author: Justice White Justice Sc alia,

text:
    BLANCHARD v. BERGERON et al.
    No. 87-1485.
    Argued November 28, 1988
    Decided February 21, 1989

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 97.

      William W. Rosen argued the cause for petitioner. With him on the brief was Charles J. Pisano.

      Edmond L. Guidry III argued the cause and filed a brief for respondent.

       Briefs of amici curiae urging reversal were filed for the Advocacy Center for the Elderly and Disabled by M. David Gelfand; for Farnsworth, Saperstein & Seligman et al. by Guy T. Saperstein, Antonia Hernandez, and E. Richard Larson; and for the National Association of Legal Assistants, Inc., by John A. DeVault III.

   Justice White

delivered the opinion of the Court.

The issue before us is whether an attorney’s fee allowed under 42 U. S. C. § 1988 is limited to the amount provided in a contingent-fee arrangement entered into by a plaintiff and his counsel.

I

Petitioner Arthur J. Blanchard brought suit in the United States District Court for the Western District of Louisiana alleging violations of his civil rights under 42 U. S. C. § 1983. Blanchard asserted that he was beaten by Sheriff’s Deputy James Bergeron while he was in Oudrey’s Odyssey Lounge. Blanchard brought his claim against the deputy, the sheriff, and the St. Martin Parish Sheriff’s Department. He also joined with his civil rights claim a state-law negligence claim against the above defendants and against the owners and a manager of the lounge and the lounge itself. The case was tried and a jury awarded Blanchard compensatory damages in the amount of $5,000 and punitive damages in the amount of $5,000 on his § 1983 claim. Under the provisions of 42 U. S. C. § 1988, which permit the award of attorney’s fees to a prevailing party in certain federal civil rights actions, Blanchard sought attorney’s fees and costs totaling more than $40,000. The District Court, after reviewing the billing and cost records furnished by counsel, awarded $7,500 in attorney’s fees and $886.92 for costs and expenses.

Petitioner appealed this award to the Court of Appeals for the Fifth Circuit, seeking to increase the award. The Court of Appeals, however, reduced the award because petitioner had entered into a contingent-fee arrangement with his lawyer, under which the attorney was to receive 40% of any damages awarded should petitioner prevail in his suit. While recognizing that other Circuits had different views, the court held that it was bound by its prior decision in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 718 (1974), to rule that the contingency-fee agreement “serves as a cap on the amount of attorney’s fee to be awarded.” 831 F. 2d 563, 564 (1987). The court further found that hours billed for the time of law clerks and paralegals were not compensable since they would be included within the contingency fee. Ibid. Accordingly, the court limited the fee award to 40% of the $10,000 damages award — $4,000.

Because other Courts of Appeals have concluded that a § 1988 fee award should not be limited by a contingent-fee agreement between the attorney and his client, we granted certiorari to resolve the conflict, 487 U. S. 1217 (1988). We now reverse.

II

Section 1988 provides that the court, “in its discretion, may allow ... a reasonable attorney’s fee .’. . .” The section does not provide a specific definition of “reasonable” fee, and the question is whether the award must be limited to the amount provided in a contingent-fee agreement. The legislative history of the Act is instructive insofar as it tells us: “In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, Tor all time reasonably expended on a matter.’” S. Rep. No. 94-1011, p. 6 (1976) (citing Davis v. County of Los Angeles, 8 EPD ¶ 9444 (CD Cal. 1974); and Stanford Daily v. Zurcher, 64 F. R. D. 680, 684 (ND Cal. 1974)).

In many past cases considering the award of attorney’s fees under § 1988, we have turned our attention to Johnson v. Georgia Highway Express, Inc., supra, a case decided before the enactment of the Civil Rights Attorney’s Fee Award Act of 1976. As we stated in Hensley v. Eckerhart, 461 U. S. 424, 429-431 (1983), Johnson provides guidance to Congress’ intent because both the House and Senate Reports refer to the 12 factors set forth in Johnson for assessing the reasonableness of an attorney’s fee award. The Senate Report, in particular, refers to three District Court decisions that “correctly applied” the 12 factors laid out in Johnson.

In the course of its discussion of the factors to be considered by a court in awarding attorney’s fees, the Johnson court dealt with fee arrangements:

“ ‘Whether or not [a litigant] agreed to pay a fee and in what amount is not decisive. Conceivably, a litigant might agree to pay his counsel a fixed dollar fee. This might be even more than the fee eventually allowed by the court. Or he might agree to pay his lawyer a percentage contingent fee that would be greater than the fee the court might ultimately set. Such arrangements should not determine the court’s decision. The criterion for the court is not what the parties agree but what is reasonable.’” 488 F. 2d, at 718 (quoting Clark v. American Marine Corp., 820 F. Supp. 709, 711 (ED La. 1970), aff’d 437 F. 2d 959 (CA5 1971)).

Yet in the next sentence, Johnson says “In no event, however, should the litigant be awarded a fee greater than he is contractually bound to pay, if indeed the attorneys have contracted as to amount.” 488 F. 2d, at 718. This latter statement, never disowned in the Circuit, was the basis for the decision below. But we doubt that Congress embraced this aspect of Johnson, for it pointed to the three District Court cases in which the factors are “correctly applied.” Those cases clarify that the fee arrangement is but a single factor and not determinative. In Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), aff’d, 550 F. 2d 464 (CA9 1977), rev’d on other grounds, 436 U. S. 547 (1978), for example, the District Court considered a contingent-fee arrangement to be a factor, but not dispositive, in the calculation of a fee award. In Davis v. County of Los Angeles, supra, the court permitted a fee award to counsel in a public interest firm which otherwise would have been entitled to no fee. Finally, in Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), the court stated that reasonable fees should be granted regardless of the individual plaintiff’s fee obligations. Johnson’s “list of 12” thus provides a useful catalog of the many factors to be considered in assessing the reasonableness of an award of attorney’s fees; but the one factor at issue here, the attorney’s private fee arrangement, standing alone, is not dispositive.

The Johnson contingency-fee factor is simply that, a factor. The presence of a pre-existing fee agreement may aid in determining reasonableness. “‘The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney’s fee expectations when he accepted the case.’” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 723 (1987) quoting Johnson, 488 F. 2d, at 718. But as we see it, a contingent-fee contract does not impose an automatic ceiling on an award of attorney’s fees, and to hold otherwise would be inconsistent with the statute and its policy and purpose.

As we understand § 1988’s provision for allowing, a “reasonable attorney’s fee,” it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. Should a fee agreement provide less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount. The defendant is not, however, required to pay the amount called for in a contingent-fee contract if it is more than a reasonable fee calculated in the usual way. It is true that the purpose of § 1988 was to make sure that competent counsel was available to civil rights plaintiffs, and it is of course arguable that if a plaintiff is able to secure an attorney on the basis of a contingent or other fee agreement, the purpose of the statute is served if the plaintiff is bound by his contract. On that basis, however, the plaintiff should recover nothing from the defendant, which would be plainly contrary to the statute. And Congress implemented its purpose by broadly requiring all defendants to pay a reasonable fee to all prevailing plaintiffs, if ordered to do so by the court. Thus it is that a plaintiff’s recovery will not be reduced by what he must pay his counsel. Plaintiffs who can afford to hire their own lawyers, as well as impecunious litigants, may take advantage of this provision. And where there are lawyers or organizations that will take a plaintiff’s case without compensation, that fact does not bar the award of a reasonable fee. All of this is consistent with and reflects our decisions in cases involving court-awarded attorney’s fees.

Hensley v. Eckerhart, 461 U. S. 424 (1983), directed lower courts to make an initial estimate of reasonable attorney’s fees by applying prevailing billing rates to the hours reasonably expended on successful claims. And we have said repeatedly that “[t]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U. S. 886, 888 (1984). The courts may then adjust this lodestar calculation by other factors. We have never suggested that a different approach is to be followed in cases where the prevailing party and his (or her) attorney have executed a contingent-fee agreement. To the contrary, in Hensley and in subsequent cases, we have adopted the lodestar approach as the centerpiece of attorney’s fee awards. The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation. In Blum, we rejected, as contrary to congressional intent, the notion that fees are to be calculated on a cost-based standard. Further, as we said in Blum, “Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.” 465 U. S., at 894. That a nonprofit legal services organization may contractually have agreed not to charge any fee of a civil rights plaintiff does not preclude the award of a reasonable fee to a prevailing party in a § 1983 action, calculated in the usual way.

It is clear that Congress “intended that the amount of fees awarded ... be governed by the same standards which pre- ■ vail in other types of equally complex Federal litigation . . . and not be reduced because the rights involved may be non-pecuniary in nature.” S. Rep. No. 94-1011, at 6. “The purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley, supra, at 429, quoting H. R. Rep. No. 94-1558, p. 1 (1976). Even when considering the award of attorney’s fees under the Clean Air Act, 42 U. S. C. §7401, the Court has applied the § 1988 approach, stating: “A strong presumption that the lodestar figure — the product of reasonable hours times a reasonable rate — represents a ‘reasonable fee’ is wholly consistent with the rationale behind the usual fee-shifting statute . . . .” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565 (1986).

If a contingent-fee agreement were to govern as a strict limitation on the award of attorney’s fees, an undesirable emphasis might be placed on the importance of the recovery of damages in civil rights litigation. The intention of Congress was to encourage successful civil rights litigation, not to create a special incentive to prove damages and shortchange efforts to seek effective injunctive or declaratory relief. Affirming the decision below would create an artificial disincentive for an attorney who enters into a contingent-fee agreement, unsure of whether his client’s claim sounded in state tort law or in federal civil rights, from fully exploring all possible avenues of relief. Section 1988 makes no distinction between actions for damages and suits for equitable relief. Congress has elected to encourage meritorious civil rights claims because of the benefits of such litigation for the named plaintiff and for society at large, irrespective of whether the action seeks monetary damages.

It should also be noted that we have not accepted the contention that fee awards in § 1983 damages cases should be modeled upon the contingent-fee arrangements used in personal injury litigation. “[W]e reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefiting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.” Riverside v. Rivera, 477 U. S. 561, 574 (1986).

Respondent cautions us that refusing to limit recovery to the amount of the contingency agreement will result in a “windfall” to attorneys who accept § 1983 actions. Yet the very nature of recovery under § 1988 is designed to prevent any such “windfall.” Fee awards are to be reasonable, reasonable as to billing rates and reasonable as to the number of hours spent in advancing the successful claims. Accordingly, fee awards, properly calculated, by definition will represent the reasonable worth of the services rendered in vindication of a plaintiff’s civil rights claim. It is central to the awarding of attorney’s fees under § 1988 that the district court judge, in his or her good judgment, make the assessment of what is a reasonable fee under the circumstances of the case. The trial judge should not be limited by the contractual fee agreement between plaintiff and counsel.

The contingent-fee model, premised on the award to an attorney of an amount representing a percentage of the damages, is thus inappropriate for the determination of fees under § 1988. The attorney’s fee provided for in a contingent-fee agreement is not a ceiling upon the fees recoverable under § 1988. Accordingly, we reverse and remand.

HH HH

Blanchard also complains of the failure of the court below to award fees in compensation for the time of paralegals and law clerks. Because the Court of Appeals held that recovery for legal fees was to be limited by the contingency agreement, that court never addressed the issue of separate billing for legal assistants. “[A]ny hours ‘billed’ by law clerks or paralegals would also naturally be included within the contingency fee.” 831 F. 2d, at 564. Since we hold today that the contingency-fee arrangement does not control the award for attorney’s fees, the determination of the total fee will be considered on remand. We reserve for another day the question whether legal assistants’ fees should be included in the award.

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

So ordered.

Justice Sc alia,

concurring in part and concurring in the judgment.

I concur in the judgment and join the opinion of the Court except that portion which rests upon detailed analysis of the Fifth Circuit’s opinion in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (1974), and the District Court decisions in Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975); Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974); and Davis v. County of Los Angeles, 8 EPD ¶9444 (CD Cal. 1974). See ante, at 91-93. The Court carefully examines those opinions, separating holding from dictum, much as a lower court would study our opinions -in order to be faithful to our guidance. The justification for this role reversal is that the Senate and House Committee Reports on the Civil Rights Attorney’s Fees Awards Act of 1976 referred approvingly to Johnson, and the Senate Report alone referred to the three District Court opinions as having “correctly applied” Johnson. The Court resolves the difficulty that Johnson contradicts the three District Court opinions on the precise point at issue here by concluding in effect that the analysis in Johnson was dictum, whereas in the three District Court opinions it was a holding. Despite the fact that the House Report referred only to Johnson, and made no mention of the District Court cases, the Court “doubt[s] that Congress embraced this aspect of Johnson, for it pointed to the three District Court cases in which the factors are ‘correctly applied.’” Ante, at 92.

In my view Congress did no such thing. Congress is elected to enact statutes rather than point to cases, and its Members have better uses for their time than poring over District Court opinions. That the Court should refer to the citation of three District Court cases in a document issued by a single committee of a single house as the action of Congress displays the level of unreality that our unrestrained use of legislative history has attained. I am confident that only a small proportion of the Members of Congress read either one of the Committee Reports in question, even if (as is not always the case) the Reports happened to have been published before the vote; that very few of those who did read them set off for the nearest law library to check out what was actually said in the four cases at issue (or in the more than 50 other cases cited by the House and Senate Reports); and that no Member of Congress came to the judgment that the District Court cases would trump Johnson on the point at issue here because the latter was dictum. As anyone familiar with modern-day drafting of congressional committee reports is well aware, the references to the cases were inserted, at best by a committee staff member on his or her own initiative, and at worst by a committee staff member at the suggestion of a lawyer-lobbyist; and the purpose of those references was not primarily to inform the Members of Congress what the bill meant (for that end Johnson would not merely have been cited, but its 12 factors would have been described, which they were not), but rather to influence judicial construction. What a heady feeling it must be for a young staffer, to know that his or her citation of obscure district court cases can transform them into the law of the land, thereafter dutifully to be observed by the Supreme Court itself.

I decline to participate in this process. It is neither compatible with our judicial responsibility of assuring reasoned, consistent, and effective application of the statutes of the United States, nor conducive to a genuine effectuation of congressional intent, to give legislative force to each snippet of analysis, and even every case citation, in committee reports that are increasingly unreliable evidence of what the voting Members of Congress actually had in mind. By treating Johnson and the District Court trilogy as fully authoritative,. the Court today expands what I regard as our cases’ exces-' sive preoccupation with them — and with the 12-factor Johnson analysis in particular. See, e. g., Blum v. Stenson, 465 U. S. 886, 893-896, 900 (1984); Hensley v. Eckerhart, 461 U. S. 424, 429-432, 434-435 (1983). This expansion is all the more puzzling because I had thought that in the first Delaware Valley case, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546 (1986), we had acknowledged our emancipation from Johnson, see 478 U. S., at 563-565. Indeed, the plurality opinion in the second Delaware Valley case, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 723-724 (1987) (Delaware Valley II), discussed Johnson and the other three cases almost exclusively by way of refuting arguments made in reliance upon them in Justice Brennan’s separate opinion in Blum v. Stenson, supra, at 902-903. Moreover, the concurring opinion that formed the fifth vote for the judgment in Delaware Valley II did not discuss the four cases at all. 483 U. S., at 731-734 (O’Connor, J., concurring in part and concurring in judgment). Except for the few passages to which I object, today’s opinion admirably follows our more recent approach of seeking to develop an interpretation of the statute that is reasonable, consistent, and faithful to its apparent purpose, rather than to achieve obedient adherence to cases cited in the committee reports. I therefore join the balance of the opinion.

       The Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94-559, 90 Stat. 2641, as set forth in 42 U. S. C. § 1988 states:
      1 In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
      The section states that the court “in its discretion” may allow a fee, but that discretion is not without limit: the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968); Hensley v. Eckerhart, 461 U. S. 424, 429 (1983).

       The District Court referred to the guidelines announced by this Court in Hensley v. Eckerhart, 461 U. S. 424 (1983), for determining the calculation of fee awards. In that case, we said that “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id., at 433. We also went on to say that “[t]he district court. . . should exclude from this initial fee calculation hours that were not ‘reasonably expended’” on the litigation. Id., at 434, quoting S. Rep. No. 94-1011, p. 6 (1976). The District Court here first determined that the plaintiff, Blanchard, was a prevailing party. Then, to arrive at a reasonable fee, the court multiplied what it deemed to be the reasonable hours expended on the litigation by a reasonable hourly rate. This lodestar figure was then further reduced by the District Court based on its considerations of “the elemental nature of this litigation and the contingency fee arrangement entered.” App. to Pet. for Cert. 14A (ruling in Civil Action No. 83-0755, filed Oct. 23, 1986; Record 363, 370). Accordingly, the District Court adjusted its lodestar of $9,720 downward to the awarded fee of $7,500. We express no opinion on the number of hours reasonably expended on this litigation or on the reasonable hourly rate for the work involved here or even whether the District Court correctly characterized the nature of the litigation as “elemental.”

       Blanchard’s attorney when he filed his original complaint on March 29, 1983, was Charles Pisano. On June 11, 1984, the District Court granted a motion substituting William Rosen as counsel.

        Cooper v. Singer, 719 F. 2d 1496, 1507 (CA10 1983); Lusby v. T. G. & Y. Stores, Inc., 749 F. 2d 1423 (CA10 1984), cert. denied, 474 U. S. 818 (1985); Sisco v. J. S. Alberici Constr. Co., 733 F. 2d 55, 56 (CA8 1984); Sanchez v. Schwartz, 688 F. 2d 503, 505 (CA7 1982). The Fifth Circuit is not alone, however, in holding that a contractual agreement between a § 1983 plaintiff and counsel should govern the award of attorney’s fees under § 1988. See Pharr v. Housing Authority of Prichard, 704 F. 2d 1216 (CA11 1983).

       The 12 factors set forth by the Johnson court for determining fee awards under § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(k) are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719.

       “The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N. C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976).


source: Caselaw Access Project

author:
Justice O’Connor
      Justice Scalia,

license: Public Domain

text:
    FIRESTONE TIRE & RUBBER CO. et al. v. BRUCH et al.
    No. 87-1054.
    Argued November 30, 1988
    Decided February 21, 1989

      O’Connor, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, Stevens, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 119.

      Martin Wald argued the cause for petitioners. With him on the briefs were James D. Crawford, Deena Jo Schneider, Steve D. Shadowen, and Thomas M. Forman.

      David M. Silberman argued the cause for respondents. With him on the brief were Laurence Gold, Paula R. Marko-witz, and Bruce R. Lerner.

      Christopher J. Wright argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Deputy Solicitor General Ayer, George R. Salem, Charles I. Hadden, and Jeffrey A. Hennemuth.

      Briefs of amici curiae urging reversal were filed for the American Council of Life Insurance et al. by Phillip E. Stano, Jack H. Blaine, and David J. Larkin, Jr.; for the Chamber of Commerce of the United States et al. by Rex E. Lee, Carter G. Phillips, Mark D. Hopson, Stephen A. Bokat, Robin S. Conrad, Jan S. Amundson, and Quentin Riegel; for the ERISA Industry Committee by John M. Vine, Hams Weinstein, and Elliott Schulder; and for the Travelers Insurance Co. by Carol H. Jewett.

      Briefs of amici curiae urging affirmance were filed for the Plaintiff Employment Lawyers Association by Paul H. Tobias; and for the Pension Rights Center by Karen W. Ferguson and Terisa E. Chaw.

        Christopher G. Mackaronis and Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons as amicus curiae.

   Justice O’Connor

delivered the opinion of the Court.

This case presents two questions concerning the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. First, we address the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under ERISA. Second, we determine which persons are “participants” entitled to obtain information about benefit plans covered by ERISA.

I

Late in 1980, petitioner Firestone Tire and Rubber Company (Firestone) sold, as going concerns, the five plants composing its Plastics Division to Occidental Petroleum Company (Occidental). Most of the approximately 500 salaried employees at the five plants were rehired by Occidental and continued in their same positions without interruption and at the same rates of pay. At the time of the sale, Firestone maintained three pension and welfare benefit plans for its employ-, ees: a termination pay plan, a retirement plan, and a stock purchase plan. Firestone was the sole source of funding for the plans and had not established separate trust funds out of which to pay the benefits from the plans. All three of the plans were either “employee welfare benefit plans” or “employee pension benefit plans” governed (albeit in different ways) by ERISA. By operation of law, Firestone itself was the administrator, 29 U. S. C. § 1002(16)(A)(ii), and fiduciary, § 1002(21)(A), of each of these “unfunded” plans. At the time of the sale of its Plastics Division, Firestone was not aware that the termination pay plan was governed by ERISA, and therefore had not set up a claims procedure, § 1183, nor complied with ERISA’s reporting and disclosure obligations, §§ 1021-1031, with respect to that plan.

Respondents, six Firestone employees who were rehired by Occidental, sought severance benefits from Firestone under the termination pay plan. In relevant part, that plan provides as follows:

“If your service is discontinued prior to the time you are eligible for pension benefits, you will be given termination pay if released because of a reduction in work force or if you become physically or mentally unable to perform your job.
' “The amount of termination pay you will receive will depend on your period of credited company service.”

Several of the respondents also sought information from Firestone regarding their benefits under all three of the plans pursuant to certain ERISA disclosure provisions. See §§ 1024(b)(4), 1025(a). Firestone denied respondents severance benefits on the ground that the sale of the Plastics Division to Occidental did not constitute a “reduction in work force” within the meaning of the termination pay plan. In addition, Firestone denied the requests for information concerning benefits under the three plans. Firestone concluded that respondents were not entitled to the information because they were no longer “participants” in the plans.

Respondents then filed a class action on behalf of “former, salaried, non-union employees who worked in the five plants that comprised the Plastics Division of Firestone.” Complaint ¶ 9, App. 94. The action was based on § 1132(a)(1), which provides that a “civil action may be brought ... by a participant or beneficiary [of a covered plan] . . . (A) for the relief provided for in [§ 1132(c)], [and] (B) to recover benefits due to him under the terms of his plan.” In Count I of their complaint, respondents alleged that they were entitled to severance benefits because Firestone’s sale of the Plastics Division to Occidental constituted a “reduction in work force” within the meaning of the termination pay plan. Complaint ¶¶23-44, App. 98-104. In Count VII, respondents alleged that they were entitled to damages under § 1132 (c) because Firestone had breached its reporting obligations under § 1025(a). Complaint ¶¶ 87-94, App. 104-106.

The District Court granted Firestone’s motion for summary judgment. 640 F. Supp. 519 (ED Pa. 1986). With respect to Count I, the District Court held that Firestone had satisfied its fiduciary duty under ERISA because its decision not to pay severance benefits to respondents under the termination pay plan was not arbitrary or capricious. Id., at 521-526. With respect to Count VII, the District Court held that, although § 1024(b)(4) imposes a duty on a plan administrator to respond to written requests for information about the plan, that duty extends only to requests by plan participants and beneficiaries. Under ERISA a plan participant is “any employee or former employee . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan.” § 1002(7). A beneficiary is “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” § 1002(8). The District Court concluded that respondents were not entitled to damages under § 1132(c) because they were not plan “participants” or “beneficiaries” at the time they requested information from Firestone. 640 F. Supp., at 534.

The Court of Appeals reversed the District Court’s grant of summary judgment on Counts I and VII. 828 F. 2d 134 (CA3 1987). With respect to Count I, the Court of Appeals acknowledged that most federal courts have reviewed the denial of benefits by ERISA fiduciaries and administrators under the arbitrary and capricious standard.. Id., at 138 (citing cases). It noted, however, that the arbitrary and capricious standard had been softened in cases where fiduciaries and administrators had some bias or adverse interest. Id., at 138-140. See, e. g., Jung v. FMC Corp., 755 F. 2d 708, 711-712 (CA9 1985) (where “the employer’s denial of benefits to a class avoids a very considerable outlay [by the employer], the reviewing court should consider that fact in applying the arbitrary and capricious standard of review,” and “[l]ess deference should be given to the trustee’s decision”). The Court of Appeals held that where an employer is itself the fiduciary and administrator of an unfunded benefit plan, its decision to deny benefits should be subject to de novo judicial review. It reasoned that in such situations deference is unwarranted given the lack of assurance of impartiality on the part of the employer. 828 F. 2d, at 137-145. With respect to Count VII, the Court of Appeals held that the right to request and receive information about an employee benefit plan “most sensibly extend[s] both to people who are in fact entitled to a benefit under the plan and to those who claim to be but in fact are not.” Id., at 153. Because the District Court had applied different legal standards in granting summary judgment in favor of Firestone on Counts I and VII, the Court of Appeals remanded the case for further proceedings consistent with its opinion.

We granted certiorari, 485 U. S. 986 (1988), to resolve the conflicts among the Courts of Appeals as to the appropriate standard of review in actions under § 1132(a)(1)(B) and the interpretation of the term “participant” in § 1002(7). We now affirm in part, reverse in part, and remand the case for further proceedings.

II

ERISA provides “a panoply of remedial devices” for participants and beneficiaries of benefit plans. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, 146 (1985). Respondents’ action asserting that they were entitled to benefits because the sale of Firestone’s Plastics Division constituted a “reduction in work force” within the meaning of the termination pay plan was based on the authority of § 1132(a) (1)(B). That provision allows a suit to recover benefits due under the plan, to enforce rights under the terms of the plan, and to obtain a declaratory judgment of future entitlement to benefits under the provisions of the plan contract. The discussion which follows is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations. We express no view as to the appropriate standard of review for actions under other remedial provisions of ERISA.

A

Although it is a “comprehensive and reticulated statute,” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359, 361 (1980), ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations. To fill this gap, federal courts have adopted the arbitrary and capricious standard developed under 61 Stat. 157, 29 U. S. C. § 186(c), a provision of the Labor Management Relations Act, 1947 (LMRA). See, e. g., Struble v. New Jersey Brewery Employees’ Welfare Trust Fund, 732 F. 2d 325, 333 (CA3 1984); Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F. 2d 97, 99-100, and n. 3 (CA5 1979). In light of Congress’ general intent to incorporate much of LMRA fiduciary law into ERISA, see NLRB v. Amax Coal Co., 453 U. S. 322, 332 (1981), and because ERISA, like the LMRA, imposes a duty of loyalty on fiduciaries and plan administrators, Firestone argues that the LMRA arbitrary and. capricious standard should apply to ERISA actions. See Brief for Petitioners 13-14. A comparison of the LMRA and ERISA, however, shows that the wholesale importation of the arbitrary and capricious standard into ERISA is unwarranted.

In relevant part, 29 U. S. C. § 186(c) authorizes unions and employers to set up pension plans jointly and provides that contributions to such plans be made “for the sole and exclusive benefit of the employees . . . and their families and dependents.” The LMRA does not provide for judicial review of the decisions of LMRA trustees. Federal courts adopted the arbitrary and capricious standard both as a standard of review and, more importantly, as a means of asserting jurisdiction over suits under § 186(c) by beneficiaries of LMRA plans who were denied benefits by trustees. See Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F. 2d 1048, 1052 (CA7 1987) (“[W]hen a plan provision as interpreted had the effect of denying an application for benefits unreasonably, or as it came to be said, arbitrarily and capriciously, courts would hold that the plan as ‘structured’ was not for the sole and exclusive benefit of the employees, so that the denial of benefits violated [§ 186(c)]).” See also Comment, The Arbitrary and Capricious Standard Under ERISA: Its Origins and Application, 23 Duquesne L. Rev. 1033, 1037-1039 (1985). Unlike the LMRA, ERISA explicitly authorizes suits against fiduciaries and plan administrators to remedy statutory violations, including breaches of fiduciary duty and lack of compliance with benefit plans. See 29 U. S. C. §§ 1132(a), 1132(f). See generally Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 52-57 (1987) (describing scope of § 1132(a)). Thus, the raison d’etre for the LMRA arbitrary and capricious standard — the need for a jurisdictional basis in suits against trustees — is not present in ERISA. See Note, Judicial Review of Fiduciary Claim Denials Under ERISA: An Alternative to the Arbitrary and Capricious Test, 71 Cornell L. Rev. 986, 994, n. 40 (1986). Without this jurisdictional analogy, LMRA principles offer no support for the adoption of the arbitrary and capricious standard insofar as § 1132(a)(1)(B) is concerned.

B

ERISA abounds with the language and terminology of trust law. See, e. g., 29 U. S. C. §§ 1002(7) (“participant”), 1002(8) (“beneficiary”), 1002(21)(A) (“fiduciary”), 1103(a) (“trustee”), 1104 (“fiduciary duties”). ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions, 29 U. S. C. §§ 1101-1114, “codif[y] and mak[e] applicable to [ERISA] fiduciaries certain principles developed in the evolution of the law of trusts.” H. R. Rep. No. 93-533, p. 11 (1973). Given this language and history, we have held that courts are to develop a “federal common law of rights and obligations under ERISA-regulated plans.” Pilot Life Ins. Co. v. Dedeaux, supra, at 56. See also Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1, 24, n. 26 (1983) (“ ‘[A] body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans’”) (quoting 129 Cong. Rec. 29942 (1974) (remarks of Sen. Ja-vits)). In determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law. Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 570 (1985).

Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. See Restatement (Second) of Trusts § 187 (1959) (“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion”). See also G. Bogert & G. Bogert, Law of Trusts and Trustees §560, pp. 193-208 (2d rev. ed. 1980). A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable. Id., §559, at 169-171.’ Whether “the exercise of a power is permissive or mandatory depends upon the terms of the trust.” 3 W. Fratcher, Scott on Trusts § 187, p. 14 (4th ed. 1988). Hence, over a century ago we remarked that “[w]hen trustees are in existence, and capable of acting, a court of equity will not interfere to control them in the exercise of a discretion vested in them by the instrument under which they act.” Nichols v. Eaton, 91 U. S. 716, 724-725 (1875) (emphasis added). See also Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., supra, at 568 (“The trustees’ determination that the trust documents authorize their access to records here in dispute has significant weight, for the trust agreement explicitly provides that ‘any construction [of the agreement’s provisions] adopted by the Trustees in good faith shall be binding upon the Union, Employees, and Employers’ ”). Firestone can seek no shelter in these principles of trust law, however, for there is no evidence that under Firestone’s termination pay plan the administrator has the power to construe uncertain terms or that eligibility determinations are to be given deference. See Brief for Respondents 24-25; Reply Brief for Petitioners 7, n. 2; Brief for United States as Amicus Curiae 14-15, n. 11.

Finding no support in the language of its termination pay plan for the arbitrary and capricious standard, Firestone argues that as a matter of trust law the interpretation of the terms of a plan is an inherently discretionary function. But other settled principles of trust law, which point to de novo review of benefit eligibility determinations. based on plan interpretations, belie this contention.' As' they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation. “The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney.” 3 W. Fratcher, Scott on Trusts §201, at 221 (emphasis added). A trustee who is in doubt as to the interpretation of the instrument can protect himself by obtaining instructions from the court. Bogert & Bogert, supra, §559, at 162-168; Restatement (Second) of Trusts §201, Comment b (1959). See also United States v. Mason, 412 U. S. 391, 399 (1973). The terms of trusts created by written instruments are “determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust as is not inadmissible.” Restatement (Second) of Trusts § 4, Comment d (1959).

The trust law de novo standard of review is consistent with the judicial interpretation of employee benefit plans prior to the enactment of ERISA. Actions challenging an employer’s denial of benefits before the enactment of ERISA were governed by principles of contract law. If the plan did not give the employer or administrator discretionary or final authority to construe uncertain terms, the court reviewed the employee’s claim as it would have any other contract claim— by looking to the terms of the plan and other manifestations of the parties’ intent. See, e. g., Conner v. Phoenix Steel Corp., 249 A. 2d 866 (Del. 1969); Atlantic Steel Co. v. Kitchens, 228 Ga. 708, 187 S. E. 2d 824 (1972); Sigman v. Rudolph Wurlitzer Co., 57 Ohio App. 4, 11 N. E. 2d 878 (1937).

Despite these principles of trust law pointing to a de novo standard of review for claims like respondents’, Firestone would have us read ERISA to require the application of the arbitrary and capricious standard to such claims. ERISA defines a fiduciary as one who “exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets.” 29 U. S. C. § 1002(21) (A)(i). A fiduciary has “authority to control and manage the operation and administration of the plan,” § 1102(a)(1), and must provide a “full and fair review” of claim denials, § 1133(2). From these provisions, Firestone concludes that an ERISA plan administrator, fiduciary, or trustee is empowered to exercise all his authority in a discretionary manner subject only to review for arbitrariness and capriciousness. But the provisions relied upon so heavily by Firestone do not characterize a fiduciary as one who exercises entirely discretionary authority or control. Rather, one is a fiduciary to the extent he exercises any discretionary authority or control. Cf. United Mine Workers of America Health and Retirement Funds v. Robinson, 455 U. S. 562, 573-574 (1982) (common law of trusts did not alter nondiseretionary obligation of trustees to enforce eligibility requirements as required by LMRA trust agreement).

ERISA was enacted “to promote the interests of employees and their beneficiaries in employee benefit plans,” Shaw v. Delta Airlines, Inc., 463 U. S. 85, 90 (1983), and “to protect contractually defined benefits,” Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S., at 148. See generally 29 U. S. C. § 1001 (setting forth congressional findings and declarations of policy regarding ERISA). Adopting Firestone’s reading of ERISA would require us to impose a standard of review that would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted. Nevertheless, Firestone maintains that congressional action after the passage of ERISA indicates that Congress intended ERISA claims to be reviewed under the arbitrary and capricious standard. At a time when most federal courts had adopted the arbitrary and capricious standard of review, a bill was introduced in Congress to amend § 1132 by providing de novo review of decisions denying benefits. See H. R. 6226, 97th Cong., 2d Sess. (1982), reprinted in Pension Legislation: Hearings on H. R. 1614 et al. before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 97th Cong., 2d Sess., 60 (1983). Because the bill was never enacted, Firestone asserts that we should conclude that Congress was satisfied with the arbitrary and capricious standard. See Brief for Petitioners 19-20. We do not think that this bit of legislative inaction carries the day for Firestone. Though “instructive,” failure to act on the proposed bill is not conclusive of Congress’ views on the appropriate standard of review. Bowsher v. Merck & Co., 460 U. S. 824, 837, n. 12 (1983). The bill’s demise may have been the result of events that had nothing to do with Congress’ view on the propriety of de novo review. Without more, we cannot ascribe to Congress any acquiescence in the arbitrary and capricious standard. “[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U. S. 304, 313 (1960).

Firestone and its amici also assert that a de novo standard would contravene the spirit of ERISA because it would impose much higher administrative and litigation costs and therefore discourage employers from creating benefit plans. See, e. g., Brief for American Council of Life Insurance et al. as Amici Curiae 10-11. Because even under the arbitrary and capricious standard an employer’s denial of benefits could be subject to judicial review, the assumption seems to be that a de novo standard would encourage more litigation by employees, participants, and beneficiaries who wish to assert their right to benefits. Neither general principles of trust law nor a concern for impartial decisionmaking, however, forecloses parties from agreeing upon a narrower standard of review. Moreover, as to both funded and unfunded plans, the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard that we have already explained.

As this case aptly demonstrates, the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue. Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Because we do not rest our decision on the concern for impartiality that guided the Court of Appeals, see 828 F. 2d, at 143-146, we need not distinguish between types of plans or focus on the motivations of plan administrators and fiduciaries. Thus, for purposes of actions under § 1132(a)(1)(B), the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest. Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “facto[r] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959).

Ill

Respondents unsuccessfully sought plan information from Firestone pursuant to 29 U. S. C. § 1024(b)(4), one of ERISA’s disclosure provisions. That provision reads as follows:

“The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary [of Labor] may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence.”

When Firestone did not comply with their request for information, respondents sought damages under 29 U. S. C. § 1132 (c)(1)(B) (1982 ed., Supp. IV), which provides that “[a]ny administrator . . . who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary . . . may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day.”

Respondents have not alleged that they are “beneficiaries” as defined in §1002(8). See Complaint ¶¶ 87-95, App. 104-106. The dispute in this case therefore centers on the definition of the term “participant,” which is found in § 1002(7):

“The term ‘participant’ means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.”

The Court of Appeals noted that § 1132(a)(1) allows suits for benefits “by a participant or beneficiary.” Finding that it would be illogical to say that a person could only bring a claim for benefits if he or she was entitled to benefits, the Court of Appeals reasoned that § 1132(a)(1) should be read to mean that “ ‘a civil action may be brought by someone who claims to be a participant or beneficiary.’” 828 F. 2d, at 152. It went on to conclude that the same interpretation should apply with respect to § 1024(b)(4): “A provision such as that one, entitling people to information on the extent of their benefits, would most sensibly extend both to people who are in fact entitled to a benefit under the plan and to those who claim to be but in fact are not.” Id., at 153.

The Court of Appeals “concede[d] that it is expensive and inefficient to provide people with information about benefits — and to permit them to obtain damages if information is withheld — if they are clearly not entitled to the benefits about which they are informed. ” Ibid. It tried to solve this dilemma by suggesting that courts use discretion and not award damages if the employee’s claim for benefits was not colorable or if the employer did not act in bad faith. There is, however, a more fundamental problem with the Court of Appeals’ interpretation of the term “participant”: it strays far from the statutory language. Congress did not say that all “claimants” could receive information about benefit plans. To say that a “participant” is any person who claims to be one begs the question of who is a “participant” and renders the definition set forth in § 1002(7) superfluous. Indeed, respondents admitted at oral argument that “the words point against [them].” Tr. of Oral Arg. 40.

In our view, the term “participant” is naturally read to mean either “employees in, or reasonably expected to be in, currently covered employment,” Saladino v. I. L. G. W. U. National Retirement Fund, 754 F. 2d 473, 476 (CA2 1985), or former employees who “have ... a reasonable expectation of returning to covered employment” or who have “a colorable claim” to vested benefits, Kuntz v. Reese, 785 F. 2d 1410, 1411 (CA9) (per curiam), cert. denied, 479 U. S. 916 (1986). In order to establish that he or she “may become eligible” for benefits, a claimant must have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future. “This view attributes conventional meanings to the statutory language since all employees in covered employment and former employees with a colorable claim to vested benefits ‘may become eligible.’ A former employee who has neither a reasonable expectation of returning to covered employment nor a color-able claim to vested benefits, however, simply does not fit within the [phrase] ‘may become eligible.’” Saladino v. I. L. G. W. U. National Retirement Fund, supra, at 476.

We do not think Congress’ purpose in enacting the ERISA disclosure provisions — ensuring that “the individual participant knows exactly where he stands with respect to the plan,” H. R. Rep. No. 93-533, p. 11 (1973)-will be thwarted by a natural reading of the term “participant.” Faced with the possibility of $100 a day in penalties under § 1132(c)(1)(B), a rational plan administrator or fiduciary would likely opt to provide a claimant with the information requested if there is any doubt as to whether the claimant is a “participant,” especially when the reasonable costs of producing the information can be recovered. See 29 CFR § 2520.104b-30(b) (1987) (the “charge assessed by the plan administrator to cover the costs of furnishing documents is reasonable if it is equal to the actual cost per page to the plan for the least expensive means of acceptable reproduction, but in no event may such charge exceed 25 cents per page”).

The Court of Appeals did not attempt to determine whether respondents were “participants” under § 1002(7). See 828 F. 2d, at 152-153. We likewise express no views as to whether respondents were “participants” with respect to the benefit plans about which they sought information. Those questions are best left to the Court of Appeals on remand.

For the reasons set forth above, the decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion.

So ordered.

Justice Scalia,

concurring in part and concurring in the judgment.

I join the judgment of the Court and Parts I and II of its opinion. I agree with its disposition but not all of its reasoning regarding Part III.

The Court holds that a person with a colorable claim is one who “ ‘may become eligible’ for benefits” within the meaning of the statutory definition of “participant,” because, it reasons, such a claim raises the possibility that “he or she will prevail in a suit for benefits.” Ante, at 117. The relevant portion of the definition, however, refers to an employee “who is or may become eligible to receive a benefit.” There is an obvious parallelism here: one “may become” eligible by acquiring, in the future, the same characteristic of eligibility that someone who “is” eligible now possesses. And I find it contrary to normal usage to think that the characteristic of “being” eligible consists of “having prevailed in a suit for benefits.” Eligibility exists not merely during the brief period between formal judgment of entitlement and payment of benefits. Rather, one is eligible whether or not he has yet been adjudicated to be — and, similarly, one can become eligible before he is adjudicated to be. It follows that the phrase “may become eligible” has nothing to do with the probabilities of winning a suit. I think that, properly read, the definition of “participant” embraces those whose benefits have vested, and those who (by reason of current or former employment) have some potential to receive the vesting of benefits in the future, but not those who have a good argument that benefits have vested even though they have not.

Applying the definition in this fashion would mean, of course, that if the employer guesses right that a person with a colorable claim is in fact not entitled to benefits, he can deny that person the information required to be provided under 29 U. S. C. § 1024(b)(4) without paying the $100-a-day damages assessable for breach of that obligation, 29 U. S. C. § 1132(c)(1)(B) (1982 ed., Supp. IV). Since, however, no employer sensible enough to consult the law would be senseless enough to take that risk, giving the term its defined meaning would produce precisely the same incentive for disclosure as the Court’s opinion.


author:
      Justice O’Connor
      Justice Brennan,

text:
    MESA et al. v. CALIFORNIA
    No. 87-1206.
    Argued December 6, 1988
    Decided February 21, 1989

      O’Connor, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 140.

      Deputy Solicitor General Ayer argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Michael K. Kellogg, Barbara L. Herwig, and John S. Koppel.

      Kenneth Rosenblatt argued the cause and filed a brief for respondent.
   Justice O’Connor

delivered the opinion of the Court.

We decide today whether United States Postal Service employees may, pursuant to 28 U. S. C. § 1442(a)(1), remove to Federal District Court state criminal prosecutions brought against them for traffic violations committed while on duty.

I

In the summer of 1985 petitioners Kathryn Mesa and Shabbir Ebrahim were employed as mailtruck drivers by the United States Postal Service in Santa Clara County, California. In unrelated incidents, the State of California issued criminal complaints against petitioners, charging Mesa with misdemeanor-manslaughter and driving outside a laned roadway after her mailtruck collided with and killed a bicyclist, and charging Ebrahim with speeding and failure to yield after his mailtruck collided with a police car. Mesa and Ebrahim were arraigned in the San Jose Municipal Court of Santa Clara County on September 16 and October 2, 1985, respectively. The Municipal Court set a pretrial conference in Mesa’s case for November 4, 1985, and set trial for Ebrahim on November 7, 1985.

On September 24 and October 4, 1985, the United States Attorney for the Northern District of California filed petitions in the United States District Court for the Northern District of California for removal to that court of the criminal complaints brought against Ebrahim and Mesa. The petitions alleged that the complaints should properly be removed to the Federal District Court pursuant to 28 U. S. C. § 1442(a)(1) because Mesa and Ebrahim were federal employees at the time of the incidents and because “the state charges arose from an accident involving defendant which occurred while defendant was on duty and acting in the course and scope of her employment with the Postal Service.” Mesa Petition for Removal of Criminal Action ¶3, App. 5. See also Ebrahim Petition for Removal of Criminal Action ¶ 3, App. 10 (“[T]he state charges arose from an accident involving defendant which occurred while defendant was on duty”)- The Santa Clara County District Attorney filed responsive motions to remand, contending that the State’s actions against Mesa and Ebrahim were not removable under § 1442(a)(1). The District Court granted the United States Government’s petitions for removal and denied California’s motions for remand.

California thereupon petitioned the Court of Appeals for the Ninth Circuit to issue a writ of mandamus compelling the District Court to remand the cases to the state court. The Court of Appeals consolidated the petitions, and a divided panel held that “federal postal workers may not remove state criminal prosecutions to federal court when they raise no col-orable claim of federal immunity or other federal defense.” 813 F. 2d 960, 967 (1987). Accordingly, the Court of Appeals issued a writ of mandamus ordering the District Court to deny the United States’ petitions for removal and remand the prosecutions for trial in the California state courts. We granted the United States’ petition for certiorari on behalf of Mesa and Ebrahim, 486 U. S. 1021 (1988), to resolve a conflict among the Courts of Appeals concerning the proper interpretation of § 1442(a)(1). We now affirm.

h-4

The removal provision at issue in this case, 28 U. S. C. § 1442(a), provides:

“A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
“(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
“(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
“(3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties;
“(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.”

The United States and California agree that Mesa and Ebrahim, in their capacity as employees of the United States Postal Service, were “person[s] acting under” an “officer of the United States or any agency thereof” within the meaning of § 1442(a)(1). Their disagreement concerns whether the California criminal prosecutions brought against Mesa and Ebrahim were “for act[s] under color of such office” within the meaning of that subsection. The United States, largely adopting the view taken by the Court of Appeals for the Third Circuit in Pennsylvania v. Newcomer, 618 F. 2d 246 (1980), would read “under color of office” to permit removal “whenever a federal official is prosecuted for the manner in which he has performed his federal duties . . . .” Brief for Petitioners 8. California, following the Court of Appeals below, would have us read the same phrase to impose a requirement that some federal defense be alleged by the federal officer seeking removal.

A

On numerous occasions in the last 121 years we have had the opportunity to examine § 1442(a) or one of its long line of statutory forebears. In Willingham v. Morgan, 395 U. S. 402, 405 (1969), we traced the “long history” of the federal officer removal statute from its origin in the Act of February 4, 1815, §8, 3 Stat. 198, as a congressional response to New England’s opposition to the War of 1812, through its expansion in response to South Carolina’s 1833 threats of nullification, and its further expansion in the Civil War era as the need to enforce revenue laws became acute, to enactment of the Judicial Code of 1948 when the removal statute took its present form encompassing all federal officers. 395 U. S., at 405-406. “The purpose of all these enactments,” we concluded, “is not hard to discern. As this Court said ... in Tennessee v. Davis, 100 U. S. 257, 263 (1880), the Federal Government

“ ‘can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection, — if their protection must be left to the action of the State court, — the operations of the general government may at any time be arrested at the will of one of its members.’” Id., at 406.

Tennessee v. Davis, 100 U. S. 257 (1880), involved a state murder prosecution brought against a revenue collector who claimed that, while he was in the act of seizing an illegal distillery under the authority of the federal revenue laws, “he was assaulted and fired upon by a number of armed men, and that in defence of his life he returned the fire,” killing one of the assailants. Id., at 261. Davis sought to remove the prosecution to federal court and Tennessee challenged the constitutionality of the removal statute. Rev. Stat. §643. Justice Strong framed the question presented thus:

“Has the Constitution conferred upon Congress the power to authorize the removal, from a State court to a Federal court, of an indictment against a revenue officer for an alleged crime against the State, and to order its removal before trial, when it appears that a Federal question or a claim to a Federal right is raised in the case, and must be decided therein?” 100 U. S., at 262 (emphasis added).

Justice Strong’s emphasis on the presence of a federal defense unifies the entire opinion. He thought it impossible that the Constitution should so weaken the Federal Government as to prevent it from protecting itself against unfriendly state legislation which “may affix penalties to acts done under the immediate direction of the national government, and in obedience to its laws [or] may deny the authority conferred by those laws.” Id., at 263.

Despite these references to a federal defense requirement, the United States argues that Davis justified the killing solely on grounds of self-defense and that the question whether Davis’ act of self-defense was actually justified is purely a question of state law, there being no “federal common law of ‘justification’ applicable to crimes committed by federal employees in the performance of their duties . . . .” Brief for Petitioners 20, n. 7. Thus, the Government concludes, despite much contrary language in the opinion, the fact that we approved the removal of Davis’ prosecution demonstrates that no federal defense is necessary to effect removal.

What the Government fails to note is that the successful legal defensé of “self-defense” depends on the truth of two distinct elements: that the act committed was, in a legal sense, an act of self-defense, and that the act was justified, that is, warranted under the circumstances. In Davis’ case, the truth of the first element depended on a question of federal law: was it Davis’ duty under federal law to seize the distillery? If Davis had merely been a thief attempting to steal his assailants’ property, returning their fire would simply not have been an act of self-defense, pretermitting any question of justification. Proof that Davis was not a thief depended on the federal revenue laws and provided the necessary predicate for removal. See In re Neagle, 135 U. S. 1, 94 (1890) (Lamar, J., dissenting) (“In Tennessee v. Davis . . . [t]he homicide, for which the petitioner was prosecuted, was committed by him while executing his duties, as a revenue officer, in pursuance of the express requirements of the revenue laws, and in defence of his own life, upon a party offering unlawful resistance”) (emphasis added); Maryland v. Soper (No. 2), 270 U. S. 36, 42 (1926) (“Thus removals of prosecutions on account of acts done in enforcement of the revenue or prohibition laws or under color of them properly include those acts committed by a federal officer in defense of his life, threatened while enforcing or attempting to enforce the law. Such acts of defense are really part of the exercise of his official authority. They are necessary to make the enforcement effective”). Accordingly, as Justice Strong’s conclusion in Davis makes clear, we upheld the constitutionality of the federal officer removal statute precisely because the statute predicated removal on the presence of a federal defense:

“It ought, therefore, to be considered as settled that the constitutional powers of Congress to authorize the removal of criminal cases for alleged offences against State laws from State courts to the circuit courts of the United States, when there arises a Federal question in them, is as ample as its power to authorize the removal of a civil case.” 100 U. S., at 271 (emphasis added).

Prior to Davis, we had considered the scope of congressional power to authorize the removal of a civil case in The Mayor v. Cooper, 6 Wall. 247 (1868), and again focused on the presence of a federal defense. Cooper sued the mayor and aldermen of Nashville, Tennessee, for trespasses on real estate and the asportation and conversion of chattels occurring during or shortly after the Civil War. The city officials sought to remove the suit to federal court under the federal officer removal statute. Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 756. They contended that at the time of the alleged trespasses, the mayor and aldermen of Nashville were appointees of the Military Governor of Tennessee and that the trespasses were committed under the order of a Union general. Cooper contended that the removal statute was unconstitutional. In upholding the statute’s constitutionality, we observed: “Nor is it any objection that questions are involved which are not all of a Federal character. If one of the latter exist, if there be a single such ingredient in the mass, it is sufficient. That element is decisive upon the subject of jurisdiction.” 6 Wall., at 252 (emphasis added). For purposes of removal, we only required the mayor and aldermen to allege a colorable defense under federal law; “[t]he validity of the defence authorized to be made is a distinct subject. It involves wholly different inquiries. ... It has no connection whatever with the question of jurisdiction.” Id., at 254.

Although we have not always spoken with the same clarity that these early decisions evince, we have not departed from the requirement that federal officer removal must be predicated on the allegation of a colorable federal defense. The United States argues that Cleveland, C., C. & I. R. Co. v. McClung, 119 U. S. 454 (1886), stands for the proposition that a federal defense is not a prerequisite to removal. In McClung a railroad brought suit in state court for recovery of a lien, alleging that a collector of customs had a federal duty under § 10 of 21 Stat. 175 to notify the carrier claiming the lien before delivering merchandise to its ultimate consignees even if the consignees had paid over the lien to the collector. The collector sought to remove the suit to federal court, setting up as his defense that he had no duty to notify the carrier under the federal statute. Despite the obvious presence of a federal question — the proper interpretation of § 10 of the statute — the United States argues that, because the collector’s defense was the absence of a federally created duty under the statute, his was not a federal defense. The argument is unavailing. Apart from the fact that the carrier itself could have brought suit in federal court based on “arising under” jurisdiction, the collector’s defense was clearly based on the statute's determination of the scope of his duties. To assert that a federal statute does not impose certain obligations whose alleged existence forms the basis of a civil suit is to rely on the statute in just the same way as asserting that the statute does impose other obligations that may shield the federal officer against civil suits. Both are equally defensive and equally based in federal law.

A later railroad case, Gay v. Ruff, 292 U. S. 25 (1934), points more definitively to our continuing understanding that federal officer removal must be predicated on a federal defense. Gay was a civil action but with facts remarkably similar to those in the criminal complaint brought against Mesa. Ruff filed suit in state court against Gay, the receiver of a railroad appointed by a Federal District Court, for the wrongful death of his son as a result of the negligent operation of a train by employees of the receiver. Gay sought to remove the action to federal court pursuant to § 33 of the Judicial Code, Act of Aug. 23, 1916, ch. 399, 39 Stat. 532, the then-current version of the federal officer removal statute. Much of Justice Brandéis’ opinion is devoted to determining whether railroad receivers were “officer[s] of the courts of the United States” for purposes of a recent amendment to the removal statute which provided that such an officer could remove to federal court civil or criminal actions against him brought “for or on account of any act done under color of his office or in the performance of his duties as such officer.” Cf. 28 U. S. C. § 1442(a)(3). In the course of his examination of the history of Judicial Code §33, Justice Brandéis concluded that “it applied . . . only when the person defending caused it to appear that his defense was that in doing the acts charged he was doing no more than his duty under those [revenue] laws or orders [of either House of Congress].” 292 U. S., at 33. Applying this understanding to the recent amendment concerning court officers, Justice Brandéis observed that “[t]he defendant receiver does not justify under any judgment or order of a federal court. Nor does the suit present otherwise any federal question. Its only relation to the federal law is that the receiver sued was appointed by a federal court. . . Id., at 34. This, “in harmony with the trend of legislation providing that the federal character of the litigant should not alone confer jurisdiction upon a federal court,” id., at 35, was not enough to sustain the receiver’s petition for removal. “The receiver here sued, although an officer of the court operating the railroad pursuant to the order appointing him, is not an officer engaged in enforcing an order of a court. . . . Nor is there reason to assume that he will in this case rest his defense on his duty to cause the train to be operated.” Id., at 39.

Finally, the Government relies on Maryland v. Soper (No. 1), 270 U. S. 9 (1926), a decision in which we rejected the removal petitions of federal officers. This prohibition era decision involved prohibition agents charged with murder' and rejected the federal officers’ removal petitions on the grounds that the averments in the petitions themselves were “not sufficiently informing and specific to make a case for removal . . . .” Id., at 34. In Soper (No. 1), unlike any prior removal case we had adjudicated, the prohibition agents were only able to assert that they neither committed nor had any knowledge of the murder for which they were charged. They had simply come upon a wounded and dying man in the vicinity of an illegal still which they had destroyed after unsuccessfully giving chase to bootleggers. While rejecting the agents’ petition as “not sufficiently informing,” ibid., Chief Justice Taft also rejected Maryland’s contention that a federal officer can successfully remove a criminal prosecution only “by admitting that he did the act for which he is prosecuted.” Id., at 32. Rather, the Chief Justice enunciated the following test:

“There must be a causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him, for whatever offense, has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty. But the statute does not require that the prosecution must be for the very acts which the officer admits to have been done by him under federal authority. It is enough that his acts or his presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.” Id., at 33.

Unlike the Government, we do not understand the causal connection test of Soper (No. 1) to have eliminated the general requirement that federal officer removal be predicated on the existence of a federal defense. Soper (No. 1) presented a unique criminal prosecution, markedly unlike those before us today, where a federal officer pleaded by traverse and sought removal. While we rejected the removal petition at issue in that case, the decision assumed that a situation could arise in which a petition that pleaded by traverse might warrant removal. Under such circumstances, we suggested that careful pleading, demonstrating the close connection between the state prosecution and the federal officer’s performance of his duty, might adequately replace the specific averment of a federal defense. We are not today presented with such a pleading by traverse and need not decide whether removal on the grounds suggested in Soper (No. 1) would be permissible under either the statute or the Constitution.

Similarly, we do not understand Willingham v. Morgan, 395 U. S. 402 (1969), to have been such a case. In Willing-ham, the petitioner sued federal prison officials in state court on state tort law grounds for injuries he allegedly had received while imprisoned. The officials sought removal on official immunity grounds. See Barr v. Matteo, 360 U. S. 564 (1959); Howard v. Lyons, 360 U. S. 593, 597 (1959) (the validity of a claim of official immunity to state tort actions “must be judged by federal standards, to be formulated by the courts in the absence of legislative action by Congress”); see also Westfall v. Erwin, 484 U. S. 292, 295 (1988). The central question at issue in Willingham was whether the defense of official immunity was sufficient to support removal under § 1442(a)(1). We held that the removal statute “is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law. ... In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” 395 U. S., at 406-407.

In Willingham we adverted to the causal connection test of Soper (No. 1), not as a substitute for the averment of an official immunity defense, but as a means of delimiting the pleading requirements for establishing a colorable defense of that nature. Id., at 409 (“In this case, once petitioners had shown that their only contact with respondent occurred inside the penitentiary, while they were performing their duties, we believe that they had demonstrated the required ‘causal connection.’ The connection consists, simply enough, of the undisputed fact that petitioners were on duty, at their place of federal employment, at all the relevant times”). Despite the Government’s suggestion, we decline to divorce the federal official immunity defense from the pleadings required to allege it and transform those pleading requirements into an independent basis for jurisdiction. Mesa and Ebrahim have not and could not present an official immunity defense to the state criminal prosecutions brought against them. Imbler v. Pachtman, 424 U. S. 409, 429 (1976) (“This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law”). Accordingly, the liberal pleadings sufficient to allege an official immunity defense which we permitted in Willingham are inapplicable to removal of the prosecutions before us today.

In sum, an unbroken line of this Court’s decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.

B

In the face of all these decisions, the Government defends the proposition that § 1442(a)(1) permits removal without the assertion of a federal defense. It does so based on the plain language of the removal statute and on the substantial federal interests that would be protected by permitting universal removal of all civil actions and criminal prosecutions brought against any federal official “for the manner in which he has performed his federal duties . . . .” Brief for Petitioners 8.

The critical phrase “under color of office” first appeared in the Act of July 13, 1866, ch. 184, §67, 14 Stat. 171, and has remained in every version of the removal statute that we have interpreted since we decided Tennessee v. Davis in 1880. Nevertheless, the Government contends that “under color of office” cannot bear the weight of a federal defense requirement. We agree with the Government that the specialized grants of jurisdiction in the last clause of subsection (1) concerning the apprehension of criminals and the collection of revenue and subsections (2) — (4) of § 1442(a) are largely the “residue” of the pre-1948, more limited removal statutes now entirely encompassed by the general removal provision of the first clause of subsection (1). See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1057 (3d ed. 1988). The Government, however, derives from consideration of subsection (3) — “[a]ny officer of the courts of the United States, for any act under color of office or in the performance of his duties” — support for its argument that the removal statute “is not limited to cases in which the federal employee raises a federal defense.” Brief for Petitioners 26. The Government argues that “in the performance of his duties” must mean something besides “under color of office” in subsection (3). Nonetheless, by hypothesis, the disjunction in subsection (3) means no more than “under color of such office” in subsection (1). Therefore, the Government concludes, the controlling provision in subsection (1) must be construed broadly to permit removal of any civil actions or criminal prosecutions brought against a federal officer for acts done during the performance of his duties regardless of whether that officer raises a federal defense.

The court officers provision of subsection (3) was added to Judicial Code §33 — the removal statute superseded by the 1948 enactment — by the Act of August 23, 1916, ch. 399, 39 Stat. 532. We considered this provision in Gay v. Ruff, and explicitly rejected the argument the United States makes today. First, we recognized that the purpose of the 1916 amendment was “ ‘to extend the provisions of section 33 uniformly to officers of the courts of the United States, not only in cases arising under the revenue laws, but in all cases, giving to them the same protection in all cases now given to officers acting under the revenue laws, and to officers of Congress.’” 292 U. S., at 38, quoting H. R. Rep. 776, 64th Cong., 1st Sess., 2 (1916). Second, we also recognized that “[t]here is no expression in the Act of 1916, or in the proceedings which led to its enactment, of an intention to repeal any existing law or to depart from the long-existing policy of restricting the federal jurisdiction.” 292 U. S., at 37. Third, as discussed earlier, we noted that the “existing law” which “restriet[ed] the federal jurisdiction” was precisely the requirement that the federal officer predicate removal on the averment of a federal defense. Id., at 33-35, 39; see also supra, at 130-131. Accordingly, we concluded that “in the performance of his duties” meant no more than “under color of office,” and that Congress meant by both expressions to preserve the pre-existing requirement of a federal defense for removal. Again, we see no reason to depart from this longstanding interpretation of Congress’ intent in enacting the removal statute.

c

The Government’s view, which would eliminate the federal defense requirement, raises serious doubt whether, in enacting § 1442(a), Congress would not have “expanded] the jurisdiction of the federal courts beyond the bounds established by the Constitution.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 491 (1983). In Verlinden, we discussed the distinction between “jurisdictional statutes” and “the federal law under which [an] action arises, for Art. Ill purposes,” and recognized that pure jurisdictional statutes which seek “to do nothing more than grant jurisdiction over a particular class of cases” cannot support Art. Ill “arising under” jurisdiction. Id., at 496, citing The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 451-543 (1852); Mossman v. Higginson, 4 Dall. 12 (1800). In Verlinden we held that the Foreign Sovereign Immunities Act of 1976, 28 U. S. C. § 1330, is a “comprehensive scheme” comprising both pure jurisdictional provisions and federal law capable of supporting Art. Ill “arising under” jurisidiction. 461 U. S., at 496.

Section 1442(a), in our view, is a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant. Section 1442(a), therefore, cannot independently support Art. Ill “arising under” jurisdiction. Rather, it is the raising of a federal question in the officer’s removal petition that constitutes the federal law under which the action against the federal officer arises for Art. Ill purposes. The removal statute itself merely serves to overcome the “well-pleaded complaint” rule which would otherwise preclude removal even if a federal defense were alleged. See Verlinden, supra, at 494; Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 808 (1986) (under the “well-pleaded complaint” rule “[a] defense that raises a federal question is inadequate to confer federal jurisdiction”); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). Adopting the Government’s view would eliminate the substantive Art. Ill foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems. We are not inclined to abandon a longstanding reading of the officer removal statute that clearly preserves its constitutionality and adopt one which raises serious constitutional doubt. See Califano v. Yamasaki, 442 U. S. 682, 693 (1979) (“[I]f ‘a construction of the statute is fairly possible by which [a serious doubt of constitutionality] may be avoided,’ Crowell v. Benson, 285 U. S. 22, 62 (1932), a court should adopt that construction”) (brackets in original).

At oral argument the Government urged upon us a theory of “protective jurisdiction” to avoid these Art. Ill difficulties. Tr. of Oral Arg. 6. In Willingham, we recognized that Congress’ enactment of federal officer removal statutes since 1815 served “to provide a federal forum for cases where federal officials must raise defenses arising from their official duties . . . [and] to protect federal officers from interference by hostile state courts.” 395 U. S., at 405. The Government insists that the full protection of federal officers from interference by hostile state courts cannot be achieved if the averment of a federal defense must be a predicate to removal. More important, the Government suggests that this generalized congressional interest in protecting federal officers from state court interference suffices to support Art. Ill “arising under” jurisdiction.

We have, in the past, not found the need to adopt a theory of “protective jurisdiction” to support Art. Ill “arising under” jurisdiction, Verlinden, supra, at 491, n. 17, and we do not see any need for doing so here because we do not recognize any federal interests that are not protected by limiting removal to situations in which a federal defense is alleged. In these prosecutions, no state court hostility or interference has even been alleged by petitioners and we can discern no federal interest in potentially forcing local district attorneys to choose between prosecuting traffic violations hundreds of miles from the municipality in which the violations occurred or abandoning those prosecutions.

The Santa Clara County Municipal Court, as it happens, is located in San Jose, as is a Federal District Court of the Northern District of California. As California observes, however, other of its county seats may be located up to 350 miles from the nearest Federal District Court. Brief for Respondent 47, n. 25. In other of our Nation’s large but less populous States the distances and accompanying burdens on state prosecutors may be even more acute. For example, the distance from Barrow, Alaska, the seat of that State’s Second Judicial District, to Nome, where the nearest Federal District Court sits, is over 500 miles. We have emphasized:

“[U]nder our federal system, it goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government. Because the regulation of crime is pre-eminently a matter for the States, we have identified a strong judicial policy against federal interference with state criminal proceedings.” Arizona v. Manypenny, 451 U. S. 232, 243 (1981) (citations and internal quotations omitted).

It is hardly consistent with this “strong judicial policy” to permit removal of state criminal prosecutions of federal officers and thereby impose potentially extraordinary burdens on the States when absolutely no federal question is even at issue in such prosecutions. We are simply unwilling to credit the Government’s ominous intimations of hostile state prosecutors and collaborationist state courts interfering with federal officers by charging them with traffic violations and other crimes for which they would have no federal defense in immunity or otherwise. That is certainly not the case in the prosecutions of Mesa and Ebrahim, nor was it the case in the removal of the state prosecutions of federal revenue agents that confronted us in our early decisions. In those cases where true state hostility may have existed, it was specifically directed against federal officers’ efforts to carry out their federally mandated duties. E. g., Tennessee v. Davis, 100 U. S. 257 (1880). As we said in Maryland v. Soper (No. 2), 270 U. S., at 43-44, with respect to Judicial Code §33:

“In answer to the suggestion that our construction of § 33 and our failure to sustain the right of removal in the case before us will permit evilly minded persons to evade the useful operations of §33, we can only say that, if prosecutions of this kind come to be used to obstruct seriously the enforcement of federal laws, it will be for Congress in its discretion to amend §33 so that the words . . . shall be enlarged to mean that any prosecution of a federal officer for any state offense which can be shown by evidence to have had its motive in a wish to hinder him in the enforcement of federal law, may be removed for trial to the proper federal court. We are not now considering or intimating whether such an enlargement would be valid; but what we wish to be understood as deciding is that the present language of § 33 can not be broadened by fair construction to give it such a meaning. These were not prosecutions, therefore, commenced on account of acts done by these defendants solely in pursuance of their federal authority. With the statute as it is, they can not have the protection of a trial in the federal court . . . .”

Chief Justice Taft’s words of 63 years ago apply equally well today; the present language of § 1442(a) cannot be broadened by fair construction to give it the meaning which the Government seeks. Federal officer removal under 28 U. S. C. § 1442(a) must be predicated upon averment of a federal defense. Accordingly, the judgment of the Court of Appeals is affirmed.

So ordered.

Justice Brennan,

with whom Justice Marshall joins, concurring.

While I concur in the judgment and opinion of the Court, I write separately to emphasize a point that might otherwise be overlooked. In most routine traffic-accident cases like those presented here, no significant federal interest is served by removal; it is, accordingly, difficult to believe that Congress would have intended the statute to reach so far. It is not at all inconceivable, however, that Congress’ concern about local hostility to federal authority could come into play in some circumstances where the federal officer is unable to present any “federal defense.” The days of widespread resistance by state and local governmental authorities to Acts of Congress and to decisions of this Court in the areas of school desegregation and voting rights are not so distant that we should be oblivious to the possibility of harassment of federal agents by local law enforcement authorities. Such harassment could well take the form of unjustified prosecution for traffic or other offenses, to which the federal officer would have no immunity or other federal defense. The removal statute, it would seem to me, might well have been intended to apply in such unfortunate and exceptional circumstances.

The Court today rightly refrains from deciding whether removal in such a situation is possible, since that is not the case before us. But the Court leaves open the possibility that where a federal officer is prosecuted because of local hostility to his function, “careful pleading, demonstrating the close connection between the state prosecution and the federal officer’s performance of his duty, might adequately replace the specific averment of a federal defense.” Ante, at 132. With the understanding that today’s decision does not foreclose the possibility of removal in such circumstances even in the absence of a federal defense, I join the Court’s opinion.

       The “Arising Under” Clause provides: “The judicial Power [of the United States] shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” U. S. Const., Art. III, §2, el. 1.