author: Justice Stevens Chief Justice Rehnquist,

text:
    McNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, et al. v. HAITIAN REFUGEE CENTER, INC., et al.
    No. 89-1332.
    Argued October 29, 1990
    Decided February 20, 1991

      Stevens, J., delivered the opinion of the Court, in which MARSHALL, Blackmun, O’Connor, Kennedy, and Souter, JJ., joined, and in Parts I, II, III, and IV of which White, J., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 499.

      Michael R. Dreeben argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assist

      ant Attorney General Gerson, Deputy Solicitor General Shapiro, and David V. Bernal.

      Ira J. Kurzban argued the cause for respondents. With him on the brief were Bruce J. Winick, Irwin P. Stotzky, and Edward Copeland.

      Briefs of amici curiae urging affirmance were filed for the State of California et al. by Joseph R. Austin, John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Fredric D. Woocher, Robert A. Ginsburg, Niels Frenzen, Jorge L. Fernandez, and Richard K. Mason; for the American Bar Association by John J. Curtin, Jr., Robert E. Juceam, Sandra M. Lipsman, Craig H. Baab, and Carol L. Wolchok; for the American Federation of Labor and Congress of Industrial Organizations by Michael Rubin, Marsha S. Ber-zon, and Laurence Gold; and for the Farm Labor Alliance et al. by Peter A. Schey, Wayne H. Matelski, Monte B. Lake, Ralph Santiago Abascal, and Robert Gibbs.

   Justice Stevens

delivered the opinion of the Court.

The Immigration Reform and Control Act of 1986 (Reform Act) constituted a major statutory response to the vast tide of illegal immigration that had produced a “shadow population” of literally millions of undocumented aliens in the United States. On the one hand, Congress sought to stem the tide by making the plight of the undocumented alien even more onerous in the future than it had been in the past; thus, the Reform Act imposed criminal sanctions on employers who hired undocumented workers and made a number of federally funded welfare benefits unavailable to these aliens. On the other hand, in recognition that a large segment of the shadow population played a useful and constructive role in the American economy, but continued to reside in perpetual fear, the Reform Act established two broad amnesty programs to allow existing undocumented aliens to emerge from the shadows.

The first amnesty program permitted any alien who had resided in the United States continuously and unlawfully since January 1, 1982, to qualify for an adjustment of his or her status to that of a lawful permanent resident. See 100 Stat. 3394, as amended, 8 U. S. C. § 1255a. The second program required the Attorney General to adjust the status of any alien farmworker who could establish that he or she had resided in the United States and performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986, provided that the alien could also establish his or her admissibility in the United States as an immigrant. The Reform Act required the Attorney General first to adjust the status of these aliens to “[sjpecial agricultural workers” (SAW’s) lawfully admitted for temporary residence, see 100 Stat. 3417, as amended, 8 U. S. C. § 1160(a) (1), and then eventually to aliens lawfully admitted for permanent residence, see § 1160(a)(2).

This case relates only to the SAW amnesty program. Although additional issues were resolved by the District Court and the Court of Appeals, the only question presented to us is whether § 210(e) of the Immigration and Nationality Act (INA), which was added by § 302(a) of the Reform Act and sets forth the administrative and judicial review provisions of the SAW program, see 8 U. S. C. § 1160(e), precludes a federal district court from exercising general federal-question jurisdiction over an action alleging a pattern or practice of procedural due process violations by the Immigration and Naturalization Service (INS) in its administration of the SAW program. We hold that given the absence of clear congressional language mandating preclusion of federal jurisdiction and the nature of respondents’ requested relief, the District Court had jurisdiction to hear respondents’ constitutional and statutory challenges to INS procedures. Were we to hold otherwise and instead require respondents to avail themselves of the limited judicial review procedures set forth in § 210(e) of the INA, meaningful judicial review of their statutory and constitutional claims would be foreclosed.

I

The Reform Act provided three important benefits to an applicant for SAW status. First, the mere filing of a “non-frivolous application” entitled the alien to a work authorization that would remain valid during the entire period that the application was being processed. See 8 U. S. C. § 1160(d)(2)(B). Second, regardless of the disposition of the application, the Reform Act expressly prohibited the Government from using any information in the application for enforcement purposes. Thus, the application process could not be used as a means of identifying deportable aliens; rather, the initiation of a deportation proceeding had to be based on evidence obtained from an independent source. See § 1160(b)(6). Third, if SAW status was granted, the alien became a lawful temporary resident, see § 1160(a)(1), and, in due course, could obtain the status of a permanent resident, see § 1160(a)(2).

In recognition that the fear of prosecution or deportation would cause many undocumented aliens to be reluctant to come forward and disclose their illegal status, the Reform Act directed the Attorney General to enlist the assistance of a variety of nonfederal organizations to encourage aliens to apply and to provide them with counsel and assistance during the application process. These “qualified . . . designated entities” (QDE’s), which included private entities such as farm labor organizations and associations of agricultural employers as well as qualified state, local, and community groups, were not allowed to forward applications for SAW status to the Attorney General unless the applicant consented. See §§ 1160(b)(2), (b)(4).

The Reform Act provided that SAW status applications could be filed with a specially created legalization office (LO), or with a QDE, which would forward applications to the appropriate LO, during an 18-month period commencing on June 1, 1987. See § 1160(b)(1)(A). Regulations adopted by the INS to administer the program provided for' a personal interview of each applicant at an LO. See 8 CFR § 210.2(c) (2)(iv) (1990). In the application, the alien had to prove by a preponderance of the evidence that he or she worked the requisite 90 days of qualifying seasonal agricultural services. See §§ 210.3(a), (b)(1). To meet the burden of proof, the applicant was required to present evidence of eligibility independent of his or her own testimony. See § 210.3(b)(2). The applicant could meet this burden through production of his or her employer’s payroll records, see 8 U. S. C. § 1160(b) (3)(B)(ii), or through submission of affidavits “by agricultural producers, foremen, farm labor contractors, union officials, fellow employees, or other persons with specific knowledge of the applicant’s employment,” see 8 CFR §210.3(c)(3) (1990). At the conclusion of the interview and of the review of the application materials, the LO could deny the application or make a recommendation to a regional processing facility that the application be either granted or denied. See §210.1(q). A denial, whether at the regional or local level, could be appealed to the legalization appeals unit, which was authorized to make the final administrative decision in each individual case. See § 103.3(a)(2)(iii).

The Reform Act expressly prohibited judicial review of such a final administrative determination of SAW status except as authorized by § 210(e)(3)(A) of the amended INA. That subsection permitted “judicial review of such a denial only in the judicial review of an order of exclusion or deportation.” In view of the fact that the courts of appeals constitute the only fora for judicial review of deportation orders, see 75 Stat. 651, as amended, 8 U. S. C. § 1105a, the statute plainly foreclosed any review in the district courts of individual denials of SAW status applications. Moreover, absent initiation of a deportation proceeding against an unsuccessful applicant, judicial review of such individual determinations was completely foreclosed.

r-H I — I

This action was filed in the District Court for the Southern District of Florida by the Haitian Refugee Center, the Migration and Refugee Services of the Roman Catholic Diocese of Palm Beach, and 17 unsuccessful individual SAW applicants. The plaintiffs sought relief on behalf of a class of alien farmworkers who either had been or would be injured by unlawful practices and policies adopted by the INS in its administration of the SAW program. The complaint alleged that the interview process was conducted in an arbitrary fashion that deprived applicants of the due process guaranteed by the Fifth Amendment to the Constitution. Among other charges, the plaintiffs alleged that INS procedures did not allow SAW applicants to be apprised of or to be given opportunity to challenge adverse evidence on which denials were predicated, that applicants were denied the opportunity to present witnesses on their own behalf, that non-English speaking Haitian applicants were unable to communicate effectively with LO’s because competent interpreters were not provided, and that no verbatim recording of the interview was made, thus inhibiting even any meaningful administrative review of application denials by LO’s or regional processing facilities. See App. 44-45; Haitian Refugee Center, Inc. v. Nelson, 694 F. Supp. 864, 867 (SD Fla. 1988).

After an evidentiary hearing, the District Court ruled that it had jurisdiction, that the case should proceed as a class action, and that a preliminary injunction should issue. The court recognized that individual aliens could not contest the denial of their SAW applications “unless and until the INS in-stitut[ed] deportation proceedings against them,” but accepted jurisdiction because the complaint “does not challenge any individual determination of any application for SAW status but rather attacks the manner in which the entire program is being implemented, allegations beyond the scope of administrative review.” On the merits, the District Court found that a number of INS practices violated the Reform Act and were unconstitutional, and entered an injunction requiring the INS to vacate large categories of denials, and to modify its practices in certain respects.

The Court of Appeals affirmed. On the merits, it upheld all of the findings and conclusions of the District Court, and it also rejected each of the Government’s jurisdictional arguments. Relying on earlier Circuit precedent, it held that the statutory bar to judicial review of individual determinations was inapplicable:

“In Jean v. Nelson, 727 F. 2d 957 (11th Cir. 1984) (in banc), aff’d, 472 U. S. 846 . . . (1985), we reaffirmed that section 106 of the INA (Codified at 8 U. S. C. § 1105a) does not deprive district courts of jurisdiction to review allegations of systematic abuses by INS officials. Jean, 727 F. 2d at 980. We explained that to postpone ‘judicial resolution of a disputed issue that affects an entire class of aliens until an individual petitioner has an opportunity to litigate it on habeas corpus would foster the very delay and procedural redundancy that Congress sought to eliminate in passing § 1105a.’ Id. In this action, appellees do not challenge the merits of any individual status determination; rather . . . they contend that defendants’ policies and practices in processing SAW applications deprive them of their statutory and constitutional rights.” Haitian Refugee Center, Inc. v. Nelson, 872 F. 2d 1555, 1560 (CA11 1989).

In their certiorari petition, petitioners did not seek review of the District Court’s rulings on the merits or the form of its injunctive relief. Our grant of certiorari is therefore limited to the jurisdictional question.

h — I I — I

We preface our analysis of petitioners position with an identification of matters that are not in issue. First, it is undisputed that SAW status is an important benefit for a previously undocumented alien. This status not only protects the alien from deportation; it also creates job opportunities that are not available to an alien whose application is denied. Indeed, the denial of SAW status places the alien in an even worse position than he or she was in before the Reform Act was passed because lawful employment opportunities are no longer available to such persons. Thus, the successful applicant for SAW status acquires a measure of freedom to work and to live openly without fear of deportation or arrest that is markedly different from that of the unsuccessful applicant. Even disregarding the risk of deportation, the impact of a denial on the opportunity to obtain gainful employment is plainly sufficient to mandate constitutionally fair procedures in the application process. At no time in this litigation have petitioners asserted a right to employ arbitrary procedures, or questioned their obligation to afford SAW status applicants due process of law.

Nor, at this stage of the litigation, is there any dispute that the INS routinely and persistently violated the Constitution and statutes in processing SAW applications. Petitioners do not deny that those violations caused injury in fact to the two organizational plaintiffs as well as to the individual members of the plaintiff class. Although it does not do so explicitly, petitioners’ argument assumes that the District Court would have federal-question jurisdiction over the entire case if Congress had not, through the Reform Act, added § 210(e) to the INA. The narrow issue, therefore, is whether § 210(e), which bars judicial review of individual determinations except in deportation proceedings, also forecloses this general challenge to the INS’ unconstitutional practices.

IV

Petitioners’ entire jurisdictional argument rests on their view that respondents’ constitutional challenge is an action seeking “judicial review of a determination respecting an application for adjustment of status” and that district court jurisdiction over the action is therefore barred by the plain language of § 210(e)(1) of the amended INA. See 8 U. S. C. § 1160(e)(1). The critical words in § 210(e)(1), however, describe the provision as referring only to review “of a determination respecting an application” for SAW status (emphasis added). Significantly, the reference to “a determination” describes a single act rather than a group of decisions or a practice or procedure employed in making decisions. Moreover, when § 210(e)(3), see 8 U. S. C. § 1160(e)(3), further clarifies that the only judicial review permitted is in the context of a deportation proceeding, it refers to “judicial review of such a denial” — again referring to a single act, and again making clear that the earlier reference to “a determination respecting an application” describes the denial of an individual application. We therefore agree with the District Court’s and the Court of Appeals’ reading of this language as describing the process of direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications.

This reading of the Reform Act’s review provision is supported by the language in § 210(e)(3)(B) of the INA, which provides that judicial review “shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.” 8 U. S. C. § 1160(e)(3)(B). This provision incorporates an assumption that the limited review provisions of § 210(e) apply only to claims that have been subjected to administrative consideration and that have resulted in the creation of an adequate administrative record. However, the record created during the SAW administrative review process consists solely of a completed application form, a report of medical examination, any documents or affidavits that evidence an applicant’s agricultural employment and residence, and notes, if any, from an LO interview — all relating to a single SAW applicant. Because the administrative appeals process does not address the kind of procedural and constitutional claims respondents bring in this action, limiting judicial review of these claims to the procedures set forth in § 210(e) is not contemplated by the language of that provision.

Moreover, the “abuse-of-discretion” standard of judicial review under § 210(e)(3)(B) would make no sense if we were to read the Reform Act as requiring constitutional and statutory challenges to INS procedures to be subject to its specialized review provision. Although the abuse-of-discretion standard is appropriate for judicial review of an administrative adjudication of the facts of an individual application for SAW status, such a standard does not apply to constitutional or statutory claims, which are reviewed de novo by the courts.' The language of § 210(e)(3)(B) thus lends substantial credence to the conclusion that the Reform Act’s review provision does not apply to challenges to INS' practices and procedures in administering the SAW program.

Finally, we note that had Congress intended the limited review provisions of § 210(e) of the INA to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congréss could, for example, have modeled § 210(e) on the more expansive language in the general grant of district court jurisdiction under Title II of the INA by channeling into the Reform Act’s special review procedures “all causes . . . arising under any of the provisions” of the legalization program. 66 Stat. 230, 8 U. S. C. § 1329. It moreover could have modeled § 210(e) on 38 U. S. C. § 211(a), which governs review of veterans’ benefits claims, by referring to review “on all questions of law and fact” under the SAW legalization program.

Given Congress’ choice of statutory language, we conclude that challenges to the procedures used by INS do not fall within the scope of § 210(e). Rather, we hold that § 210(e) applies only to review of denials of individual SAW applications. Because respondents’ action does not seek review on the merits of a denial of a particular application, the District Court’s general federal-question jurisdiction under 28 U. S. C. §1331 to hear this action remains unimpaired by § 210(e).

V

Petitioners place their principal reliance on our decision in Heckler v. Ringer, 466 U. S. 602 (1984). The four respondents in Ringer wanted to establish a right to reimbursement under the Medicare Act for a particular form of surgery that three of them had undergone and the fourth allegedly needed. They sought review of the Secretary’s policy of refusing reimbursement for that surgery in an original action filed in the District Court, without exhausting the procedures specified in the statute for processing reimbursement claims. The District Court dismissed the case for lack of jurisdiction because the essence of the complaint was a claim of entitlement to payment for the surgical procedure. With respect to the three respondents who had had the surgery, we concluded that “it makes no sense” to construe their claims “as anything more than, at bottom, a claim that they should be paid for their BCBR [bilateral carotid body resection] surgery,” id., at 614, since success in their challenge of the Secretary’s policy denying reimbursement would have the practical effect of also deciding their claims for benefits on the merits. “Indeed,” we noted, “the relief that respondents seek to redress their supposed ‘procedural’ objections is the invalidation of the Secretary’s current policy and a ‘substantive.’ declaration from her that the expenses of BCBR surgery are reimbursable under the Medicare Act.” Ibid. Concluding that respondents’ judicial action was not “collateral” to their claims for benefits, we thus required respondents first to pursue their administrative remedies. In so doing, we found it significant that respondents, even if unsuccessful before the agency, “clearly have an adequate remedy in § 405(g) for challenging [in the courts] all aspects of the Secretary’s denial of their claims for payment for the BCBR surgery.” Id., at 617.

Unlike the situation in Heckler, the individual respondents in this action do not seek a substantive declaration that they are entitled to SAW status. Nor would the fact that they prevail on the merits of their purportedly procedural objections have the effect of establishing their entitlement to SAW status. Rather, if allowed to prevail in this action, respondents would only be entitled to have their case files reopened and their applications reconsidered in light of the newly prescribed INS procedures.

Moreover, unlike in Heckler, if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures notwithstanding the review provisions of § 210(e) of the amended IN A. It is presumable that Congress legislates with knowledge of our basic rules of statutory construction, and given our well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action, see Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670 (1986), coupled with the limited review provisions of § 210(e), it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review.

Several aspects of this statutory scheme would preclude review of respondents’ application denials if we were to hold that the District Court lacked jurisdiction to hear this challenge. Initially, administrative or judicial review of an agency decision is almost always confined to the record made in the proceeding at the initial decisionmaking level, and one of the central attacks on INS procedures in this litigation is based on the claim that such procedures do not allow applicants to assemble adequate records. As the District Court found, because of the lack of recordings or transcripts of LO interviews and the inadequate opportunity for SAW applicants to call witnesses or present other evidence on their behalf, the administrative appeals unit of the INS, in reviewing the decisions of LO's and regional processing facilities, and the courts of appeals, in reviewing SAW denials in the context of deportation proceedings, have no complete or meaningful basis upon which to review application determinations.

Additionally, because there is no provision for direct judicial review of the denial of SAW status unless the alien is later apprehended and deportation proceedings are initiated, most aliens denied SAW status can ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a complete denial of judicial review for most undocumented aliens.

Finally, even in the context of a deportation proceeding, it is unlikely that a court of appeals would be in a position to provide meaningful review of the type of claims raised in this litigation. To establish the unfairness of the INS practices, respondents in this case adduced a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application. Not only would a court of appeals reviewing an individual SAW determination therefore most likely not have an adequate record as to the pattern of INS’ allegedly unconstitutional practices, but it also would lack the factfinding and record-developing capabilities of a federal district court. As the American Bar Association as amicus points out, statutes that provide for only a single level of judicial review in the courts of appeals “are traditionally viewed as warranted only in circumstances where district court factfinding would unnecessarily duplicate an adequate administrative record — circumstances that are not present in ‘pattern and practice’ cases where district court factfinding is essential [given the inadequate administrative record].” Brief for American Bar Association as Amicus Curiae 7. It therefore seems plain to us, as it did to the District Court and the Court of Appeals, that restricting judicial review to the courts of appeals as a component of the review of an individual deportation order is the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.

Decision in this case is therefore supported by our unanimous holding in Bowen, supra. In that case we rejected the Government’s contention that two sections of the Social Security Act, 42 U. S. C. §301 et seq. (1982 ed.), barred judicial review of the validity of a regulation governing the payment of Medicare benefits. We recognized that review of individual determinations of the amount due on particular claims was foreclosed, but upheld the collateral attack on the regulation itself, emphasizing the critical difference between an individual “amount determination” and a challenge to the procedures for making such determinations:

“The reticulated statutory scheme, which carefully details the forum and limits of review of ‘any determination . . . of . . . the amount of benefits under part A,’ 42 U. S. C. § 1395ff(b)(l)(C) (1982 ed., Supp. II), and of the ‘amount of . . . payment’ of benefits under Part B, 42 U. S. C. § 1395u(b)(3)(C), simply does not speak to challenges mounted against the method by which such amounts are to be determined rather than the determinations themselves. As the Secretary has made clear, ‘the legality, constitutional or otherwise, of any provision of the Act or regulations relevant to the Medicare Program’ is not considered in a ‘fair hearing’ held by a carrier to resolve a grievance related to a determination of the amount of a Part B award. As a result, an attack on the validity of a regulation is not the kind of administrative action that we described in Erika as an ‘amount determination’ which decides ‘the amount of the Medicare payment to be made on a particular claim’ and with respect to which the Act impliedly denies judicial review. 456 U. S., at 208.” 476 U. S., at 675-676 (emphasis in original).

Inherent in our analysis was the concern that absent such a construction of the judicial review provisions of the Medicare statute, there would be “no review at all of substantial statutory and constitutional challenges to the Secretary’s administration of Part B of the Medicare program.” Id., at 680.

As we read the Reform Act and the findings of the District Court, therefore, this case is controlled by Bowen rather than by Heckler. The strong presumption in favor of judicial review of administrative action is not overcome either by the language or the purpose of the relevant provisions of the Reform Act.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Scalia joins, dissenting.

Congress has carefully limited the judicial review available under the Immigration Reform and Control Act of 1986 (Reform Act) in language which “he who runs may read.” The Court, with considerable and obvious effort, finds a way to avoid this limitation, because to apply the statute as written could bar judicial review of respondents’ constitutional claims. The statute as written is, in my view, constitutional, and there is therefore no need to rewrite it.

I — I

The relevant provisions of the Reform Act dealing with administrative and judicial review are found in 8 U. S. C. § 1160(e):

“(1) Administrative and judicial review
“There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
“(2) Administrative review
“(A) Single level of administrative appellate review
“The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination
“(3) Judicial review
“(A) Limitation to review of exclusion or deportation
“There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 1105a of this title.”

The first of the quoted sentences states, as clearly as any language can, that judicial review of a “determination respecting an application for adjustment of status under this section” may not be had except in accordance with the provisions of the subsection. The plain language of subsection (3)(A) provides that judicial review of a denial may be had only in connection with review of an order of exclusion or deportation. The Court chooses to read this language as dealing only with “direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications.” Ante, at 492. But the accepted view of judicial review of administrative action generally— even when there is no express preclusion provision as there is in the present statute — is that only “final actions” are reviewable in court. The Administrative Procedure Act provides:

“[Fjinal agency action for which there is no other adequate remedy in a court [is] subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly re viewable is subject to review on the review of the final agency action.” 5 U. S. C. §704.

The Court’s reasoning is thus a classic non sequitur. It reasons that because Congress limited judicial review only of what were in effect final administrative decisions, it must not have intended to preclude separate challenges to procedures used by the agency before it issued any final decision. But the type of judicial review of agency action which the Court finds that Congress failed to preclude is a type not generally available even without preclusion. In the light of this settled rule, the natural reading of “determination respecting an application” in § 1160(e) encompasses both final decisions and procedures used to reach those decisions. Each of respondents’ claims attacks the process used by Immigration and Naturalization Service (INS) to make a determination respecting an application.

We have on several occasions rejected the argument advanced by respondents that individual plaintiffs can bypass restrictions on judicial review by purporting to attack general policies rather than individual results. For instance, in United States v. Erika, Inc., 456 U. S. 201 (1982), we found that in the context of the “precisely drawn provisions” of the Medicare statute, the provision of judicial review for awards made under Part A of the statute, coupled with the omission of judicial review for awards under Part B, “provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims.” Id., at 208 (citations omitted). Similarly, in Heckler v. Ringer, 466 U. S. 602 (1984), we addressed a challenge to a ruling issued by the Secretary of Health and Human Services that precluded payment under Medicare for a particular medical procedure. The Medicare Act permits judicial review of “any claim arising under” the Act, 42 U. S. C. §§405(g), (h), only after a claimant seeks payment and exhausts administrative remedies. The plaintiffs contended that their lawsuits challenging the Secretary’s refusal to reimburse the procedure at issue were permissible without exhausting administrative remedies because they challenged only the Secretary’s “ ‘procedure’ for reaching her decision,” not the underlying decision on their particular claims. 466 U. S., at 614. We rejected this distinction, finding that “it makes no sense to construe the claims ... as anything more than, at bottom, a claim that they should be paid for their . . . surgery.” Ibid. This holding was based on the recognition that a contrary result would allow claimants “to bypass the exhaustion requirements of the Medicare Act by simply bringing declaratory judgment actions in federal court before they undergo the medical procedure in question.” Id., at 621. We expressly rejected the contention — also urged by the respondents here — that “simply because a claim somehow can be construed as ‘procedural,’ it is cognizable in federal district court by way of federal-question jurisdiction.” Id., at 614.

It is well settled that when Congress has established a particular review mechanism, courts are not free to fashion alternatives to the specified scheme. See United States v. Fausto, 484 U. S. 439, 448-449 (1988); Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U. S. 411, 419-422 (1965). In creating the Reform Act and the SAW program, Congress balanced the goals of the unprecedented amnesty programs with the need “to insure reasonably prompt determinations” in light of the incentives and opportunity for ineligible applicants to delay the disposition of their cases and derail the program. The Court’s ponderously reasoned gloss on the statute’s plain language sanctions an unwarranted intrusion into a carefully drafted congressional program, a program which placed great emphasis on a minimal amount of paperwork and procedure in an effort to speed the process of adjusting the status of those aliens who demonstrated their entitlement to adjustment. “If the balance is to be struck anew, the decision must come from Congress and not from this Court. ” Ringer, supra, at 627.

II

The Court bases its conclusion that district courts have jurisdiction to entertain respondents’ pattern and practice allegations in part out of respect for the “strong presumption” that Congress intends judicial review of administrative action. Ante, at 498. This presumption, however, comes into play only where there is a genuine ambiguity as to whether Congress intended to preclude judicial review of administrative action. In this case two things are evident: First, in drafting the Reform Act, Congress did not preclude all judicial review of administrative action; as detailed earlier, Congress provided for judicial review of INS action in the courts of appeals in deportation proceedings, and in the district courts in orders of exclusion. Second, by enacting such a scheme, Congress intended to foreclose all other avenues of relief. Therefore, since the statute is not ambiguous, the presumption has no force here.

The Court indicates that this presumption of judicial review is particularly applicable in cases raising constitutional challenges to agency action. Ante, at 496-499. I believe that Congress intended to preclude judicial review of such claims in this instance, and that in this context it is permissible for it to do so.

In the Reform Act, Congress enacted a one-time amnesty program to process claims of illegal aliens allowing them to obtain status as lawful residents. Congress intended aliens to come forward during the limited, 12-month eligibility period because “[t]his is the first call and the last call, a one-shot deal.” 132 Cong. Rec. 33217 (1986) (remarks of Sen. Simpson). If an alien failed to file a legalization application within the 12-month period, the opportunity was lost forever. To further expedite this unique and unprecedented amnesty program and to minimize the burden on the federal courts, Congress provided for limited judicial review.

Given the structure of the Act, and the status of these alien respondents, it is extremely doubtful that the operation of the administrative process in their cases would give rise to any colorable constitutional claims. ‘“An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare.’” INS v. Pangilinan, 486 U. S. 875, 884 (1988) (quoting United States v. Ginsberg, 243 U. S. 472, 474 (1917)).

Respondents are undoubtedly entitled to the benefit of those procedures which Congress has accorded them in the Reform Act. But there is no reason to believe that administrative appeals as provided in the Act — which simply have not been resorted to by these respondents before suing in the District Court — would not have assured them compliance with statutory procedures. The Court never mentions what colorable constitutional claims these aliens, illegally present in the United States, could have had that demand judicial review. The most that can be said for respondents’ case in this regard is that it is conceivable, though not likely, that the administrative processing of their claims could be handled in such a way as to deny them some constitutional right, and that the remedy of requesting deportation in order to obtain judicial review is a burdensome one. We have never held, however, that Congress may not, by explicit language, preclude judicial review of constitutional claims, and here, where that body was obviously interested in expeditiously processing an avalanche of claims from noncitizens upon whom it was conferring a substantial benefit, I think it may do so.

      JusTiCE White joins only Parts I, II, III, and IV of this opinion.

      Pub. L. 99-603, 100 Stat. 3359.

       Prior to November 6, 1986, the enactment date of the Reform Act, the employment of undocumented aliens did not violate federal law. See 66 Stat. 228, as amended, 8 U. S. C. § 1324(a) (1982 ed.) (providing that “for the purposes of this section [criminalizing the bringing in and harboring of aliens not lawfully entitled to enter and reside in the United States], employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring”). Section 101 of the Reform Act, however, authorized both civil and criminal penalties against employers who hire unauthorized aliens either knowingly or without complying with specified verification requirements. See 8 U. S. C. § 1324a.

       Section 121 of the Reform Act amended several federal programs to deny benefits to aliens who could not verify their lawful status. See Pub. L. 99-603, 100 Stat. 3384-3394.

       The House Committee noted the purpose behind the legalization programs in the Reform Act:
      “The United States has a large undocumented alien population living and working within its borders. Many of these people have been here for a number of years and have become a part of their communities. Many have strong family ties here which include U. S. citizens and lawful residents. They have built social networks in this country. They have contributed to the United States in myriad ways, including providing their talents, labor and tax dollars. However, because of their undocumented status, these people live in fear, afraid to seek help when their rights are violated, when they are victimized by criminals, employers or landlords or when they become ill.
      “Continuing to ignore this situation is harmful to both the United States and the aliens themselves. However, the alternative of intensifying interior enforcement or attempting mass deportations would be both costly, ineffective, and inconsistent with our immigrant heritage.
      “The Committee believes that the solution lies in legalizing the statuts [sic] of aliens who have been present in the United States for several years, recognizing that past failures to enforces [sic] the immigration laws have allowed them to enter and to settle here.
      “This step would enable INS to target its enforcement efforts on new flows of undocumented aliens and, in conjunction with the proposed employer sanctions programs, help stem the flow of undocumented people to the United States. It would allow qualified aliens to contribute openly to society and it would help to prevent the exploitation of this vulnerable population in the work place.” H. R. Rep. No. 99 — 682, pt. 1, p. 49 (1986).

       Senator Simpson, one of the sponsors of the Reform Act, described the vulnerability of this “subculture of human beings who are afraid to go to the cops, afraid to go to a hospital, afraid to go to their employer who says ‘One peep out of you, buster, and you are down the road.’” 132 Cong. Rec. 33222 (1986).

      The full text of § 210(e) of the INA, as set forth in 8 U. S. C. § 1160(e), reads as follows:
      “(e) Administrative and judicial review
      “(1) Administrative and judicial review
      “There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
      “(2) Administrative review
      “(A) Single level of administrative appellate review
      “The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
      “(B) Standard for review
      “Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
      “(3) Judicial review
      “(A) Limitation to review of exclusion or deportation
      “There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 1106a of this title.
      “(B) Standard for judicial review
      “Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.”

       The complaint alleges that this respondent has the following interest in the litigation:
      “Plaintiff MIGRATION AND REFUGEE SERVICES OF THE ROMAN CATHOLIC DIOCESE OF PALM BEACH (“RCDPB”) is a component of the Roman Catholic Diocese of Palm Beach. Its principle [sic] place of business is West Palm Beach, Florida. Many members of parishes within the diocese of Palm Beach are foreign agricultural workers who worked at least 90 man-days in the 1985 and 1986 season, and are therefore potentially eligible for the SAW program. In addition, Plaintiff MIGRATION AND REFUGEE SERVICES OF THE RCDPB has been designated by Defendant INS as a “Qualified Designated Entity” (QDE) under IRCA. QDE’s are authorized to provide counseling to aliens about the legalization program, to assist them in filling out applications and obtain documentation, and receive applications for adjustment to temporary resident status. Under IRCA, applications filed with a QDE are deemed to have been filed as of the same date with INS, to whom the QDE’s forward the applications for processing. QDE’s are authorized to receive fees from applicants and reimbursement from INS for counseling and filing services. The actions of Defendants complained of in this case discourages otherwise eligible SAW applicants from seeking counseling and filing of their applications by Plaintiffs MIGRATION AND REFUGEE SERVICES OF THE RCDPB and prevents them from fulfilling its basic mission of assisting aliens to qualify under IRCA.” App. 24.

        Haitian Refugee Center, Inc. v. Nelson, 694 F. Supp. 864, 873 (SD Fla. 1988). The District Court also found that both of the organizational plaintiffs had standing. It explained:
      “HRC has alleged that the ‘[defendants’ refusal to recognize that such persons [HRC’s members] are eligible under IRCA both directly and indirectly injures HRC. It directly injures the organization because it makes HRC’s work of assisting the Haitian refugee community more difficult and results in the diversion of HRC’s limited resources away from members and clients having other urgent needs.’ Complaint at ¶ 17. HRC also alleges an indirect injury through the adverse effect upon its members. Id. The plaintiff MRS is a QDE under IRCA authorized to provide counseling to aliens about the legalization process and to assist them in obtaining documentation. It also receives applications and fees from aliens and is reimbursed by the INS for counseling and filing services. MRS alleges that the defendants’ behavior has discouraged otherwise eligible SAW applicants from seeking counseling and/or filing their claims and MRS is prevented from fulfilling its basic mission of assisting aliens to qualify under IRCA.” Id., at 874-876.

       Although many employers did not maintain payroll records for seasonal workers, some LO’s routinely denied applications that were not supported by such records. The District Court found that the INS maintained a secret list of employers whose supporting affidavits were routinely discredited without giving applicants an opportunity to corroborate the af-fiants’ statements. See id., at 871-872. The District Court moreover found that interpreters were not provided at LO interviews, even though many Haitian applicants spoke only Creole and no personnel in a particular LO understood that language, and that no recordings or transcripts of LO interviews were made, despite the fact that the interview “is the only face to face encounter between the applicant and the INS allowing the INS to assess the applicant’s credibility.” See id., at 869.

       The preliminary injunction provides in part:
      “(3) In those cases which the INS denied based in whole or in part on the fact that the applicant failed to submit payroll records or piecework receipts, the INS shall vacate the denials and reconsider the cases in light of the proper standard of proof which will require the government to present evidence to negate the just and reasonable inference created by the affidavits and other documents submitted by the applicant;
      “(4) The INS shall vacate those denials issued by the Legalization Offices during the period June 1, 1987, to March 29, 1988, unless the government can show that the applications were clearly frivolous based upon the documentation submitted by the applicant or that the applicant admitted fraud or misrepresentation in the application process.” Id., at 881.

       The preliminary injunction entered by the District Court ordered the INS to institute the following procedures:
      “(6) The Legalization Offices shall maintain competent translators, at a minimum, in Spanish and Haitian Creole, and translators in other languages shall be made available if necessary;
      “(7) The INS shall afford the applicants the opportunity to present witnesses at the interview including but not limited to growers, farm labor contractors, co-workers, and any other individuals who may offer testimony in support of the applicant;
      “(8) The interviewers shall be directed to particularize the evidence offered, testimony taken, credibility determinations, and any other relevant information on the form 1-696.” Ibid.

       As petitioners state in their brief:
      “The Act declares in all-encompassing terms: ‘There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.’ 8 U. S. C. 1160(e)(1). In the following paragraphs, the subsection spells out the precise procedures intended to provide the exclusive method of review. The subsection requires the establishment of ‘a single level of administrative appellate review of such a determination,’ and unequivocally states that ‘[tjhere shall be judicial review of such a denial [of a SAW application] only in the judicial review of an order of exclusion or deportation under section 1105a of this title.’ 8 U. S. C. 1160(e)(2)(A) and (e)(3)(A). Section 1105a(a), in turn, provides that a petition for review in the court of appeals ‘shall be the sole and exclusive procedure for[ ] the judicial review of all final orders of deportation,’ while exclusion orders are reviewable exclusively in habeas corpus proceedings. 8U. S. C. 1105a(b). Congress could hardly have chosen clearer or more forceful language to express its intention to preclude any judicial review of a ‘determination respecting an application’ for SAW status, other than in the specified review proceedings applicable to individual deportation or exclusion orders.
      “In light of IRCA’s clear directions, district courts are not free to draw on their federal question jurisdiction under 28 U. S. C. 1331, or on their jurisdiction granted under the immigration laws, 8 U. S. C. 1329, to entertain collateral attacks on procedures used to adjudicate SAW applications. The exercise of either source of general power is barred by the precise and specific language of IRC A.” Brief for Petitioners 11-13 (footnotes omitted).

       The Court in Heckler also concluded that the fourth respondent’s claim was “essentially one requesting the payment of benefits for BCBR surgery, a claim cognizable only under § 405(g),” 466 U. S., at 620, and held that the “claim for future benefits must be construed as a ‘claim arising under’ the Medicare Act because any other construction would allow claimants substantially to undercut Congress’ carefully crafted scheme for administering the Medicare Act.” Id,., at 621.

      Then-JuSTiCE Rehnquist did not participate in the case.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Stevens,

license: Public Domain

text:
    OKLAHOMA TAX COMMISSION v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA
    No. 89-1322.
    Argued January 7, 1991
    Decided February 26, 1991

      Rehnquist, C. J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, post, p. 514.

      David Allen Miley argued the cause for petitioner. With him on the briefs was Joe Mark Elkouri.

      Edwin S. Kneedler argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Starr, Assistant Attorney General Stewart, Deputy Solicitor General Wallace, and Robert L. Klarquist.

      Michael Minnis argued the cause for respondent. With him on the brief was G. Lindsay Simmons

      Briefs of amici curiae urging affirmance were filed for the Cheyenne-Arapaho Tribes of Oklahoma et al. by Melody L. McCoy, Yvonne Teresa Knight, Kim Jerome Gottschalk, Reid P. Chambers, Jeanne S. Whiteing, Robert S. Thompson III, Thomas W. Fredericks, Bertram E. Hirsch, and Jack F. Trope; for the Inter-Tribal Council of the Five Civilized Tribes by Bob Rabón; for the Iroquois Businesspersons Association by Joseph E. Zdarsky; for the Sac and Fox Nation et al. by G. William Rice and Gregory H. Bigler; and for the Seneca-Cayuga Tribe of Oklahoma et al. by Glenn M. Feldman.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The issue presented in this case is whether a State that has not asserted jurisdiction over Indian lands under Public Law 280 may validly tax sales of goods to tribesmen and nonmembers occurring on land held in trust for a federally recognized Indian tribe. We conclude that under the doctrine of tribal sovereign immunity, the State may not tax such sales to Indians, but remains free to collect taxes on sales to nonmembers of the tribe.

Respondent, the Citizen Band Potawatomi Indian Tribe of Oklahoma (Potawatomis or Tribe), owns and operates a convenience store in Oklahoma on land held in trust for it by the Federal Government. For many years, the Potawatomis have sold cigarettes at the convenience store without collecting Oklahoma’s state cigarette tax on these sales. In 1987, petitioner, the Oklahoma Tax Commission (Oklahoma or Commission), served the Potawatomis with an assessment letter, demanding that they pay $2.7 million for taxes on cigarette sales occurring between 1982 and 1986. The Potawato-mis filed suit to enjoin the assessment in the United States District Court for the Western District of Oklahoma.

Oklahoma counterclaimed, asking the District Court to enforce its $2.7 million claim against the Tribe and to enjoin the Potawatomis from selling cigarettes in the future without collecting and remitting state taxes on those sales. The Pota-watomis moved to dismiss the counterclaim on the ground that the Tribe had not waived its sovereign immunity and therefore could not be sued by the State. The District Court denied the Potawatomis’ motion to dismiss and proceeded to trial. On the merits, the District Court concluded that the Commission lacked the authority to tax the on-reservation cigarette sales to tribal members or to tax the Tribe directly. It held, therefore, that the Tribe was immune from Oklahoma’s suit to collect past unpaid taxes directly from the Tribe. Nonetheless, the District Court held that Oklahoma could require the Tribe to collect taxes prospectively for on-reservation sales to nonmembers of the Tribe. Accordingly, the court ordered the Tribe to collect taxes on sales to non-tribal members, and to comply with all statutory recordkeep-ing requirements.

The Tribe appealed the District Court’s denial of its motion to dismiss and the court’s order requiring it to collect and remit taxes on sales to nonmembers. The United States Court of Appeals for the Tenth Circuit reversed. 888 F. 2d 1303 (1989). That court held that the District Court erred in entertaining Oklahoma’s counterclaims because the Potawa-tomis enjoy absolute sovereign immunity from suit, and had not waived that immunity by filing an action for injunctive relief. The Court of Appeals further held that Oklahoma lacked the authority to impose a tax on any sales that occur on the reservation, regardless of whether they are to tribesmen or nonmembers. It concluded that “because the convenience store is located on land over which the Potawatomis retain sovereign powers, Oklahoma has no authority to tax the store’s transactions unless Oklahoma has received an independent jurisdictional grant of authority from Congress.” Id., at 1306. Finding no independent jurisdictional grant of authority to tax the Potawatomis, the Court of Appeals ordered the District Court to grant the Potawatomis’ request for an injunction.

We granted certiorari to resolve an apparent conflict with this Court’s precedents and to clarify the law of sovereign immunity with respect to the collection of sales taxes on Indian lands. 498 U. S. 806 (1990). We now affirm in part and reverse in part.

I

Indian tribes are “domestic dependent nations” that exercise inherent sovereign authority over their members and territories. Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. Santa Clara Pueblo v. Martinez, 436 U. S. 49, 58 (1978). Petitioner acknowledges that Indian tribes generally enjoy sovereign immunity, but argues that the Potawato-mis waived their sovereign immunity by seeking an injunction against the Commission’s proposed tax assessment. It argues that, to the extent that the Commission’s counterclaims were “compulsory” under Federal Rule of Civil Procedure 13(a), the District Court did not need any independent jurisdictional basis to hear those claims.

We rejected an identical contention over a half-century ago in United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 511-512 (1940). In that case, a surety bondholder claimed that a federal court had jurisdiction to hear its state-law counterclaim against an Indian Tribe because the Tribe’s initial action to enforce the bond constituted a waiver of sovereign immunity. We held that a tribe does not waive its sovereign immunity from actions that could not otherwise be brought against it merely because those actions were pleaded in a counterclaim to an action filed by the tribe. Id., at 513. “Possessing . . . immunity from direct suit, we are of the opinion [the Indian nations] possess a similar immunity from cross-suits.” Ibid. Oklahoma does not argue that it received congressional authorization to adjudicate a counterclaim against the Tribe, and the case is therefore controlled by Fidelity & Guaranty. We uphold the Court of Appeals’ determination that the Tribe did not waive its sovereign immunity merely by filing an action for injunctive relief.

Oklahoma offers an alternative, and more far-reaching, basis for reversing the Court of Appeals’ dismissal of its counterclaims. It urges this Court to construe more narrowly, or abandon entirely, the doctrine of tribal sovereign immunity. Oklahoma contends that the tribal sovereign immunity doctrine impermissibly burdens the administration of state tax laws. At the very least, Oklahoma proposes that the Court modify Fidelity & Guaranty, because tribal business activities such as cigarette sales are now so detached from traditional tribal interests that the tribal-sovereignty doctrine no longer makes sense in this context. The sovereignty doctrine, it maintains, should be limited to the tribal courts and the internal affairs of tribal government, because no purpose is served by insulating tribal business ventures from the authority of the States to administer their laws.

A doctrine of Indian tribal sovereign immunity was originally enunciated by this Court and has been reaffirmed in a number of cases. Turner v. United States, 248 U. S. 354, 358 (1919); Santa Clara Pueblo v. Martinez, supra, at 58. Congress has always been at liberty to dispense with such tribal immunity or to limit it. Although Congress has occasionally authorized limited classes of suits against Indian tribes, it has never authorized suits to enforce tax assessments. Instead, Congress has consistently reiterated its approval of the immunity doctrine. See, e. g., Indian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. § 1451 et seq., and the Indian Self-Determination and Education Assistance Act, 88 Stat. 2203, 25 U. S. C. § 450 et seq. These Acts reflect Congress’ desire to promote the “goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development.” California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216 (1987). Under these circumstances, we are not disposed to modify the long-established principle of tribal sovereign immunity.

Finally, Oklahoma asserts that even if sovereign immunity applies to direct actions against tribes arising from activities on the reservation, that immunity should not apply to the facts of this case. The State contends that the Potawatomis’ cigarette sales do not, in fact, occur on a “reservation.” Relying upon our decision in Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), Oklahoma argues that the tribal convenience store should be held subject to state tax laws because it does not operate on a formally designated “reservation,” but on land held in trust for the Potawatomis. Neither Mesca-lero nor any other precedent of this Court has ever drawn the distinction between tribal trust land and reservations that Oklahoma urges. In United States v. John, 437 U. S. 634 (1978), we stated that the test for determining whether land is Indian country does not turn upon whether that land is denominated “trust land” or “reservation.” Rather, we ask whether the area has been “‘validly set apart for the use of the Indians as such, under the superintendence of the Government.’” Id., at 648-649; see also United States v. McGowan, 302 U. S. 535, 539 (1938).

Mescalero is not to the contrary; that case involved a ski resort outside of the reservation boundaries operated by the Tribe under a 30-year lease from the Forest Service. We said that “[ajbsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” 411 U. S., at 148-149. Here, by contrast, the property in question is held by the Federal Government in trust for the benefit of the Potawa-tomis. As in John, we find that this trust land is “validly set apart” and thus qualifies as a reservation for tribal immunity purposes. 437 U. S., at 649.

II

Oklahoma attacks the conclusion of the Court of Appeals that the sovereign immunity of the Tribe prevents it from being liable for the collection of state taxes on the sale of cigarettes to nonmembers of the Tribe. The Tribe, in turn, argues that this issue is not properly before us. It observes that the only issue presented in its prayer for an injunction was whether Oklahoma could require it to pay the challenged assessment for previously uncollected taxes. The complaint did not challenge Oklahoma’s authority to require the Tribe to collect the sales tax prospectively, and thus, the Tribe argues, that question was never put in issue.

We do not agree. The Tribe’s complaint alleged that Oklahoma lacked authority to impose a sales tax directly upon the Tribe. The District Court held that the Tribe could be required to collect the tax on sales to nonmembers. The Court of Appeals reversed the decision of the District Court on this point. While neither of these courts need have reached that question, they both did. The question is fairly subsumed in the “questions presented” in the petition for certiorari, and both parties have briefed it. We have the authority to decide it and proceed to do so. See Vance v. Terrazas, 444 U. S. 252, 258-259, n. 5 (1980).

Although the doctrine of tribal sovereign immunity applies to the Potawatomis, that doctrine does not excuse a tribe from all obligations to assist in the collection of validly imposed state sales taxes. Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980). Oklahoma argues that the Potawatomis’ tribal immunity notwithstanding, it has the authority to tax sales of cigarettes to nonmembers of the Tribe at the Tribe’s convenience store. We agree. In Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), this Court held that Indian retailers on an Indian reservation may be required to collect all state taxes applicable to sales to non-Indians. We determined that requiring the tribal seller to collect these taxes was a minimal burden justified by the State’s interest in assuring the payment of these concededly lawful taxes. Id., at 483. “Without the simple expedient of having the retailer collect the sales tax from non-Indian purchasers, it is clear that wholesale violations of the law by the latter class will go virtually unchecked.” Id., at 482. Only four years later we reiterated this view, ruling that tribal sellers are obliged to collect and remit state taxes on sales to nonmembers at Indian smoke-shops on reservation lands. Colville, supra.

The Court of Appeals thought this case was distinguishable from Moe and Colville. It observed the State of Washington had asserted jurisdiction over civil causes of action in Indian country as permitted by Public Law 280. Pub. L. 280, 67 Stat. 588, 28 U. S. C. § 1360. The court contrasted Colville to this case, in which Oklahoma disclaimed jurisdiction over Indian lands upon entering the Union and did not reassert jurisdiction over these lands pursuant to Public Law 280. The Court of Appeals concluded that because Oklahoma did not elect to assert jurisdiction under Public Law 280, the Pota-watomis were immune from any requirement of Oklahoma state tax law.

Neither Moe nor Colville depended upon the State’s assertion of jurisdiction under Public Law 280. Those cases stand for the proposition that the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe. Colville’s only reference to Public Law 280 relates to a concession that the statute did not furnish a basis for taxing sales to tribe members. 447 U. S., at 142, n. 8. Public Law 280 merely permits a State to assume jurisdiction over “civil causes of action” in Indian country. We have never held that Public Law 280 is independently sufficient to confer authority on a State to extend the full range of its regulatory authority, including taxation, over Indians and Indian reservations. Bryan v. Itasca County, 426 U. S. 373 (1976); see also Rice v. Rehner, 463 U. S. 713, 734, n. 18 (1983); Cabazon, 480 U. S., at 208-210, and n. 8. Thus, it is simply incorrect to conclude that Public Law 280 was the essential (yet unspoken) basis for this Court’s decision in Colville.

In view of our conclusion with respect to sovereign immunity of the Tribe from suit by the State, Oklahoma complains that, in effect, decisions such as Moe and Colville give them a right without any remedy. There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives. We have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State. See Ex parte Young, 209 U. S. 123 (1908). And under today’s decision, States may of course collect the sales tax from cigarette wholesalers, either by seizing unstamped cigarettes off the reservation, Colville, supra, at 161-162, or by assessing wholesalers who supplied unstamped cigarettes to the tribal stores, City Vending of Muskogee, Inc. v. Oklahoma Tax Comm’n, 898 F. 2d 122 (CA10 1990). States may also enter into agreements with the tribes to adopt a mutually satisfactory regime for the collection of this sort of tax. See 48 Stat. 987, as amended, 25 U. S. C. § 476. And if Oklahoma and other States similarly situated find that none of these alternatives produce the revenues to which they are entitled, they may of course seek appropriate legislation from Congress.

The judgment of the Court of Appeals is accordingly

Affirmed in part and reversed in part.

Justice Stevens,

concurring.

The doctrine of sovereign immunity is founded upon an anachronistic fiction. See Nevada v. Hall, 440 U. S. 410, 414-416 (1979). In my opinion all Governments — federal, state, and tribal — should generally be accountable for their illegal conduct. The rule that an Indian tribe is immune from an action for damages absent its consent is, however, an established part of our law. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 512-513 (1940). Nevertheless, I am not sure that the rule of tribal sovereign immunity extends to cases arising from a tribe’s conduct of commercial activity outside its own territory, cf. 28 U. S. C. § 1605(a) (“A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (2) in which the action is based upon a commercial activity carried on in the United States by a foreign state ...”), or that it applies to claims for prospective equitable relief against a tribe, cf. Edelman v. Jordan, 415 U. S. 651, 664-665 (1974) (Eleventh Amendment bars suits against States for retroactive monetary relief, but not for prospective injunctive relief).

In analyzing whether the Citizen Band Potawatomi Indian Tribe can be held prospectively liable for taxes on the sale of cigarettes, the Court today in effect acknowledges limits to a tribe’s sovereign immunity, although it does not do so explicitly. The Court affirms the Court of Appeals’ holding that the Oklahoma Tax Commission’s counterclaim against the Tribe was properly dismissed on grounds of the Tribe’s sovereign immunity, but then proceeds to address the precise question raised in the counterclaim — whether the Tribe in the future can be assessed for taxes on its sales of cigarettes. The Court indulges in this anomaly by reasoning that the issue of the Tribe’s prospective liability “is fairly subsumed” in the Tribe’s main action seeking to have the tax commission enjoined from collecting back taxes. See ante, at 512.

In my opinion, however, the issue of prospective liability is properly presented only in the tax commission’s counterclaim. It is quite possible to decide that the Tribe cannot be liable for past sales taxes which it never collected without going on to decide whether the tax commission may require the Tribe to collect state taxes on its sales in the first place. In my opinion the Court correctly reaches the issue of the Tribe’s prospective liability and correctly holds that the State may collect taxes on tribal sales to non-Indians. My purpose in writing separately is to emphasize that the Court’s holding in effect rejects the argument that this governmental entity — the Tribe — is completely immune from legal process. By addressing the substance of the tax commission’s claim for prospective injunctive relief against the Tribe, the Court today recognizes that a tribe’s sovereign immunity from actions seeking money damages does not necessarily extend to actions seeking equitable relief.


text:
    AIR COURIER CONFERENCE OF AMERICA v. AMERICAN POSTAL WORKERS UNION, AFL-CIO, et al.
    No. 89-1416.
    Argued November 28, 1990
    Decided February 26, 1991

      Rehnquist, C. J., delivered the opinion of the Court, in which White, O’ConnoR, Sc alia, Kennedy, and SouteR, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Marshall and Blackmun, JJ., joined, post, p. 531.

      L. Peter Farkas argued the cause for petitioner. With him on the briefs was James I. Campbell, Jr. Paul J. Lar-kin, Jr., argued the cause for the United States Postal Service, respondent under this Court’s Rule 12.4, in support of petitioner. With him on the briefs were Acting Solicitor General Roberts, Assistant Attorney General Gerson, Michael Jay Singer, and Jeffrica Jenkins Lee.

      Keith E. Secular argued the cause for respondents. With him on the brief were Anton G. Hajjar and Laurence Gold.

   Chief Justice Rehnquist

delivered the opinion of the Court.

This case requires us to decide whether postal employees are within the “zone of interests” of the group of statutes known as the Private Express Statutes (PES), so that they may challenge the action of the United States Postal Service in suspending the operation of the PES with respect to a practice of private courier services called “international remailing.” We hold that they are not.

Since its establishment, the United States Postal Service has exercised a monopoly over the carriage of letters in and from the United States. The postal monopoly is codified in the PES, 18 U. S. C. §§1693-1699 and 39 U. S. C. §§601-606. The monopoly was created by Congress as a revenue protection measure for the Postal Service to enable it to fulfill its mission. See Regents of Univ. of Cal. v. Public Employment Relations Bd., 485 U. S. 589, 598 (1988). It prevents private competitors from offering service on low-cost routes at prices below those of the Postal Service, while leaving the Service with high-cost routes and insufficient means to fulfill its mandate of providing uniform rates and service to patrons in all areas, including those that are remote or less populated. See J. Haldi, Postal Monopoly: An Assessment of the Private Express Statutes 9 (1974); Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering Commercial as Well as Personal Messages, 12 U. S. F. L. Rev. 57, 60, and n. 8 (1977).

A provision of the PES allows the Postal Service to “suspend [the PES restrictions] upon any mail route where the public interest requires the suspension.” 39 U. S. C. § 601(b). In 1979, the Postal Service suspended the PES restrictions for “extremely urgent letters,” thereby allowing overnight delivery of letters by private courier services. 39 CFR § 320.6 (1990); 44 Fed. Reg. 61178 (1979). Private courier services, including members of petitioner-intervenor Air Courier Conference of America, relied on that suspension to engage in a practice called “international remailing.” This entails bypassing the Postal Service and using private courier systems to deposit with foreign postal systems letters destined for foreign addresses. Believing this international remailing was a misuse of the urgent-letter suspension, the Postal Service issued a proposed modification and clarification of its regulation in order to make clear that the suspension for extremely urgent letters did not cover this practice. 50 Fed. Reg. 41462 (1985). The comments received in response to the proposed rule were overwhelmingly negative and focused on the perceived benefits of international remailing: Lower cost, faster delivery, greater reliability, and enhanced ability of United States companies to remain competitive in the international market. Because of the vigorous opposition to the proposed rule, the Postal Service agreed to reconsider its position and instituted a rulemaking “to remove the cloud” over the validity of the international remailing services. 51 Fed. Reg. 9852, 9853 (1986). After receiving additional comments and holding a public meeting on the subject, on June 17, 1986, the Postal Service issued a proposal to suspend operation of the PES for international remailing. Id., at 21929-21932. Additional comments were received, and after consideration of the record it had compiled, the Postal Service issued a final rule suspending the operation of the PES with respect to international remailing. Id., at 29637.

Respondents, the American Postal Workers Union, AFL-CIO, and the National Association of Letter Carriers, AFL-CIO (Unions), sued in the United States District Court for the District of Columbia, challenging the international remailing regulation pursuant to the judicial review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 702. They claimed that the rulemaking record was inadequate to support a finding that the suspension of the PES for international remailing was in the public interest. Petitioner Air Courier Conference of America (ACCA) intervened. On December 20, 1988, the District Court granted summary judgment in favor of the Postal Service and ACCA. American Postal Workers Union, AFL-CIO v. United States Postal Service, 701 F. Supp. 880 (1988). The Unions appealed to the Court of Appeals for the District of Columbia Circuit, and that court vacated the grant of summary judgment. American Postal Workers Union, AFL-CIO v. United States Postal Service, 282 U. S. App. D. C. 5, 891 F. 2d 304 (1989). It held that the Unions satisfied the zone-of-interests requirement for APA review under Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), and that the Postal Service’s regulation was arbitrary and capricious because it relied on too narrow an interpretation of “the public interest.” In determining that the Unions’ interest in employment opportunities was protected by the PES, the Court of Appeals noted that the PES were reenacted as part of the Postal Reorganization Act (PRA), Pub. L. 91-375, 84 Stat. 719, codified at 39 U. S. C. § 101 et seq. The Court of Appeals found that a “key impetus” and “principal purpose” of the PRA was “to implement various labor reforms that would improve pay, working conditions and labor-management relations for postal employees.” 282 U. S. App. D. C., at 10-11, 891 F. 2d, at 309-310. Reasoning that “[t]he Unions’ asserted interest is embraced directly by the labor reform provisions of the PRA,” id., at 11, 891 F. 2d, at 310, and that “[t]he PES constitute the linchpin in a statutory scheme concerned with maintaining an effective, financially viable Postal Service,” ibid., the court concluded that “[t]he interplay between the PES and the entire PRA persuades us that there is an ‘arguable’ or ‘plausible’ relationship between the purposes of the PES and the interests of the Union[s].” Ibid. The Court of Appeals also held that “the revenue protective purposes of the PES, standing alone, plausibly relate to the Unions’ interest in preventing the reduction of employment opportunities,” since “postal workers benefit from the PES’s function in ensuring a sufficient revenue base” for the Postal Service’s activities. Ibid.

Addressing the merits of the Unions’ challenge to the suspension order, the Court of Appeals held that it was arbitrary and capricious because the Postal Service had applied §601(b)’s public interest test too narrowly by considering only the benefits of the international remail rule to the small segment of the Postal Service’s consumer base that engages in international commerce. We granted certiorari, 496 U. S. 904 (1990), and we now reverse.

The United States Postal Service, nominally a respondent, argues along with ACCA that the Unions do not have standing to challenge the Postal Service’s suspension of the PES for international remailing. The Postal Service argues now that Congress precluded judicial review of Postal Service action under the APA by enacting 39 U. S. C. § 410(a), which the Postal Service contends provides that Chapters 5 and 7 of Title 5 do not apply to the Postal Service. Chapters 5 and 7 of Title 5 are the provisions of the APA dealing with “Administrative Procedure” (Chapter 5) and “Judicial Review” (Chapter 7).

The Postal Service raised this argument for the first time in its brief in opposition to the petition for writ of certiorari. It was not argued to either of the lower courts, and was not considered by either court below in deciding this case. This issue was not raised by ACCA in its petition for writ of certiorari, nor is it encompassed by the questions presented upon which we based our grant of certiorari. Consequently, we decline to decide whether § 410(a) exempts the Postal Service from judicial review under the APA.

To establish standing to sue under the APA, respondents must establish that they have suffered a legal wrong because of the challenged agency action, or are adversely affected or “aggrieved by agency action within the meaning of a relevant statute.” 5U. S. C. §702. Once they have shown that they are adversely affected, i. e., have suffered an “injury in fact,” see Allen v. Wright, 468 U. S. 737, 751 (1984), the Unions must show that they are within the zone of interests sought to be protected through the PES. Lujan v. National Wildlife Federation, 497 U. S. 871 (1990); Clarke v. Securities Industry Assn., 479 U. S. 388 (1987); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). Specifically, “the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan, supra, at 883 (citing Clarke, supra, at 396-397).

The District Court found that the Unions had satisfied the injury-in-fact test because increased competition through international remailing services might have an adverse effect on employment opportunities of postal workers. This finding of injury in fact was not appealed. The question before us, then, is whether the adverse effect on the employment opportunities of postal workers resulting from the suspension is within the zone of interests encompassed by the PES — the statutes which the Unions assert the Postal Service has violated in promulgating the international remailing rule.

The Court of Appeals found that the Unions had standing because “the revenue protective purposes of the PES, standing alone, plausibly relate to the Unions’ interest in preventing the reduction of employment opportunities.” 282 U. S. App. D. C., at 11, 891 F. 2d, at 310. This view is mistaken, for it conflates the zone-of-interests test with injury in fact. In Lujan, this Court gave the following example illustrating how injury in fact does not necessarily mean one is within the zone of interests to be protected by a given statute:

“[T]he failure of an agency to comply with a statutory provision requiring ‘on the record’ hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be ‘adversely affected within the meaning’ of the statute.” 497 U. S., at 883.

We must inquire, then, as to Congress’ intent in enacting the PES in order to determine whether postal workers were meant to be within the zone of interests protected by those statutes. The particular language of the statutes provides no support for respondents’ assertion that Congress intended to protect jobs with the Postal Service. In fact, the provisions of 18 U. S. C. § 1696(c), allowing private conveyance of letters if done on a one-time basis or without compensation, and 39 U. S. C. § 601(a), allowing letters to be carried out of the mails if certain procedures are followed, indicate that the congressional concern was not with opportunities for postal workers but with the receipt of necessary revenues for the Postal Service.

Nor does the history of this legislation — such as it is — indicate that the PES were intended for the benefit of postal workers. When the first statutes limiting private carriage of letters on post roads were enacted in 1792, the Post Office offered no pickup or delivery services. See C. Scheele, A Short History of the Mail Service 66, 91 (1970). Statutory authority to employ letter carriers was not enacted until two years later and was largely ignored until the late 1820’s. Id., at 66. The 1792 restrictions on private carriage protected the Government’s capital investment in the post roads, not the jobs of as yet virtually nonexistent postal employees. In 1825 and 1827, Acts were passed prohibiting the private carriage of letters through the use of stages or other vehicles, packet boats, or other vessels, § 19, ch. 64 of Act of March 3, 1825, 4 Stat. 107, and foot and horse posts, § 3, ch. 61 of Act of March 2, 1827, 4 Stat. 238. Postal employees cannot have been within the zone of interests of either the 1824 or 1827 Acts; those Acts targeted transportation of mail which even then was contracted out to private carriers. See W. Fuller, The American Mail: Enlarger of the Common Life 150 (1972).

Congress’ consideration of the 1845 Act was the only occasion on which the postal monopoly was the subject of substantial debate. The 1845 statute, entitled “An Act to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the Post Office Department,” 5 Stat. 732, was the result of three circumstances, none of which involved the interests of postal employees. First, the Post Office Department continued to run substantial deficits in spite of high postage rates. H. R. Rep. No. 477, 28th Cong., 1st Sess., 2-3, 5 (1844). Second, high postal rates enabled private expresses to make substantial inroads into the domestic market for delivery of letters and the 1825 and 1827 Acts proved unsuccessful in prosecuting them. Priest, The History of the Postal Monopoly in the United States, 18 J. Law & Econ. 33, 60 (1975) (citing United States v. Gray, 26 F. Cas. 18 (No. 15,253) (Mass. 1840), and United States v. Adams, 24 F. Cas. 761 (No. 14,421) (SDNY 1843)). Third, inauguration of the “penny post” in England quadrupled use of the mails, and it was thought that a substantial reduction in American postal rates would have the dual virtues of driving private expresses out of business and increasing mail volume of the Post Office. This, in turn, would help reduce the Post Office’s deficit. Cong. Globe, 28th Cong., 2d Sess., 213 (1845) (remarks of Sens. Simmons and Breese). See also H. R. Rep. No. 477, supra, at 5.

The legislative history of the sections of the Act limiting private carriage of letters shows a two-fold purpose. First, the Postmaster General and the States most distant from the commercial centers of the Northeast believed that the postal monopoly was necessary to prevent users of faster private expresses from taking advantage of early market intelligence and news of international affairs that had not yet reached the general populace through the slower mails. S. Doc. No. 66, 28th Cong., 2d Sess., 3-4 (1845). Second, it was thought to be the duty of the Government to serve outlying, frontier areas, even if it meant doing so below cost. H. R. Rep. No. 477, supra, at 2-3. Thus, the revenue protection provisions were not seen as an end in themselves, nor in any sense as a means of ensuring certain levels of public employment, but rather were seen as the means to achieve national integration and to ensure that all areas of the Nation were equally served by the Postal Service.

The PES enable the Postal Service to fulfill its responsibility to provide service to all communities at a unifprm rate by preventing private courier services from competing selectively with the Postal Service on its most profitable routes. If competitors could serve the lower cost segment of the market, leaving the Postal Service to handle the high-cost services, the Service would lose lucrative portions of its business, thereby increasing its average unit cost and requiring higher prices to all users. See Report of the President’s Commission on Postal Organization, Towards Postal Excellence, 94th Cong., 2d Sess., 129 (Comm. Print 1968). The postal monopoly, therefore, exists to ensure that postal services will be provided to the citizenry at large, and not to secure employment for postal workers.

The Unions’ claim on the merits is that the Postal Service has failed to comply with the mandate of 39 U. S. C. § 601(b) that the PES be suspended only if the public interest requires. The foregoing discussion has demonstrated that the PES were not designed to protect postal employment or further postal job opportunities, but the Unions argue that the courts should look beyond the PES to the entire 1970 PR A in applying the zone-of-interests test. The Unions argue that because one of the purposes of the labor-management provisions of the PRA was to stablize labor-management relations within the Postal Service, and because the PES is the “linchpin” of the Postal Service, employment opportunities of postal workers are arguably within the zone of interests covered by the PES. The Unions rely upon our opinion in Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), to support this contention.

Clarke is the most recent in a series of cases in which we have held that competitors of regulated entities have standing to challenge regulations. Clarke, supra; Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). In Clarke, we said that “we are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress’ overall purposes in the National Bank Act.” 479 U. S., at 401. This statement, like all others in our opinions, must be taken in the context in which it was made. In the next paragraph of the opinion, the Court pointed out that 12 U. S. C. §36, which the plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself “a limited exception to the otherwise applicable requirement of [12 U. S. C.] §81,” limiting the places at which a national bank could transact business to its headquarters and any “branches” permitted by §36. Thus the zone-of-interests test was to be applied not merely in the light of § 36, which was the basis of the plaintiffs’ claim on the merits, but also in the light of § 81, to which § 36 was an exception.

The situation in the present case is quite different. The only relationship between the PES, upon which the Unions rely for their claim on the merits, and the labor-management provisions of the PRA, upon which the Unions rely for their standing, is that both were included in the general codification of postal statutes embraced in the PRA. The statutory provisions enacted and reenacted in the PRA are spread over some 65 pages in the United States Code and take up an entire title of that volume. We said in Lujan that “the relevant statute [under the APA] of course, is the statute whose violation is the gravamen of the complaint.” 497 U. S., at 886. To adopt the unions’ contention would require us to hold that the “relevant statute” in this case is the PRA, with all of its various provisions united only by the fact that they deal with the Postal Service. But to accept this level of generality in defining the “relevant statute” could deprive the zone-of-interests test of virtually all meaning.

Unlike the two sections of the National Bank Act discussed in Clarke, supra, none of the provisions of the PES have any integral relationship with the labor-management provisions of the PRA. When it enacted the PRA, Congress made no substantive changes to those portions of the PES codified in the Criminal Code, 18 U. S. C. §§ 1693-1699; Congress readopted without change those portions of the PES codified in the Postal Service Code, 39 U. S. C. §§601-606; and Congress required the Postal Service to conduct a 2-year study and reevaluation of the PES before deciding whether those laws should be modified or repealed. PRA, Pub. L. 91-375, §7, 84 Stat. 783; S. Rep. No. 91-912, p. 22 (1970); H. R. Rep. No. 91-1104, p. 48 (1970).

None of the documents constituting the PRA legislative history suggest that those concerned with postal reforms saw any connection between the PES and the provisions of the PRA dealing with labor-management relations. The Senate and House Reports simply note that the proposed bills continue existing law without change and require the Postal Service to conduct a study of the PES. The Court of Appeals referred to the PES as the “linchpin” of the Postal Service, which it may well be; but it stretches the zone-of-interests test too far to say that because of that fact those who a different part of the PRA was designed to benefit may challenge a violation of the PES.

It would be a substantial extension of our holdings in Clarke, supra, Data Processing, supra, and Investment Co. Institute, supra, to allow the Unions in this case to leapfrog from their asserted protection under the labor-management provisions of the PRA to their claim on the merits under the PES. We decline to make that extension, and hold that the Unions do not have standing to challenge the Postal Service’s suspension of the PES to permit private couriers to engage in international remailing. We therefore do not reach the merits of the Unions’ claim that the suspension was not in the public interest. The judgment of the Court of Appeals is

Reversed.

Justice Stevens,

with whom Justice Marshall and Justice Blackmun join, concurring in the judgment.

There is no ambiguity in the text of 39 U. S. C. § 410(a). That section of the Postal Reorganization Act provides that the judicial review provisions of the Administrative Procedure Act (APA) do not apply to the exercise of the powers of the Postal Service. See ante, at 522, n. 1. It is therefore not only unnecessary, but also unwise, for the Court to issue an opinion on the entirely hypothetical question whether, if the APA did authorize judicial review of actions of the Postal Service, its employees would have standing, to invoke such review to challenge a regulation that may curtail their job opportunities. I therefore do not join the opinion discussing this hypothetical standing question.

Nor do I consider it necessary to decide whether this objection to judicial review may be waived by the Postal Service, because it is surely a matter that we may notice on our own motion. Faithful adherence to the doctrine of judicial restraint provides a fully adequate justification for deciding this case on the best and narrowest ground available. I would do so. Accordingly, relying solely on 39 U. S. C. § 410(a), I concur in the Court’s judgment that the Unions’ challenge must be dismissed.

       Title 39 U. S. C. § 410 provides in pertinent part:
      “[N]o Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service.”

       The questions presented in this case are as follows:
      “1. Are postal employees within the ‘zone of interest’ of the Private Express Statutes that establish and allow the United States Postal Service to suspend restrictions on the private carriage of letters when ‘the public interest requires?’
      “2. Did the Postal Service act unreasonably, arbitrarily, or capriciously in promulgating its international remail regulation under the ‘public interest’ standard for suspending the Private Express Statutes where it found no adverse effects on revenues and found general benefits to the public, competition, and users of remail services?” Brief for Petitioner i.

       The Postal Service argues that since “congressional preclusion of judicial review is in effect jurisdictional,” Block v. Community Nutrition Institute, 467 U. S. 340, 353, n. 4 (1984), the issue cannot be waived by the parties. We do not agree. Section 410, at most, exempts the Postal Service from the APA. The judicial review provisions of the APA are not jurisdictional, Califano v. Sanders, 430 U. S. 99 (1977), so a defense based on exemption from the APA can be waived by the Government. Whether § 410(a) exempts the Postal Service from APA review is in essence a question whether Congress intended to allow a certain cause of action against the Postal Service. Whether a cause of action exists is not a question of jurisdiction, and may be assumed without being decided. Burks v. Lasker, 441 U. S. 471, 476, n. 5 (1979).

       Title 18 U. S. C. § 1696 provides:
      “Private express for letters and packets
      “(a) Whoever establishes any private express for the conveyance of letters or packets, or in any manner causes or provides for the conveyance of the same by regular trips or at stated periods over any post route which is or may be established by law, or from any city, town, or place to any other city, town, or place, between which the mail is regularly carried, shall be fined not more than $500 or imprisoned not more than six months, or both.

      “(b) Whoever transmits by private express or other unlawful means, or delivers to any agent thereof, or deposits at any appointed place, for the purpose of being so transmitted any letter or packet, shall be fined not more than $50.
      “(c) This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation, or by special messenger employed for the particular occasion only. Whenever more than twenty-five such letters or packets are conveyed or transmitted by such special messenger, the requirements of section 601 of title 39, shall be observed as to each piece.”
      Title 39 U. S. C. § 601 provides:
      “Letters carried out of the mail
      “(a) A letter may be carried out of the mails when—
      “(1) it is enclosed in an envelope;
      “(2) the amount of postage which would have been charged on the letter if it had been sent by mail is paid by stamps, or postage meter stamps, on the envelope;
      “(3) the envelope is properly addressed;
      “(4) the envelope is so sealed that the letter cannot be taken from it without defacing the envelope;
      “(5) any stamps on the envelope are canceled in ink by the sender; and
      “(6) the date of the letter, of its transmission or receipt by the carrier is endorsed on the envelope in ink.
      “(b) The Postal Service may suspend the operation of any part of this section upon any mail route where the public interest requires the suspension.”

      The PES are competition statutes that regulate the conduct of competitors of the Postal Service. The postal employees for whose benefit the Unions have brought suit here are not competitors of either the Postal Service or remailers. Employees have generally been denied standing to enforce competition laws because they lack competitive and direct injury. See, e. g., Adams v. Pan American World Airways, Inc., 264 U. S. App. D. C. 174, 828 F. 2d 24 (1987) (former airline employees denied standing to assert antitrust claim against airline that allegedly drove their former employer out of business), cert, denied sub nom. Union de Transports Aeriens v. Beckman, 485 U. S. 934 (1988); Curtis v. Campbell-Taggart, Inc., 687 F. 2d 336 (CA10) (employees of corporation injured by anti-competitive conduct denied standing under antitrust laws), cert. denied, 459 U. S. 1090 (1982).

      It is at least arguable that the Postal Service did not waive this objection to judicial review. As the Court points out, the Postal Service raised this argument in its brief in opposition to the petition for writ of certiorari. See ante, at 522. In deciding to review this case, therefore, we were cognizant that an issue antecedent to the standing issue might first have to be resolved. Moreover, although the Postal Service’s objection to judicial review was not raised in the lower courts, the Court of Appeals recognized that “the USPS is exempt from the strictures of the Administrative Procedure Act (‘APA’), see 39 U. S. C. § 410(a),” American Postal Workers Union, AFL-CIO v. United States Postal Service, 228 U. S. App. D. C. 5, 8, 891 F. 2d 304, 307 (1989), and nevertheless continued to review the actions of the Postal Service, thus implicitly rejecting the contention made by the Government here.