time is granted by the court.”

In this case, as noted, Davis claimed the proceeds from her employment discrimination lawsuit as exempt by listing them in the schedule that she filed under § 522(7). The parties agree that Davis did not have a right to exempt more than a small portion of these proceeds either under state law or under the federal exemptions specified in § 522(d). Davis in fact claimed the full amount as exempt. Taylor, as a result, apparently could have made a valid objection under § 522(l) and Rule 4003 if he had acted promptly. We hold, however, that his failure to do so prevents him from challenging the validity of the exemption now.

A

Taylor acknowledges that Rule 4003(b) establishes a 30-day period for objecting to exemptions and that §522(l) states that “[ujnless a party in interest objects, the property claimed as exempt... is exempt.” He argues, nonetheless, that his failure to object does not preclude him from challenging the exemption at this time. In Taylor’s view, §522(l) and Rule 4003(b) serve only to narrow judicial inquiry into the validity of an exemption after 30 days, not to preclude judicial inquiry altogether. In particular, he maintains that courts may invalidate a claimed exemption after expiration of the 30-day period if the debtor did not have a good-faith or reasonably disputable basis for claiming it. In this case, Taylor asserts, Davis did not have a colorable basis for claiming all of the lawsuit proceeds as exempt and thus lacked good faith.

Taylor justifies his interpretation of § 522(l) by arguing that requiring debtors to file claims in good faith will discourage them from claiming meritless exemptions merely in hopes that no one will object. Taylor does not stand alone in this reading of § 522(b). Several Courts of Appeals have adopted the same position upon similar reasoning. See In re Peterson, 920 F. 2d 1389, 1393-1394 (CA8 1990); In re Dembs, 757 F. 2d 777, 780 (CA6 1985); In re Sherk, 918 F. 2d 1170, 1174 (CA5 1990).

We reject Taylor’s argument. Davis claimed the lawsuit proceeds as exempt on a list filed with the Bankruptcy Court. Section 522(1), to repeat, says that “[ujnless a party in interest objects, the property claimed as exempt on such list is exempt.” Rule 4003(b) gives the trustee and creditors 30 days from the initial creditors’ meeting to object. By negative implication, the Rule indicates that creditors may not object after 30 days “unless, within such period, further time is granted by the court.” The Bankruptcy Court did not extend the 30-day period. Section 522(l) therefore has made the property exempt. Taylor cannot contest the exemption at this time whether or not Davis had a colorable statutory basis for claiming it.

Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality. In this case, despite what respondents repeatedly told him, Taylor did not object to the claimed exemption. If Taylor did not know the value of the potential proceeds of the lawsuit, he could have sought a hearing on the issue, see Rule 4003(c), or he could have asked the Bankruptcy Court for an extension of time to object, see Rule 4003(b). Having done neither, Taylor cannot now seek to deprive Davis and respondents of the exemption.

Taylor suggests that our holding will create improper incentives. He asserts that it will lead debtors to claim property exempt on the chance that the trustee and creditors, for whatever reason, will fail to object to the claimed exemption on time. He asserts that only a requirement of good faith can prevent what the Eighth Circuit has termed “exemption by declaration.” Peterson, supra, at 1393. This concern, however, does not cause us to alter our interpretation of §6220).

Debtors and their attorneys face penalties under various provisions for engaging in improper conduct in bankruptcy proceedings. See, e. g., 11 U. S. C. § 727(a)(4)(B) (authorizing denial of discharge for presenting fraudulent claims); Rule 1008 (requiring filings to “be verified or contain an unsworn declaration” of truthfulness under penalty of perjury); Rule 9011 (authorizing sanctions for signing certain documents not “well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law”); 18 U. S. C. § 152 (imposing criminal penalties for fraud in bankruptcy cases). These provisions may limit bad-faith claims of exemptions by debtors. To the extent that they do not, Congress may enact comparable provisions to address the difficulties that Taylor predicts will follow our decision. We have no authority to limit the application of § 522(l) to exemptions claimed in good faith.

B

Taylor also asserts that courts may consider the validity of the exemption under a different provision of the Bankruptcy Code, 11 U. S. C. § 105(a), despite his failure to object in a timely manner. That provision states:

“The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process” Ibid, (emphasis added).

Although Taylor stresses that he is not asserting that courts in bankruptcy have broad authorization to do equity in derogation of the Code and Rules, he maintains that § 105 permits courts to disallow exemptions not claimed in good faith. Several courts have accepted this position. See, e. g., Ragsdale v. Genesco, Inc., 674 F. 2d 277, 278 (CA4 1982); In re Staniforth, 116 B. R. 127, 131 (Bkrtcy. Ct. WD Wis. 1990); In re Budinsky, No. 90-01099, 1991 WL 105640 (WD Pa., June 10, 1991).

We decline to consider § 105(a) in this case because Taylor raised the argument for the first time in his opening brief on the merits. Our Rule 14.1(a) makes clear that “[o]nly the questions set forth in the petition [for certiorari], or fairly included therein, will be considered by the Court,” and our Rule 24.1(a) states that a brief on the merits should not “raise additional questions or change the substance of the questions already presented” in the petition. See Yee v. Escondido, 503 U. S. 519, 535 (1992). In addition, we have said that “[o]rdinarily, this Court does not decide questions not raised or resolved in the lower court[s].” Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam). These principles help to maintain the integrity of the process of certio-rari. Cf. Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985). The Court decides which questions to consider through well-established procedures; allowing the able counsel who argue before us to alter these questions or to devise additional questions at the last minute would thwart this system. We see no “unusual circumstances” that warrant addressing Taylor’s § 105(a) argument at this time. Berkemer v. McCarty, 468 U. S. 420, 443, n. 38 (1984).

The judgment of the Court of Appeals is

Affirmed.

Justice Stevens,

dissenting.

The Court states that it has “no authority to limit the application of § 522(l) to exemptions claimed in good faith.” Ante, at 645. It does not deny, however, that it has ample authority to hold that the doctrine of equitable tolling applies to the 30-day limitations period in Federal Rule of Bankruptcy Procedure 4003(b). In my view, such a result is supported not only by strong equitable considerations, but also by the common law, the widespread practice of the bankruptcy courts, and the text of § 522(b).

HH

Rule 4003, which is derived from § 522(l) of the Code and in part from former Bankruptcy Rule 403, shifted the emphasis of the earlier Rule, placing the burden on the debtor to list her exemptions and the burden on the parties in interest to raise objections. Rule 4003(b) in particular fills a gap that remains in §522(l), which is silent as to the time in which parties in interest must file their objections. Rule 4003(b) provides for a 30-day period for objections. Although the adoption of Rule 4003 has furthered the interest in orderly administration, there is no suggestion that it was put into effect in order to avoid prejudice to the debtor. Thus, there is no identifiable reason why ordinary tolling principles that apply in other contexts should not also apply in bankruptcy proceedings; indeed, the generally equitable character of bankruptcy makes it especially appropriate to apply such rules in this context.

It is familiar learning that the harsh consequences of federal statutes of limitations have been avoided at times by relying on either fraudulent concealment or undiscovered fraud to toll the period of limitation. For example, in Bailey v. Glover, 21 Wall. 342, 349-350 (1875), the Court described two situations in which the “strict letter of general statutes of limitation” would not be followed, id., at 347. The first situation is “where the ignorance of the fraud has been produced by affirmative acts of the guilty party in concealing the facts,” and the second is “where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part.” Id., at 347-348. The former involves fraudulent concealment; the latter defines undiscovered fraud. The Court concluded in Bailey that fraudulent concealment, which was at issue in that case, tolls the running of the statute of limitations when the fraud “has been concealed, or is of such character as to conceal itself.” Id., at 349-350. To hold otherwise, reasoned the Court, would “make the law which was designed to prevent fraud the means by which it is made successful and secure.” Id., at 349. In Holmberg v. Armbrecht, 327 U. S. 392, 397 (1946), the Court extended the reach of this tolling doctrine when it observed that it is to be “read into every federal statute of limitation.”

In this case, even if there was no fraud, and even if it is assumed that the trustee failed to exercise due diligence, it remains true that the parties injured by the trustee’s failure to object within the 30-day period are innocent creditors. Moreover, it is apparently undisputed that there was no legitimate basis for the claim of an exemption for the entire award. See ante, at 642. Under these circumstances, unless the debtor could establish some prejudice caused by the trustee’s failure to object promptly, I would hold that the filing of a frivolous claim for an exemption is tantamount to fraud for purposes of deciding when the 30-day period begins to run.

II

This, in essence, is also the position adopted by numerous Bankruptcy Courts and three Courts of Appeals. Over a period of years, they have held that the failure to make a timely objection is not dispositive, Rule 4003(b) notwithstanding. For example, in In re Hackett, 13 B. R. 755, 756 (Bkrtcy. Ct. ED Pa. 1981), the court explained that “[ejquita-ble considerations dictate that a debtor should not be allowed exemptions to which she is obviously not entitled.” This view was echoed in In re Rollins, 63 B. R. 780, 783-784 (Bkrtcy. Ct. ED Tenn. 1986): “[T]he debtor cannot make property exempt simply by claiming it as exempt when there is no apparent legal basis for the exemption. In that situation, the trustee’s failure to object to the claim of exemption within the time limit of Rule 4003(b) does not create an exemption.” More recently, the court in In re Ehr, 116 B. R. 665, 667 (Bkrtcy. Ct. ED Wis. 1988), reaffirmed this approach, as did the court in In re Staniforth, 116 B. R. 127, 130 (Bkrtcy. Ct. WD Wis. 1990). As one court explained: “Read strictly, Rule 4003 and Section 522(l) support appellants’ position concerning waiver. But, most courts have not followed appellants’ interpretation of these provisions. Instead, most courts hold that an exemption must have an apparent legal basis for an exemption to overcome an untimely objection.” In re Stutterheim, 109 B. R. 1010, 1012 (Kan. 1989).

The equitable principles that motivated these Bankruptcy Courts are best encapsulated by the court in In re Bennett, 36 B. R. 893 (Bkrtcy. Ct. WD Ky. 1984). There, the court explained that to apply Rule 4003(b) rigidly would be to encourage a debtor to claim that all of her property was exempt, thus leaving it to the trustee and creditors to sift through the myriad claimed exemptions to assess their validity. Such a policy would result in reversion to “the law of the streets, with bare possession constituting not nine, but ten, parts of the law; orderly administration of estates would be replaced by uncertainty and constant litigation if not outright anarchy.” Id., at 895.

Although several Courts of Appeals and Bankruptcy-Courts did not go as far as these courts, preferring instead in the case of an untimely objection to examine a claimed exemption to determine if there was a “good-faith statutory basis” for the exemption, they nevertheless eschewed the literal reading of the statute and rule adopted by the Court today. They did so because they believed it was important to strike a proper balance between avoiding the undesirable effect of “exemption by declaration” and yet not permitting a trustee “another bite at the debtor’s apple where the debtor has claimed certain property exempt in good faith.” In re Peterson, 920 F. 2d 1389, 1393-1394 (CA8 1990); see In re Sherk, 918 F. 2d 1170, 1174 (CA5 1990); In re Dembs, 757 F. 2d 777, 780 (CA6 1985).

Here, the trustee would succeed under either approach. Whether the court is always permitted to entertain an objection to a claimed exemption (at least until the case is closed) when the claimed exemption is invalid or whether the court can do so only if the claimed exemption lacks a good-faith statutory basis would mean that in this case the court could review the debtor’s claimed exemption. Here, the parties acknowledge that the debtor could not claim a statutory basis for her claimed exemption for the full award because neither backpay nor tort recovery is exempt under § 522(d)(5).

Ill

The practice of these lower courts has been motivated not only by equitable considerations, but also by the requirement set forth in § 522(b). Section 522(l) explicitly provides that “[t]he debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section.” Subsection (b) limits exemptions claimed by the debtor to “any property that is exempt under federal law ... or State or local law that is applicable on the date of the filing of the petition.” 11 U. S. C. § 522(b)(2)(A). When a debtor claims exemptions that do not even arguably satisfy this condition, there is good reason to hold that the filing does not comply with § 522 and therefore the 30-day objection period does not begin to run. As one court noted: “If Debtor may select in any manner her exemptions, then no purpose is served by the inclusion of the . . . terms.” In re Kingsbury, 124 B. R. 146, 148, n. 9 (Bkrtcy. Ct. Me. 1991). It declined to conclude that Congress added the requirements that the property be exempted “under federal law ... or state law or local law” but “refused to grant them meaning.” Ibid, (emphasis omitted).

IV

The Court’s disposition of this case is straightforward. Because it regards the meaning of the statute and Rule as “plain,” that is the end of the case. I have no doubt, however, that if the debtor or the trustee were guilty of fraud, the Court would readily ignore what it now treats as the insurmountable barrier of “plain meaning.” The equities in this case are not as strong as if fraud were implicated, but our power to reach a just result despite the “plain meaning” barrier is exactly the same as it was in Bailey v. Glover, 21 Wall. 342 (1875). Here, as in Bailey, we should be guided by the common-law principles that have supported the tolling of other statutes of limitations, and, in addition, by the experience of bankruptcy courts that have recognized the need for a similar rule to achieve both equitable results and fair administration in cases of this kind. In my view, it is a mistake to adopt a “strict letter” approach, id., at 347, when justice requires a more searching inquiry. Accordingly, I respectfully dissent.

       Rule 4003(b) provides:
      “The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list or supplemental schedules unless, within such period, further time is granted by the court. Copies of the objections shall be delivered or mailed to the trustee and to the person filing the list and the attorney for such person.”

       The tolling of a statute of limitations is not limited to eases of fraud. In medical malpractice suits, for example, this Court has long endorsed the view that the statute of limitations will not bar the claim of one who was “blameless!ly] ignoran[t]” of his injury; rather, the statute of limitations will not begin to rim until he has knowledge of his injury. Urie v. Thompson, 337 U. S. 163, 170 (1949).

       Some Bankruptcy Courts, however, have read the statute and Rule narrowly and have refused to examine any exemption in the absence of a timely objection. See, e. g., In re Bradlow, 119 B. R. 330, 331 (Bkrtcy. Ct. SD Fla. 1990); In re Duncan, 107 B. R. 754 (Bkrtcy. Ct. WD Okla. 1988); In re Payton, 73 B. R. 31, 32 (Bkrtcy. Ct. WD Tex. 1987); In re Kretzer, 48 B. R. 585, 587 (Bkrtcy. Ct. Nev. 1986); In re Gullickson, 39 B. R. 922 (Bkrtcy. Ct. WD Wis. 1984). Although the court in In re Hawn, 69 B. R. 567 (Bkrtcy. Ct. ED Tenn. 1987), took a similar view, it at least recognized that the result might be different if there had been “evidence that the debtor fraudulently or negligently concealed any facts from the trustee or any creditors.” Id., at 568.

       Bankruptcy courts would understandably be reluctant to encourage a policy that would contribute to the overburdening of the bankruptcy court system. As counsel for the trustee explained: “Last year there were 880,000 bankruptcy filings, 291 bankruptcy judges to deal with all of those filings, and a real need on the part of the bankruptcy courts to rely on the good faith of debtors in claiming exemptions, otherwise the whole system would collapse.” Tr. of Oral Arg. 13. For example, this trustee alone “had approximately two or three hundred of these cases a year, which ... is typical of bankruptcy trustees all across the country.” Id., at 15.

       The parties have stipulated that the debtor’s case has never been closed. App. 56.

       The debtor’s claimed exemptions in this case not only failed to satisfy any statutory basis, but also failed to provide even the basic information necessary to inform the trustee adequately about the exemption. For example, the debtor indicated on her Schedule B-4 Property Claimed As Exempt form that she was claiming the “[proceeds from lawsuit,” but that the value was “unknown.” App. 14-15. Although the value of the full award ended up amounting to $110,000, and only an amount of approximately $24,000 was required to satisfy the claims of all of her creditors, the debtor never amended her schedule to reflect the precise value of the award.


author: Per Curiam. Justice Stevens,

text:
    GOMEZ et al. v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA et al.
    No. A-767.
    Decided April 21, 1992
   Per Curiam.

Robert Alton Harris brought a 42 U. S. C. § 1983 action claiming that execution by lethal gas is cruel and unusual in violation of the Eighth Amendment. This action is an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467 (1991), to bar this successive claim for relief. Harris has now filed four prior federal habeas petitions. He has made no convincing showing of cause for his failure to raise this claim in his prior petitions.

Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State’s strong interest in proceeding with its judgment and Harris’ obvious attempt at manipulation. See In re Blodgett, 502 U. S. 236 (1992); Delo v. Stokes, 495 U. S. 320, 322 (1990) (Kennedy, J., concurring). This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.

The application to vacate the stay of execution of death is granted, and it is ordered that the orders staying the execution of Robert Alton Harris entered by the United States Court of Appeals for the Ninth Circuit in No. 92-70237 on April 20, 1992, are vacated.

Justice Stevens,

with whom Justice Blackmun joins,

dissenting.

In a time when the Court’s jurisprudence concerning the imposition of the death penalty grows ever more complicated, Robert Alton Harris brings a simple claim. He argues that California’s method of execution — exposure to cyanide gas — constitutes cruel and unusual punishment and therefore violates the Eighth and Fourteenth Amendments. In light of all that we know today about the extreme and unnecessary pain inflicted by execution by cyanide gas, and in light of the availability of more humane and less violent methods of execution, Harris’ claim has merit. I would deny the State’s application to vacate the stay imposed by the Court of Appeals and allow the courts below to hear and rule on Harris’ claim.

Execution by cyanide gas is “in essence asphyxiation by suffocation or strangulation.” As dozens of uncontro-verted expert statements filed in this case illustrate, execution by cyanide gas is extremely and unnecessarily painful.

“Following inhalation of cyanide gas, a person will first experience hypoxia, a condition defined as a lack of oxygen in the body. The hypoxic state can continue for several minutes after the cyanide gas is released in the execution chamber. During this time, a person will remain conscious and immediately may suffer extreme pain throughout his arms, shoulders, back, and chest. The sensation may be similar to pain felt by a person during a massive heart attack.”

“Execution by gas . . . produces prolonged seizures, incontinence of stool and urine, salivation, vomiting, retching, ballistic writhing, flailing, twitching of extremities, [and] grimacing.” This suffering lasts for 8 to 10 minutes, or longer.

Eyewitness descriptions of executions by cyanide gas lend depth to these clinical accounts. On April 6, 1992, Arizona executed Don Eugene Harding.

“When the fumes enveloped Don’s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.
“At this point Don’s body started convulsing violently .... His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode.
“After about a minute Don’s face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.
“After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don’s left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth. .. .
“Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.
“Don Harding took ten minutes and thirty one seconds to die.”

The unnecessary cruelty of this method of execution convinced Arizona’s Attorney General that that State should abandon execution by gas in favor of execution by lethal injection. His conclusion coincides with that of numerous medical, legal, and ethical experts.

The prohibition on cruel and unusual punishment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U. S. 349, 378 (1910). Accordingly, we have “interpreted the [Eighth] Amendment ‘in a flexible and dynamic manner.’ ” Stanford v. Kentucky, 492 U. S. 361, 369 (1989) (quoting Gregg v. Georgia, 428 U. S. 153, 171 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). When the California statute requiring execution by cyanide gas was enacted in 1937, the gas chamber was considered a humane method of execution. Fifty-five years of history and moral development have superseded that judgment. The barbaric use of cyanide gas in the Holocaust, the development of cyanide agents as chemical weapons, our contemporary understanding of execution by lethal gas, and the development of less cruel methods of execution all demonstrate that execution by cyanide gas is unnecessarily cruel. “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (opinion of Reed, J.).

Nowhere is this moral progress better demonstrated than in the decisions of the state legislatures. Of the 20 or so States to adopt new methods of execution since our ruling in Gregg v. Georgia, 428 U. S. 153 (1976), not a single State has chosen execution by lethal gas. Ten years ago, 10 States mandated execution by lethal gas; one by one, those States have abandoned that method as inhumane and torturous. Only California, Maryland, and Arizona currently mandate execution by gas. Of the 168 persons executed in the United States since 1977, only 6 have been executed by lethal gas. We have frequently emphasized that “[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry v. Lynaugh, 492 U. S. 302, 331 (1989). These “objective indicia that reflect the public attitude” toward execution by lethal gas, Stanford v. Kentucky, 492 U. S., at 370, clearly exhibit a nearly universal rejection of that means of execution. Cf. Enmund v. Florida, 458 U. S. 782, 788-796 (1982); Coker v. Georgia, 433 U. S. 584, 593-597 (1977). All of this leads me to conclude that execution by cyanide gas is both cruel and unusual, and that it violates contemporary standards of human decency.

More than a century ago, we declared that “[p]unishments are cruel when they involve torture or a lingering death.” In re Kemmler, 136 U. S. 436, 447 (1890). In light of our contemporary understanding of the methods of execution and in light of less cruel alternatives presently available, I believe that execution by cyanide gas is “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).

The State contends that Harris should have brought his claim earlier. This is not reason enough to upset the stay issued by the Court of Appeals and dispatch the considered judgment of the 14 appellate judges who voted to rehear the case en banc. Indeed, although reluctant to recognize as much, the State itself could have avoided this last-minute litigation. In 1983, seven States authorized executions by exposure to cyanide gas. In that year, three Members of this Court indicated that that method of execution raised sufficiently serious questions under the Eighth Amendment to merit review by writ of certiorari. See Gray v. Lucas, 463 U. S. 1237 (1983). Thereafter, four States (Colorado, Mississippi, Oregon, and Wyoming) abandoned cyanide gas as a method of execution. In light of these events and the decisions of other legislatures, California as well should have revisited its 55-year-old statute.

More fundamentally, if execution by cyanide gas is in fact unconstitutional, then the State lacks the power to impose such punishment. Harris’ delay, even if unjustified, cannot endow the State with the authority to violate the Constitution. It was this principle that animated Justice Harlan’s opinion in Mackey v. United States, 401 U. S. 667, 692-693 (1971), and that a plurality of this Court embraced in Teague v. Lane, 489 U. S. 288, 306-307 (1989) (opinion of O’Connor, J.). As Harlan emphasized, there are some instances in which the State’s interest in finality must give way. When the challenged conduct falls clearly beyond the State’s legitimate power, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” 401 U. S., at 693. For these reasons, the State’s interest in an immediate execution must yield to a deliberate and careful study of the merits of Harris’ claims.

Accordingly, I respectfully dissent.

       Exhibits in Support of Motion for Temporary Restraining Order in No. 92-70237 (ND Cal.) (hereinafter Exhibits), Éxh. 1, p. 6 (Declaration of Dr. Terence B. Allen).

         Id., Exh. 5, at 4 (Declaration of Richard J. Traystman, Ph. D.).

        Id., Exh. 1, at 2.

         Id., Exh. 7 (Execution Records, San Quentin Prison).

       2 id., Exh. 17, at 3-4 (Affidavit of James J. Belanger).

       Memorandum in Support of Emergency Application for Temporary Restraining Order in No. 92-70237 (ND Cal.), p. 8. A bill to substitute lethal injection for lethal gas as Arizona’s method of execution is currently pending before that State’s legislature. See 4 Exhibits, Exh. 62 (H. B. 2055).

       See, e. g., 1 id., Exh. 1, at 3; id., Exh. 2, at 3 (Declaration of Robert H. Kirschner, M. D.); id., Exh. 4, at 3 (Declaration of Kent R. Olson, M. D.).

       ts noted above, Arizona is considering abandoning lethal gas as a means of execution. See n. 6, supra. Maryland has not yet resumed executions.

       Notably, a memorandum prepared by California corrections officials correctly observes that “[l]ethal injection is considered to be more humane than other methods of execution (e. g., hanging, firing squad, lethal gas, or electrocution).” 1 Exhibits, Exh. 11, at 4.

       In Wilkerson v. Utah, 99 U. S. 130, 135-136 (1879), we ruled that punishments of “unnecessary cruelty” violated the Eighth Amendment, citing the ancient practices of drawing and quartering and “public dissection” as examples. Similarly in In re Kemmler, 136 U. S. 436, 446 (1890), we indicated that “burning at the stake, crucifixion, [and] breaking on the wheel” were as well cruel and unusual. To that list we might have added the garrotte, a device for execution by strangulation developed — and abandoned — centuries ago in Spain. See G. Scott, The History of Capital Punishment 159-160 (1950). To my mind, the gas chamber is nothing more than a chemical garrotte.


text:
    February 28, 1992
    No. 91-1271.
    Burlington County Bridge Commission v. Laconis.
   Super. Ct. Pa. Certiorari dismissed under this Court’s Rule 46.


text:
    No. 91-1083.
    Doherty v. Barr, Attorney General, et al.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 46.


text:
    No. 91-7437 (A-635).
    Clark v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied.


text:
    March 2, 1992
    No. 91-6255.
    Siggers et al. v. Tunica County Board of Supervisors et al.
   Appeal from D. C. N. D. Miss. Motion of appellees for leave to proceed informa pauperis granted. Judgment vacated and case remanded with instructions to dismiss the appeal as moot. United States v. Munsingwear, Inc., 340 U. S. 36 (1950).


text:
    No. 91-1116.
    Hicks v. Brown Group, Inc., dba Brown Shoe Co., Inc.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the Civil Rights Act of 1991.


text:
    No. 91-6586.
    Dean v. Veterans Administration.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded to the Court of Appeals to consider whether Rule 15(c) of the Federal Rules of Civil Procedure, as amended, applies to this case.


text:
    No. D-1043.
    In re Disbarment of Frazer.
    [For earlier order herein, see 502 U. S. 935.]
   Disbarment entered.


text:
    No. D-1056.
    In re Disbarment of Taub.
    [For earlier order herein, see 502 U. S. 978.]
   Disbarment entered.


text:
    No. D-1057.
    In re Disbarment of Berman.
    [For earlier order herein, see 502 U. S. 978.]
   Disbarment entered.


text:
    No. D-1058.
    In re Disbarment of Bonner.
    [For earlier order herein, see 502 U. S. 979.]
   Disbarment entered.


text:
    No. D-1059.
    In re Disbarment of Marquardt.
    [For earlier order herein, see 502 U. S. 1010.]
   Disbarment entered.


text:
    No. D-1085.
    In re Disbarment of Kenney.
   It is ordered that Donald J. Kenney, of Safford, Ariz., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1086.
    In re Disbarment of Nuzzo.
   It is ordered that Ralph A. Nuzzo, of Fairfield, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1087.
    In re Disbarment of Fox.
   It is ordered that H. Lawrence Fox, of Alexandria, Va., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1088.
    In re Disbarment of Kramer.
   It is ordered that Arnold I. Kramer, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1089.
    In re Disbarment of Wellman.
   It is ordered that Bruce D. Wellman, of Dixon, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1090.
    In re Disbarment of Garner.
   It is ordered that Gerald J. Garner, of Harrison, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 91-17.
    Estate of Cowart v. Nicklos Drilling Co. et al.
   C. A. 5th Cir. [Certiorari granted, 502 U. S. 1008.] Motion of the Solicitor General for divided argument granted.


text:
    No. 91-155.
    No. 91-339.
    International Society for Krishna Consciousness, Inc., et al. v. Lee, Superintendent of Port Authority Police; and Lee, Superintendent of Port Authority Police v. International Society for Krishna Consciousness, Inc., et al.
   C. A. 2d Cir. [Certiorari granted, 502 U. S.

1022.] Motions of Multimedia Newspaper Co. et al. and American Federation of Labor and Congress of Industrial Organizations for leave to file briefs as amici curiae granted.


text:
    No. 91-543.
    No. 91-558.
    No. 91-563.
    New York v. United States et al.; County of Allegany, New York v. United States et al.; and County of Cortland, New York v. United States et al.
   C. A. 2d Cir. [Certiorari granted, 502 U. S. 1023.] Motion of Council of State Governments for leave to file a brief as amicus curiae granted.


text:
    No. 91-872.
    United States v. Salerno et al.
   C. A. 2d Cir. [Certiorari granted, 502 U. S. 1056.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 91-1108.
    DeKalb Board of Realtors, Inc., et al. v. Thompson, dba Fletcher L. Thompson Realty, et al.
   C. A. 11th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.