author: Justice O’Connor Justice Blackmun,

text:
    ARDESTANI v. IMMIGRATION AND NATURALIZATION SERVICE
    No. 90-1141.
    Argued October 8, 1991
    Decided December 10, 1991

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, and Souter, JJ., joined. Black-mun, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 139. Thomas, J., took no part in the consideration or decision of the case.

      David N. Soloway argued the cause for petitioner. With him on the briefs was Carolyn F Soloway.

      Deputy Solicitor General Wallace argued the cause for respondent. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Harriet S. Shapiro, William Kanter, and John S. Koppel.

        Lawrence H. Rudnick filed a brief for the American Immigration Lawyers Association as amicus curiae urging reversal.

        John J. Curtin, Jr., Robert E. Juceam, Dale M. Schwartz, and Sandra M. Lipsman filed a brief for the American Bar Association as amicus curiae.

   Justice O’Connor

delivered the opinion of the Court.

Petitioner Rafeh-Rafie Ardestani prevailed in an administrative deportation proceeding brought by respondent Immigration and Naturalization Service (INS). She sought attorney’s fees and costs under the Equal Access to Justice Act (EAJA), 5 U. S. C. § 504 and 28 U. S. C. § 2412, which provides that prevailing parties in certain adversarial proceedings may recover attorney’s fees from the Government. We now consider whether the EAJA authorizes the award of attorney’s fees and costs for administrative deportation proceedings before the INS. We conclude that it does not.

I

Ardestani is an Iranian woman of the Bahai faith who entered the United States as a visitor in December 1982. She remained in this country lawfully until the end of May 1984 and then sought asylum. The United States Department of State informed the INS that Ardestani’s fear of persecution upon return to Iran was well founded. In February 1986, however, the INS denied Ardestani’s asylum application on the ground that, before entering the United States, she had reached a “safe haven” in Luxembourg and had established residence there. Ardestani advised the INS that she had been in Luxembourg only three days en route to the United States, that she had stayed in a hotel, and that she had never applied for residency in that country. Nonetheless, the following month, the INS issued an order to show cause why she should not be deported.

At the deportation hearing, Ardestani successfully renewed her application for asylum. She then applied for attorney’s fees and costs under the EAJA. The Immigration Judge awarded attorney’s fees in the amount of $1,071.85 based on his determination that Ardestani was the “prevailing party” in the adjudication and that the position of the INS in pursuing her deportation was not “substantially justified.” The INS appealed the award of fees to the Board of Immigration Appeals. The Board vacated and denied the award on the ground that the Attorney General has determined that deportation proceedings are not within the scope of the EAJA. See 28 CFR §24.103 (1991); 46 Fed. Reg. 48921, 48922 (1981) (interim rule). A divided Court of Appeals for the Eleventh Circuit denied Ardestani’s petition for review and held that the EAJA does not apply to administrative deportation proceedings. 904 F. 2d 1505 (1990).

We granted certiorari, 499 U. S. 904 (1991), to resolve a conflict among the United States Courts of Appeals and now affirm.

II

The EAJA provides that prevailing parties in certain adversary administrative proceedings may recover attorney’s fees and costs from the Government. In pertinent part, 5 U. S. C. § 504(a)(1) provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” The EAJA defines an “adversary adjudication” as “an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise.” 5 U. S. C. § 504(b)(l)(C)(i). Section 554 of Title 5, in turn, delineates the scope of proceedings governed by the formal adjudication requirements of the Administrative Procedure Act (APA), see 5 U. S. C. §§ 556, 557, and sets forth some of those requirements. As both parties agree that the United States was represented by counsel in Ardestani’s deportation proceeding, the sole question presented in this case is whether that proceeding was an adversary adjudication “under section 554” within the meaning of the EAJA.

A

Section 554(a) states that the provisions of that section apply to “every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,” with six statutory exceptions not relevant here. Subsections (b) through (e) of § 554 establish the procedures that must be followed in the agency adjudications described in subsection (a). Although immigration proceedings are required by statute to be determined on the record after a hearing, 8 U. S. C. § 1252(b), we previously have decided that they are not governed by the APA. Marcello v. Bonds, 349 U. S. 302 (1955).

In Marcello, we held that Congress intended the provisions of the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq., to supplant the APA in immigration proceedings. Two years before the enactment of the INA, we had concluded that immigration proceedings were subject to the APA. Wong Yang Sung v. McGrath, 339 U. S. 33 (1950). Congress legislatively overruled that decision almost immediately afterward in a rider to the Supplemental Appropriation Act, 1951. 64 Stat. 1044, 1048. In Marcello, we had to determine whether, in revising the immigration laws in 1952 and repealing the rider, Congress had reversed its previous position and reinstated the holding of the Wong Yang Sung case. We held that the INA “expressly supersedes” the hearing provisions of the APA in light of “the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings.” 349 U. S., at 310.

Applying our precedent in Marcello, it is clear that Ardes-tani’s deportation proceeding was not subject to the APA and thus not governed by the provisions of § 554. It is immaterial that the Attorney General in 1983 promulgated regulations that conform deportation hearings more closely to the procedures required for formal adjudication under the APA. 48 Fed. Reg. 8038-8040 (1983). Marcello does not hold simply that deportation proceedings are subject to the APA except for specific deviations sanctioned by the INA. Rather, Marcello rests in large part on the statute’s prescription that the INA “shall be the sole and exclusive procedure for determining the deportability of an alien under this section.” INA, § 242(b) (codified at 8 U. S. C. § 1252(b)) (emphasis added); Marcello, supra, at 309. Neither the analysis nor the decision in Marcello leaves open the possibility that the APA should displace the INA in the event that the regulations governing immigration proceedings become functionally equivalent to the procedures mandated for adjudications governed by § 554.

B

Ardestani’s principal argument is that, for the purposes of the EAJA, deportation proceedings fall “under section 554” because, like the adjudications described in § 554(a), they are “required by statute to be determined on the record after opportunity for an agency hearing.” She thus contends that the phrase “under section 554” encompasses all adjudications “as defined in” § 554(a), even if they are not governed by the procedural provisions established in the remainder of that section. We hold that the meaning of “an adjudication under section 554” is unambiguous in the context of the EAJA and does not permit the reading that Ardestani has urged upon us.

“The starting point in statutory interpretation is 'the language [of the statute] itself.’” United States v. James, 478 U. S. 597, 604 (1986) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring)). The word “under” has many dictionary definitions and must draw its meaning from its context. In this case, the most natural reading of the EAJA’s applicability to adjudications “under section 554” is that those proceedings must be “subject to” or “governed by” § 554. Indeed, in addition to the court below, six United States Courts of Appeals have determined that the plain and ordinary meaning of “under” as it appears in the EAJA is that proceedings must be governed by the procedures mandated by the APA. See the cases cited in n. 1, supra. As one court has observed, the word “under” appears several times in the EAJA itself, and “[i]n other locations, no creative reading is possible — ‘under’ means ‘subject [or pursuant] to’ or ‘by reason of the authority of.’ ” St. Louis Fuel & Supply Co. v. FERC, 281 U. S. App. D. C. 329, 333, 890 F. 2d 446, 450 (1989).

The “strong presumption” that the plain language of the statute expresses congressional intent is rebutted only in “rare and exceptional circumstances,” Rubin v. United States, 449 U. S. 424, 430 (1981), when a contrary legislative intent is clearly expressed. INS v. Cardoza-Fonseca, 480 U. S. 421, 432, n. 12 (1987); Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). In this case, the legislative history cannot overcome the strong presumption “‘that the legislative purpose is expressed by the ordinary meaning of the words used.’ ” American Tobacco Co. v. Patterson, 456 U. S. 63, 68 (1982) (quoting Richards v. United States, 369 U. S. 1, 9 (1962)). While it is possible, as Ardestani contends, that Congress’ only intent in defining adversary adjudications was to limit EAJA fees to trial-type proceedings in which the Government is represented, Congress chose to refer to adversary adjudications “under section 554.” Section 554 does not merely describe a type of agency proceeding; it also prescribes that certain procedures be followed in the adjudications that fall within its scope. We must assume that the EAJA’s unqualified reference to a specific statutory provision mandating specific procedural protections is more than a general indication of the types of proceedings that the EAJA was intended to cover.

We are unable to identify any conclusive statement in the legislative history regarding Congress’ decision to define adversary adjudications under the EAJA by reference to § 554, much less one that would undermine the ordinary understanding of the phrase “under section 554.” It is not enough that the House Conference Committee Report on the EAJA states, without further comment, that adversary adjudications are “defined under” the APA. H. R. Conf. Rep. No. 96-1434, p. 23 (1980). Although it is conceivable that “defined under” means that Congress intended adversary adjudications covered by the EAJA to be those “as defined by” the APA, it could just as easily mean that covered adjudications are “defined as those conducted under” the APA. We are similarly unpersuaded that Congress meant to institute a substantive, rather than a semantic, change when, without explanation, it changed the draft section of the EAJA defining “adversary adjudication” from “an adjudication subject to section 554,” S. Rep. No. 96-253, p. 24 (1979) (emphasis added), to “an adjudication under section 554.”

Our conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language is reinforced in this case by the limited nature of waivers of sovereign immunity. The EAJA renders the United States liable for attorney’s fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Library of Congress v. Shaw, 478 U. S. 310, 318 (1986); Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983).

Because we conclude that administrative immigration proceedings do not fall “under section 554” and therefore are wholly outside the scope of the EAJA, this case is distinguishable from those cases in which we have recognized that, once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U. S. 11, 118 (1979); see, e. g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) (“Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver”); Sullivan v. Hudson, 490 U. S. 877, 892 (1989) (holding that Social Security administrative proceedings held on remand from a district court order “are an integral part of the ‘civil action’ for judicial review,” and thus that attorney’s fees for representation on remand are available under the civil action provisions of the EAJA, 28 U.S. C. §2412).

Finally, we consider Ardestani’s argument that a functional interpretation of the EAJA is necessary in order to further the legislative goals underlying the statute. The clearly stated objective of the EAJA is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority. Congressional Findings and Purposes, 94 Stat. 2325, note following 5 U. S. C. § 504; H. R. Rep. No. 96-1418, pp. 10,12 (1980); S. Rep. No. 96-253, supra, at 5; Commissioner, INS v. Jean, 496 U. S. 154, 163 (1990).

We have no doubt that the broad purposes of the EAJA would be served by making the statute applicable to deportation proceedings. We are mindful that the complexity of immigration procedures, and the enormity of the interests at stake, make legal representation in deportation proceedings especially important. We acknowledge that Ardestani has been forced to shoulder the financial and emotional burdens of a deportation hearing in which the position of the INS was determined not to be substantially justified. But we cannot extend the EAJA to administrative deportation proceedings when the plain language of the statute, coupled with the strict construction of waivers of sovereign immunity, constrain us to do otherwise.

Congress has twice expanded the EAJA’s definition of “adversary adjudications” to include proceedings previously considered to be outside the EAJA’s coverage. In 1985, Congress legislatively overruled Fidelity Construction Co. v. United States, 700 F. 2d 1379 (CA Fed.), cert. denied, 464 U. S. 826 (1983), by amending § 504(b)(1)(C) to add certain proceedings under the Contract Disputes Act of 1978. See Pub. L. 99-80, § 1(c)(2)(B), 99 Stat. 184. In 1986, Congress amended the same section to add proceedings under the Program Fraud Civil Remedies Act of 1986. See Pub. L. 99-509, § 6103(c), 100 Stat. 1948. In this case as well, it is the province of Congress, not this Court, to decide whether to bring administrative deportation proceedings within the scope of the statute.

III

We hold that administrative deportation proceedings are not adversary adjudications “under section 554” and thus do not fall within the category of proceedings for which the EAJA has waived sovereign immunity and authorized the award of attorney’s fees and costs. We thus need not reach the Court of Appeals’ alternative holding that the EAJA’s fee-shifting provisions are precluded by § 292 of the INA, 8 U. S. C. § 1362, which provides that an individual in an administrative deportation proceeding may be represented by counsel “at no expense to the Government.” The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Thomas took no part in the consideration or decision of this case.

Justice Blackmun,

with whom Justice Stevens joins, dissenting.

The Immigration and Naturalization Service (INS or Service) put petitioner Ardestani through the ordeal of a deportation proceeding and attempted to return her to a land in which, the State Department had already determined, she had a well-founded fear of persecution for her religious convictions. The Service has since abandoned its argument that its position in this matter was “substantially justified.” Instead, it now argues only that deportation proceedings are not among the class of proceedings for which the Equal Access to Justice Act (EAJA), 5 U. S. C. §504 and 28 U. S. C. §2412, authorizes awards of attorney’s fees. The Court today accepts this contention, relying on the purportedly “plain” meaning of the statute and the canon that waivers of sovereign immunity are to be construed strictly.

I do not find the meaning of the relevant EAJA provisions “plain,” nor do I agree that the Court’s canon is applicable to the EAJA. In my view, deportation proceedings exemplify the kind of adjudications for which Congress authorized fee awards: The alien's stake in the proceeding is enormous (sometimes life or death in the asylum context); the legal rules surrounding deportation and asylum proceedings are very complex; specialized counsel are necessary but in short supply; and evidence suggests that some conduct on the part of the Government in deportation and asylum proceedings has been abusive. The Court's opinion is all the more troubling for me, because it suggests that the Court has forgotten its recent admonition that the EAJA must be construed "in light of its purpose to diminish the deterrent effect of seeking review of, or defending against, governmental action." Sullivan v. Hudson, 490 U. S. 877, 890 (1989) (internal quotation marks omitted). Indeed, notably absent in the Court's opinion is any account of the statutory purpose that could be advanced by excluding deportation proceedings from EAJA coverage.

Proper application of established principles entitles Ardes-tani to a fee award. Accordingly, I dissent.

I

The Court correctly observes that petitioner Ardestani's eligibility for EAJA fees depends upon whether a deportation proceeding qualifies as an "adversary adjudication." The Act defines that key term in § 504(b)(1)(C)(i): "[A]d-versary adjudication' means . . . an adjudication under [5 U. S. CJ section 554. . . in which the position of the United States is represented by counsel or otherwise." Because all agree that the position of the United States in fact was represented by counsel, the only issue is whether a deportation proceeding can be construed as "an adjudication under section 554," which is a part of the Administrative Procedure Act (APA).

Respondent INS argues that the phrase "adjudication under section 554" is unambiguous and can refer only to an adjudication “governed by” or “conducted under the authority of” §554. The Service emphasizes this Court’s holding in Marcello v. Bonds, 349 U. S. 302 (1955), that deportation proceedings are governed by the provisions of the Immigration and Nationality Act of 1952, rather than by §554 or other provisions of the APA. Accordingly, the INS contends, a deportation proceeding is not an adjudication “under section 554” and therefore is not an “adversary adjudication” within the meaning of the EAJA.

The Court accepts this conclusion because it accepts the Service’s crucial assumption that the statutory words “under section 554” have a single, “plain” meaning — the one that the INS urges. The statutory words might be given the interpretation the INS recommends, at least if those words are considered in isolation. That is not to say, however, that the statutory language is “plain” or “unambiguous.”

In my view, the statutory context of the words “adjudication under section 554” suggests a very plausible alternative interpretation. These words appear as part of a definition for the compound term “adversary adjudication,” namely, “an adjudication under section 554 ... in which the position of the United States is represented by counsel or otherwise.” This provision establishes a definition for both components of the term “adversary adjudication”: The reference to representation of the Government’s position “by counsel or otherwise” defines what makes an administrative proceeding adversary; the reference to § 554 defines what makes a procedure an adjudication.

The EAJA could have been drafted to specify explicitly the features that constitute an “adjudication” for fees purposes. The term “adjudication,” however, already had an accepted meaning at the time the EAJA was enacted. Rather than reproduce that definition, Congress simply referred the reader, shorthand, to the features described in §554, the APA section that defines a generic adjudication. The words “adjudication under section 554” plausibly mean “adjudication, as defined in section 554,” or “adjudication, within the meaning 0/section 554,” or, more literally, “adjudication, as defined under the heading 0/section 554.”

Because the meaning of “adjudication under section 554” is ambiguous, we consult the EAJA’s legislative history and decide between the two interpretations “in light of [the EAJA’s] purpose to diminish the deterrent effect of seeking review of, or defending against, governmental action.” Sullivan v. Hudson, 490 U, S., at 890 (internal quotation marks omitted).

II

The EAJA’s purposes are clearly stated. The Report of the House Committee on the Judiciary notes that the high cost of legal assistance and the superior resources and expertise of the Federal Government precluded private parties from challenging or defending against unreasonable governmental action. H. R. Rep. No. 96-1418, pp. 9-10 (1980) (House Report). Fee awards were intended to address this problem: “When there is an opportunity to recover costs,” the Committee noted, “a party does not have to choose between acquiescing to an unreasonable Government order or prevailing to his financial detriment.” Id., at 12. Nor, the Committee observed, would the availability of attorney’s fees vindicate only private interests. Because “a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy,” the Committee recognized, adjudication may ensure the “legitimacy and fairness of the law.” Id., at 10. Thus, removing disincentives to adjudication when the Government acts unreasonably both vindicates individual rights and curbs governmental excesses. Id., at 12.

Congress’ description of the scope of “adversary adjudication” focuses on the “adversariness” requirement — the presence or absence of Government representation — rather than on whether or not § 554 technically governs an adjudication. Two of the three definitions offered in the EAJA Conference Report state only that an adversary adjudication is an adjudication where the agency has taken a position or is represented by counsel; they omit altogether any mention of § 554. See H. R. Conf. Rep. No. 96-1434, pp. 21, 23 (1980) (Conference Report). According to the third definition:

“The conference substitute defines adversary adjudication as an agency adjudication defined under the Administrative Procedures [sic] Act where the agency takes a position through representation by counsel or otherwise. It is intended that this definition precludes an award in a situation where an agency, e. g., the Social Security Administration, does not take a position in the adjudication. If, however, the agency does take a position at some point in the adjudication, the adjudication would then become adversarial” (emphasis added). Id., at 23.

This definition repeats the Report’s earlier focus on the presence or absence of counsel as the decisive factor in determining whether an adjudication is adversary. More important, in its use of the words “defined under,” the Report suggests that an adjudication need not be governed by the APA, but only — as deportation proceedings surely do — correspond to the definition of an adjudication given in the APA.

Nowhere in the Committee Reports or in the floor debates is there any suggestion that the words “under section 554” were intended to exclude any particular agency’s adjudications (let alone the INS’) from EAJA coverage. Nor was it ever discussed whether a particular agency’s adjudications were or were not technically governed by § 554 or other provisions of the APA. Indeed, Congress seems to have given no attention whatsoever to whether particular administrative proceedings were adjudications, as opposed to, for example, rulemaking, ratemaking, or licensing proceedings. Instead, Congress’ focus was on whether certain proceedings, universally assumed to be adjudications, were adversary — that is, whether the Government was represented by counsel or had otherwise staked out a position. In short, the reference to §554 seems to be nothing but a statutory “hook” — a convenient way to signal, in the statutory text, the essential and uncontroversial characteristics of an “adjudication.”

This interpretation is confirmed by the one special case of agency proceedings that Congress examined with any particularity: Social Security Administration proceedings. This Court had refrained from deciding whether such proceedings are governed by § 554. See Richardson v. Perales, 402 U. S. 389, 409 (1971). The EAJA Conference Report makes clear that, notwithstanding this uncertainty, Congress considered a Social Security Act administrative proceeding to be covered by the EAJA if the adjudication was “adversary,” that is, if the United States had staked out a position. See Conference Report, at 23, quoted supra, at 143. The House Judiciary Committee Report on the EAJA’s 1985 reenactment is to similar but stronger effect:

“As enacted in 1980, the Act covers ‘adversary adjudication’ — i. e., an adjudication under section 554 of [5 U. S. C.] ‘in which the position of the United States is represented by counsel or otherwise’.... While this language generally excludes Social Security administrative hearings from the Act, Congress made clear in 1980 that ‘If . . . the agency does take a position at some point in the adjudication, the adjudication would then become adversarial,’ and thus be subject to the Act. It is the committee’s understanding that the Secretary of Health and Human Services has implemented an experiment in five locations in which the Secretary is represented at the hearing before the administrative law judge. This is precisely the type of situation covered by section 50U(b)(l)(C). While, generally, Social Security administrative hearings remain outside the scope of this statute, those in which the Secretary is represented are covered by the Act” (footnote omitted; first emphasis in original; others supplied). H. R. Rep. No. 99-120, pp. 10-11 (1985).

Thus, despite this Court’s demurral regarding whether Social Security proceedings are technically governed by § 554, and without expressing any view whatsoever on this issue, Congress nevertheless stated that EAJA fees were appropriate. This circumstance strongly indicates that Congress did not intend EAJA coverage to depend upon whether § 554, rather than some functionally equivalent provision, technically governs the proceeding.

III

As noted above, this Court recently held in Sullivan v. Hudson that the EAJA is to be “read in light of its purpose ‘to diminish the deterrent effect of seeking review of, or defending against, governmental action.’” 490 U. S., at 890. In particular, the Court held that while Social Security Administration proceedings on remand from federal district courts were not adversary adjudications, because the Government’s position was not represented by counsel or otherwise, id., at 891, they were nevertheless “part and parcel” of the civil action, and thus were covered by the “civil action” provisions of the EAJA. Id., at 888.

In so holding, the Court rejected a plain meaning argument stronger than the one advanced here. The Government had argued that the term “civil action” unambiguously excluded administrative proceedings, and that the specific exclusion of Social Security provisions from administrative EAJA coverage precluded, by the principle of expressio unius est exclusio alterius, their coverage under civil action EAJA. Id., at 891. The Court conceded that this contention was “not without some force," but went on to say that it did not “ris[e] to the level necessary to oust what we think is the most reasonable interpretation of the statute in light of its manifest purpose.” Id., at 890.

The Court recognizes that there is no question that application of the EAJA to deportation proceedings would advance the Act’s manifest purposes of protecting individuals’ rights, deterring unjustified governmental action, and “help-ting] assure that administrative decisions reflect informed deliberation.” House Report, at 12. Indeed, unjustified INS deportation proceedings are a classic example of a situation in which persons “may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved” and the “disparity between the resources and expertise of these individuals and their government.” House Report, at 5 and 6. An alien facing deportation generally is unfamiliar with the arcane system of immigration law, is often unskilled in the English language, and sometimes is uneducated; for these reasons, “deportation hearings are difficult for aliens to fully comprehend, let alone conduct, and individuals subject to such proceedings frequently require the assistance of counsel.” Escobar Ruiz v. INS, 838 F. 2d 1020, 1026 (CA9 1988) (en banc). In many areas, competent counsel is difficult to obtain. See Anker, Determining Asylum Claims in the United States, 2 Int’l J. of Refugee Law 252, 261 (1990). Evidence indicates that the INS has engaged in abusive litigation tactics. See Watson, No More “Independent Operators,” Legal Times, May 14,1990, p. 2 (quoting remark of William P. Cook, then INS General Counsel, that “I have been told that some of my offices appeal every adverse decision regardless of the merits, . . . [and] that others refuse to have stipulations”); Note, Applying the Equal Access to Justice Act to Asylum Hearings, 97 Yale L. J. 1459, 1471 (1988) (describing an INS pattern of “vigorous opposition to adjudicated asylum claims, often irrespective of the merits”).

Finally, the stakes for the alien involved in deportation proceedings — particularly in asylum cases — are enormous. See, e. g., INS v. Cardoza-Fonseca, 480 U. S. 421, 449 (1987). Under these circumstances, application of the EAJA to deportation proceedings clearly would fulfill the statute’s purposes.

The Court states two reasons, however, for recanting on its recent recognition in Hudson that EAJA is to be read “in light of its manifest purpose.” The first is its argument that “the plain language of the statute” compels the Court to deny fees to Ardestani. This argument, as I already have suggested above, is not persuasive, and is in any event less persuasive than the similar argument rejected in Hudson.

The additional reason the Court gives for departing from Hudson is the canon of statutory interpretation that waivers of sovereign immunity must be strictly construed. For good reason, this argument has not been accepted in any other EAJA case decided by this Court. The purposes of the canon are to protect the public fisc and to provide breathing space for legitimate Government action that might be deterred by litigation. But these purposes are already fulfilled by the EAJA’s requirement that even prevailing parties may not be awarded fees unless the Government’s position lacked substantial justification. The Report of the Senate Committee on the Judiciary makes clear that this provision was adopted precisely in order to reduce the bill’s cost and to prevent “a 'chilling effect’ on proper Government enforcement efforts.” S. Rep. No. 96-253, p. 2 (1979). Congress therefore, in effect, already has applied the maxim on which the Court relies. The Court’s reapplication of that maxim to restrict EAJA’s scope still further is not merely superfluous, but is inconsistent with congressional intent.

> 1 — 4

Because the Court accepts the INS’ “plain meaning and sovereign immunity arguments, it has no cause to address the Government’s two remaining arguments. Both are easily resolved against the Government.

The INS suggests, first, that the Court owes deference to the Attorney General’s determination that the EAJA does not apply to deportation proceedings. This Court has indicated, however, that reviewing courts do not owe deference to an agency’s interpretation of statutes outside its particular expertise and special charge to administer. See Adams Fruit Co. v. Barrett, 494 U. S. 638, 649-650 (1990); see also Professional Reactor Operator Soc. v. NRC, 291 U. S. App. D. C. 219, 223, 939 F. 2d 1047, 1051 (1991) (no deference to agency interpretation of APA, because agency not assigned special role by Congress in construing that statute). Because the EAJA, like the APA, applies to all agencies and is not administered by any one in particular, deference to the interpretation by any particular agency is inappropriate.

The INS argues, second, that a fee award in this case is proscribed by §292 of the Immigration and Nationality Act of 1952, which provides that a person involved in a deportation proceeding “shall have the privilege of being represented (at no expense to the Government) by such counsel ... as he shall choose.” 66 Stat. 235, 8 U. S. C. § 1362. The INS argues that this provision is a specific bar on fee shifting in deportation proceedings that necessarily overrides the EAJA’s general fee-shifting policy. The legislative history of the EAJA clearly states, however, that the statute “applies to all civil actions except . . . those already covered by existing fee-shifting statutes.” House Report, at 18. There is no reason to think that Congress would have held a different view regarding the EAJA’s administrative provisions. Because the Immigration and Nationality Act of 1952 contains no fee-shifting provisions, it cannot bar the EAJA’s application.

Nor is the Government correct that this interpretation would effectively repeal §292. The purpose of §292 is to relieve the Government of any general obligation to appoint and pay counsel for indigent aliens. See Escobar Ruiz v. INS, 838 F. 2d, at 1028. The purpose of the EAJA, on the other hand, is to reimburse persons who prevail in those cases where the Government’s action was not substantially justified. By virtue of their different purposes, the two statutes may coexist. No alien has an automatic right to Government-appointed and Government-paid counsel. And in all cases where the Government’s action is substantially justified — the vast majority of cases, one would hope — the alien has no claim against the Government for attorney’s fees.

V

In sum, EAJA’s ambiguous definition of the term “adversary adjudication” can be read to support Ardestani’s position; the legislative history confirms her interpretation; and the purposes of the EAJA, in whose light the Court heretofore has interpreted the statute, strongly favor the availability of attorney’s fees in deportation proceedings. I can only hope that the Court’s departure from its approach in Hudson signals no permanent change in its EAJA jurisprudence. I would hold that Ardestani is entitled to a fee award and would reverse the judgment of the Court of Appeals.

       ive other Courts of Appeals agree with the court below that the EAJA does not apply to administrative deportation proceedings. Hashim v. INS, 936 F. 2d 711 (CA2 1991), cert. pending, No. 91-207; Escobar v. INS, 935 F. 2d 650 (CA4 1991); Hodge v. United States Dept. of Justice, 929 F. 2d 153 (CA5 1991), cert. pending, No. 91-83; Full Gospel Portland Church v. Thornburgh, 288 U. S. App. D. C. 356, 927 F. 2d 628 (1991), cert. pending, No. 91-494; Clarke v. INS, 904 F. 2d 172 (CA3 1990); accord, Owen v. Brock, 860 F. 2d 1363 (CA6 1988) (using similar analysis to hold that Federal Employees Compensation Act benefit determinations are not covered by the EAJA). The Court of Appeals for the Ninth Circuit has determined that administrative deportation proceedings are within the scope of the EAJA. Escobar Ruiz v. INS, 838 F 2d 1020 (1988) (en banc).

         E. g., 6 U. S. C. § 504(a)(2) (“A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section ...”); § 504(c)(2) (“If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a) . . .”); § 504(d) (“Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise”) (emphases added).

       The argument was stronger in Hudson because the legislative history of administrative EAJA explicitly precluded its application to the Social Security proceedings involved in that case, and because the Court’s argument against application of expressio unius was weaker than the argument made here against application of the sovereign immunity canon.

       The 1985 House Report on EAJA’s reenactment observed that the actual cost of awards in administrative adjudications was only a tiny fraction of what had originally been estimated. The 1980 House Report had projected $19.4 million in fiscal year (FY) 1982, $21.3 million in FY 1983, and $22.4 million in FY 1984, for a total of $63.1 million. See House Report, at 23. The actual outlays totaled only about $158,000 — roughly one-quarter of one percent of the original estimate. See H. R. Rep. No. 99-120, pp. 8-9 (1985). The 1985 Report describes this situation as a “problem in implementing the Act” caused by overly narrow judicial and agency interpretations.


source: Caselaw Access Project

author: Justice Stevens Justice Scalia,

license: Public Domain

text:
    UNION BANK v. WOLAS, chapter 7 trustee for the ESTATE OF ZZZZ BEST CO., INC.
    No. 90-1491.
    Argued November 5, 1991
    Decided December 11, 1991

      Stevens, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, post, p. 163.

      John A. Graham argued the cause for petitioner. With him on the briefs were Lesley Anne Hawes, Donald Robert Meyer, and Stephen Howard Weiss.

      Herbert Wolas, pro se, argued the cause for respondent. With him on the brief was Terry A. Ickowicz.

       Briefs of amici curiae urging reversal were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the American Council of Life Insurance et al. by Phillip E. Stano, Robert M. Zinman, Richard E. Barnsback, Bruce Hyman, and Christopher F. Graham; for the California Bankers Association by Robert L. Morrison and Kenneth N. Russak; for the New York Clearing House Association by Richard H. Klapper, John L. Warden, Robinson B. Lacy, and Michael M. Wiseman; and for Robert Morris Associates by Raymond K. Denworth, Jr.

   Justice Stevens

delivered the opinion of the Court.

Section 547(b) of the Bankruptcy Code, 11 U. S. C. § 547(b), authorizes a trustee to avoid certain property transfers made by a debtor within 90 days before bankruptcy. The Code makes an exception, however, for transfers made in the ordinary course of business, § 547(c)(2). The question presented is whether payments on long-term debt may qualify for that exception.

On December 17,1986, ZZZZ Best Co., Inc. (Debtor), borrowed $7 million from petitioner, Union Bank (Bank). On July 8, 1987, the Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code. During the preceding 90-day period, the Debtor had made two interest payments totaling approximately $100,000 and had paid a loan commitment fee of about $2,500 to the Bank. After his appointment as trustee of the Debtor’s estate, respondent filed a complaint against the Bank to recover those payments pursuant to § 547(b).

The Bankruptcy Court found that the loans had been made “in the ordinary course of business or financial affairs” of both the Debtor and the Bank, and that both interest payments as well as the payment of the loan commitment fee had been made according to ordinary business terms and in the ordinary course of business. As a matter of law, the Bankruptcy Court concluded that the payments satisfied the requirements of § 547(c)(2) and therefore were not avoidable by the trustee. The District Court affirmed the Bankruptcy Court’s summary judgment in favor of the Bank.

Shortly thereafter, in another case, the Court of Appeals held that the ordinary course of business exception to avoidance of preferential transfers was not available to long-term creditors. In re CHG Int'l, Inc., 897 F. 2d 1479 (CA9 1990). In reaching that conclusion, the Court of Appeals relied primarily on the policies underlying the voidable preference provisions and the state of the law prior to the enactment of the 1978 Bankruptcy Code and its amendment in 1984. Thus, the Ninth Circuit concluded, its holding in CHG Int'l, Inc. dictated a reversal in this case. 921 F. 2d 968, 969 (1990). The importance of the question of law decided by the Ninth Circuit, coupled with the fact that the Sixth Circuit had interpreted § 547(c)(2) in a contrary manner, In re Finn, 909 F. 2d 903 (1990), persuaded us to grant the Bank's petition for certiorari. 500 U. 5. 915 (1991).

I

We shall discuss the history and policy of § 547 after examining its text. In subsection (b), Congress broadly authorized bankruptcy trustees to "avoid any transfer of an interest of the debtor in property" if five conditions are satisfied and unless one of seven exceptions defined in subsection (c) is applicable. In brief, the five characteristics of a voidable preference are that it (1) benefit a creditor; (2) be on account of antecedent debt; (3) be made while the debtor was insolvent; (4) be made within 90 days before bankruptcy; and (5) enable the creditor to receive a larger share of the estate than if the transfer had not been made. Section 547 also provides that the debtor is presumed to have been insolvent during the 90-day period preceding bankruptcy. § 547(f). In this case, it is undisputed that all five of the foregoing conditions were satisfied and that the interest and loan commitment fee payments were voidable preferences unless excepted by subsection (c)(2).

The most significant feature of subsection (c)(2) that is relevant to this case is the absence of any language distinguishing between long-term debt and short-term debt. That subsection provides:

“The trustee may not avoid under this section a transfer—
“(2) to the extent that such transfer was—
“(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
“(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
“(C) made according to ordinary business terms.”

Instead of focusing on the term of the debt for which the transfer was made, subsection (c)(2) focuses on whether the debt was incurred, and payment made, in the “ordinary course of business or financial affairs” of the debtor and transferee. Thus, the text provides no support for respondent’s contention that § 547(c)(2)’s coverage is limited to short-term debt, such as commercial paper or trade debt. Given the clarity of the statutory text, respondent’s burden of persuading us that Congress intended to create or to preserve a special rule for long-term debt is exceptionally heavy. United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241-242 (1989). As did the Ninth Circuit, respondent relies on the history and the policies underlying the preference provision.

II

The relevant history of §547 contains two chapters, one of which clearly supports, and the second of which is not inconsistent with, the Bank’s literal reading of the statute. Section 547 was enacted in 1978 when Congress overhauled the Nation’s bankruptcy laws. The section was amended in 1984. For purposes of the question presented in this case, the original version of §547 differed in one significant respect from the current version: It contained a provision that the ordinary course of business exception did not apply unless the payment was made within 45 days of the date the debt was incurred. That provision presumably excluded most payments on long-term debt from the exception. In 1984 Congress repealed the 45-day limitation but did not substitute a comparable limitation. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, § 462(c), 98 Stat. 378.

Respondent contends that this amendment was intended to satisfy complaints by issuers of commercial paper and by trade creditors that regularly extended credit for periods of more than 45 days. Furthermore, respondent continues, there is no evidence in the legislative history that Congress intended to make the ordinary course of business exception available to conventional long-term lenders. Therefore, respondent argues, we should follow the analysis of the Ninth Circuit and read § 547(c)(2) as protecting only short-term debt payments. Cf. In re CHG Int’l, 897 F. 2d, at 1484.

We need not dispute the accuracy of respondent’s description of the legislative history of the 1984 amendment in order to reject his conclusion. For even if Congress adopted the 1984 amendment to redress particular problems of specific short-term creditors, it remains true that Congress redressed those problems by entirely deleting the time limitation in § 547(c)(2). The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning. Toibb v. Radloff, 501 U. S. 157, 164 (1991).

Respondent also relies on the history of voidable preferences prior to the enactment of the 1978 Bankruptcy Code. The text of the preference provision in the earlier Bankruptcy Act did not specifically include an exception for payments made in the ordinary course of business. The courts had, however, developed what is sometimes described as the “current expense” rule to cover situations in which a debtor’s payments on the eve of bankruptcy did not diminish the net estate because tangible assets were obtained in exchange for the payment. See Marshall v. Florida Nat. Bank of Jacksonville, 112 F. 2d 380, 382 (CA5 1940); 3 Collier on Bankruptcy ¶ 60.23, p. 873 (14th ed. 1977). Without such an exception, trade creditors and other suppliers of necessary goods and services might have been reluctant to extend even short-term credit and might have required advance payment instead, thus making it difficult for many companies in temporary distress to have remained in business. Respondent argues that Congress enacted § 547(c)(2) in 1978 to codify that exception, and therefore the Court should construe § 547(c)(2) as limited to the confines of the current expense rule.

This argument is not compelling for several reasons. First, it is by no means clear that § 547(c)(2) should be construed as the statutory analogue of the judicially crafted current expense rule because there are other exceptions in § 547(c) that explicitly cover contemporaneous exchanges for new value. Those provisions occupy some (if not all) of the territory previously covered by the current expense rule. Nor has respondent directed our attention to any extrinsic evidence suggesting that Congress intended to codify the current expense rule in § 547(c)(2).

The current expense rule developed when the statutory preference provision was significantly narrower than it is today. To establish a preference under the Bankruptcy Act, the trustee had to prove that the challenged payment was made at a time when the creditor had “reasonable cause to believe that the debtor [was] insolvent.” 11 U. S. C. § 96(b) (1976 ed.). When Congress rewrote the preference provision in the 1978 Bankruptcy Code, it substantially enlarged the trustee’s power to avoid preferential transfers by eliminating the reasonable cause to believe requirement for transfers made within 90 days of bankruptcy and creating a presumption of insolvency during that period. See 11 U. S. C. §§ 547(b), (c)(2), (f); H. R. Rep. No. 95-595, p. 178 (1977). At the same time, Congress created a new exception for transfers made in the ordinary course of business, 11 U. S. C. § 547(c)(2). This exception was intended to “leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy.” H. R. Rep. No. 95-595, at 373.

In light of these substantial changes in the preference provision, there is no reason to assume that the justification for narrowly confining the “current expense” exception to trade creditors before 1978 should apply to the ordinary course of business exception under the 1978 Code. Instead, the fact that Congress carefully reexamined and entirely rewrote the preference provision in 1978 supports the conclusion that the text of § 547(c)(2) as enacted reflects the deliberate choice of Congress.

III

The Bank and the trustee agree that § 547 is intended to serve two basic policies that are fairly described in the House Committee Report. The Committee explained:

“A preference is a transfer that enables a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankrupt estate. The purpose of the preference section is two-fold. First, by permitting the trustee to avoid prebankruptcy transfers that occur within a short period before bankruptcy, creditors are discouraged from racing to the courthouse to dismember the debtor during his slide into bankruptcy. The protection thus afforded the debtor often enables him to work his way out of a difficult financial situation through cooperation with all of his creditors. Second, and more important, the preference provisions facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor. Any creditor that received a greater payment than others of his class is required to disgorge so that all may share equally. The operation of the preference section to deter ‘the race of diligence’ of creditors to dismember the debtor before bankruptcy furthers the second goal of the preference section — that of equality of distribution.” Id., at 177-178.

As this comment demonstrates, the two policies are not entirely independent. On the one hand, any exception for a payment on account of an antecedent debt tends to favor the payee over other creditors and therefore may conflict with the policy of equal treatment. On the other hand, the ordinary course of business exception may benefit all creditors by deterring the “race to the courthouse” and enabling the struggling debtor to continue operating its business.

Respondent places primary emphasis,- as did the Court of Appeals, on the interest in equal distribution. See In re CHG Int’l, 897 F. 2d, at 1483-1485. When a debtor is insolvent, a transfer to one creditor necessarily impairs the claims of the debtor’s other unsecured and undersecured creditors. By authorizing the avoidance of- such preferential transfers, § 547(b) empowers the trustee to restore equal status to all creditors. Respondent thus contends that the ordinary course of business exception should be limited to short-term debt so the trustee may order that preferential long-term debt payments be returned to the estate to be distributed among all of the creditors.

But the statutory text — which makes no distinction between short-term debt and long-term debt — precludes an analysis that divorces the policy of favoring equal distribution from the policy of discouraging creditors from racing to the courthouse to dismember the debtor. Long-term creditors, as well as trade creditors, may seek a head start in that race. Thus, even if we accept the Court of Appeals’ conclusion that the availability of the ordinary business exception to long-term creditors does not directly further the policy of equal treatment, we must recognize that it does further the policy of deterring the race to the courthouse and, as the House Report recognized, may indirectly further the goal of equal distribution as well. ' Whether Congress has wisely balanced the sometimes conflicting policies underlying § 547 is not a question that we are authorized to decide.

IV

In sum, we hold that payments on long-term debt, as well as payments on short-term debt, may qualify for the ordinary course of business exception to the trustee’s power to avoid preferential transfers. We express no opinion, however, on the question whether the Bankruptcy Court correctly concluded that the Debtor’s payments of interest and the loan commitment fee qualify for the ordinary course of business exception, § 547(e)(2). In particular, we do not decide whether the loan involved in this case was incurred in the ordinary course of the Debtor’s business and of the Bank’s business, whether the payments were made in the ordinary course of business, or whether the payments were made according to ordinary business terms. These questions remain open for the Court of Appeals on remand.

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

It is so ordered.

Justice Scalia,

concurring.

I join the opinion of the Court, including Parts II and III, which respond persuasively to legislative-history and policy arguments made by respondent. It is regrettable that we have a legal culture in which such arguments have to be addressed (and are indeed credited by a Court of Appeals), with respect to a statute utterly devoid of language that could remotely be thought to distinguish between long-term and short-term debt. Since there was here no contention of a “scrivener’s error” producing an absurd result, the plain text of the statute should have made this litigation unnecessary and unmaintainable.

       The Bankruptcy Court found that the Bank and Debtor executed a revolving credit agreement on December 16, 1986, in which the Bank agreed to lend the Debtor $7 million in accordance with the terms of a promissory note to be executed and delivered by the Debtor. No. 87-13692 (Bkrtcy. Ct. CD Cal., Aug. 22, 1988), App. to Pet. for Cert. 12a. On December 17, 1986, the Debtor executed and delivered to the Bank a promissory note in the principal sum of $7 million. The promissory note provided that interest would be payable on a monthly basis and would accrue on the principal balance at a rate of 0.65% per annum in excess of the Bank’s reference rate. Ibid.

       App. to Pet. for Cert. 14a.

        Ibid.

        In re ZZZZ Best Co., Inc., No. 88-6285, 1989 U. S. Dist. LEXIS 17500, *1 (CD Cal., Aug. 4, 1989).

       In so holding, the Ninth Circuit rejected the Bank's argument that the revolving line of credit in this case was not "long-term" because it was for less than one year. 921 F. 2d, at 969. Because we hold that the ordinary course of business exception applies to payments on long-term as well as short-term debt, we need not decide whether the revolving line of credit was a "long-term" debt.

       11 U. S. C. § 547(b) provides:
      "Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property-
      "(1) to or for the benefit of a creditor;
      "(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
      "(3) made while the debtor was insolvent;
      "(4) made-
      "(A) on or within 90 days before the date of the ffling of the petition; or
      "(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
      "(5) that enables such creditor to receive more than such creditor would receive if-
      "(A) the case were a case under chapter 7 of this title;
      "(B) the transfer had not been made; and
      "(C) such creditor received payment of such debt to the extent provided by the provisions of this title."

       Nor does the definitional section of the Bankruptcy Code, which defines the term “debt” broadly as a “liability on a claim,” 11 U. S. C. § 101(11), distinguish between short-term debt and long-term debt.

       As enacted in 1978, § 547(c) provided, in relevant part:
      “The trustee may not avoid under this section a transfer—

      “(2) to the extent that such transfer was—
      “(A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee;
      “(B) made not later than U5 days after such debt was incurred;

      “(C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
      “(D) made according to ordinary business terms.” 92 Stat. 2598 (emphasis added).

       We use the term “presumably” because it is not necessary in this case to decide whether monthly interest payments on long-term debt were protected by the initial version of § 547(c)(2). Cf. In re Iowa Premium Serv. Co., Inc., 695 F. 2d 1109 (CA8 1982) (en banc) (holding that interest obligations are “incurred” when they become due, rather than when the promissory note is signed). We refer to “most” instead of “all” long-term debt payments because of the possibility that a debtor’s otherwise avoidable payment was made within 45 days of the date the long-term loan was made.

       Because payments to a commercial paper purchaser within 90 days prior to bankruptcy may be preferential transfers under § 547(b), a purchaser could be assured that the payment would not be avoided under the prior version of § 547(c)(2) only if the commercial paper had a maturity of 45 days or less. Commercial issuers thus complained that the 45-day limitation lowered demand for commercial paper with a maturity in excess of 45 days. See Hearings on S. 3023 before the Subcommittee on Judicial Machinery of the Senate Committee on the Judiciary, 96th Cong., 2d Sess., 8-27 (1980) (statements of George Van Cleave, partner, Goldman, Sachs & Co., and James Ledinsky, Senior Vice President, A. G. Becker & Co.).

       Trade creditors stated that normal payment periods in many industries exceeded 45 days and complained that the arbitrary 45-day limitation in § 547(c)(2) deprived these trade creditors of the protection of the ordinary course of business exception to the trustee’s power to avoid preferential transfers. See, e. g., Hearings on Bankruptcy Reform Act of 1978 before the Subcommittee on Courts of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 259-260 (1981) (statement of Vyto Gestautas on behalf of the National Association of Credit Management).

       Section 60 of the 1898 Bankruptcy Act, as amended and codified in 11 U. S. C. § 96 (1976 ed.), provided in relevant part:
      “(a)(1) A preference is a transfer, as defined in this title, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this title, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.

      “(b) Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent. Where the preference is voidable, the trustee may recover the property ... .”

       Thus, for example, § 547(c)(1) exempts a transfer to the extent that it was a “contemporaneous exchange for new value given to the debtor,” and § 547(c)(4) exempts a transfer to a creditor “to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor . ..

       In fact, the legislative history apparently does not even mention the current expense rule. See Broome, Payments on Long-Term Debt as Voidable Preferences: The Impact of the 1984 Bankruptcy Amendments, 1987 Duke L. J. 78, 97.

       Indeed, the House Committee Report concludes its discussion of the trustee’s avoidance powers with the observation that the language in the preference section of the earlier Bankruptcy Act was “hopelessly complex” and had been “subject to varying interpretations. The bill undoes the numerous amendments that have been heaped on section 60 during the past 40 years, and proposes a unified and coherent section to deal with the problems created by prebankruptcy preferential transfers.” H. R. Rep. No. 95-595, p. 179 (1977). Respondent’s assumption that § 547(c)(2) was intended to preserve pre-existing law is at war with this legislative history.


text:
    UNITED STATES DEPARTMENT OF STATE v. RAY et al.
    No. 90-747.
    Argued October 9, 1991
    Decided December 16, 1991

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’ConnoR, and Souter, JJ., joined, and in all but Part III of which Scalia and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy, J., joined, post, p. 179. Thomas, J., took no part in the consideration or decision of the case.

      Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Leonard Schaitman, and Bruce G. Forrest.

      Michael Dean Ray, pro se, argued the cause for respondents. With him on the brief were Neil Dwight Kolner and Eric J. Sinrod.

       Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Debra A Valentine, David L. Sobel, John A Powell, Lucas Guttentag, and Gary M. Stern; for the American Newspaper Publishers Association et al. by Robert C. Bernius, René P. Milam, Barbara Wartelle Wall, Jane E. Kirtley, Richard M. Schmidt, Bruce W. Sanford, James E. Grossberg, and George Freeman; and for the Lawyers Committee for Human Rights et al. by David C. Vladeck and Alan B. Morrison.

   Justice Stevens

delivered the opinion of the Court.

In response to a Freedom of Information Act (FOIA) request, the Department of State produced 25 documents containing information about Haitian nationals who had attempted to immigrate illegally to the United States and were involuntarily returned to Haiti. Names of individual Haitians had been deleted from 17 of the documents. The question presented is whether these deletions were authorized by FOIA Exemption 6, which provides that FOIA disclosure requirements do not apply to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U. S. C. § 552(b)(6).

I

Haiti is a densely populated nation located about 500 nautical miles southeast of Florida on the western third of the Caribbean Island of Hispaniola. Prior to 1981, its history of severe economic depression and dictatorial government motivated large numbers of its citizens to emigrate to Florida without obtaining the permission of either the Haitian Government or the Government of the United States. A small number of those undocumented aliens were eligible for asylum as political refugees, but almost all of them were subject to deportation if identified and apprehended.

In response to this burgeoning “illegal migration by sea of large numbers of undocumented aliens” from Haiti and other countries, President Reagan ordered the Coast Guard and the Secretary of State to intercept vessels carrying undocumented aliens and, except for passengers who qualified for refugee status, to return them to their point of origin. See Presidential Proclamation No. 4865, 3 CFR 50 (1981 Comp.); Exec. Order No. 12324, 3 CFR 180 (1981 Comp.). The President also directed the Secretary of State to enter into “cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.” Ibid. Following this directive, the Secretary of State obtained an assurance from the Haitian Government that interdicted Haitians would “not be subject to prosecution for illegal departure.” See Agreement on Migrants — Interdiction, Sept. 23, 1981, United States-Haiti, 33 U. S. T. 3559, 3560, T. I. A. S. No. 10241. In order to monitor compliance with that assurance, State Department personnel conducted confidential interviews with a “representative sample” of unsuccessful emigrants about six months after their involuntary return. All but one or two of the emigrants reported that they had not been harassed or prosecuted since their return to Haiti.

Respondents in this case are a Florida lawyer who represents undocumented Haitian nationals seeking political asylum in the United States and three of his clients. In immigration proceedings, respondents are attempting to prove that Haitians who immigrated illegally will face a well-founded fear of persecution if they return to their homeland and therefore are refugees entitled to asylum in this country. Relying in part on the evidence in the reports of the interviews with former passengers on vessels interdicted by the Coast Guard, the Government has taken the position in those proceedings that respondents’ fear of persecution is not well founded.

In order to test the accuracy of the Government’s assertion that undocumented Haitian nationals have not been persecuted upon their return to Haiti, respondents made a series of FOIA requests to three Government agencies for copies of reports of the interviews by State Department personnel with persons who had been involuntarily returned to Haiti. Insofar as relevant to the question before us, the net result of these requests was the production by the State Department of 25 documents, containing approximately 96 pages, which describe a number of interviews with specific returnees and summarize the information that had been obtained during successive periods. Thus, for example, a summary prepared in March 1985 reported that since the followup program had begun 3V2 years earlier, United States embassy officials in Haiti had interviewed 812 returnees, 22.83 percent of the total migrant interdictee population. During that time, the report continued, “only two interdictees have mentioned a threat or mistreatment by the authorities. In one case the claim was unverifiable as there were no witnesses present, in the second case higher authorities intervened to prevent mistreatment by a rural policeman.” In 17 of the documents, the information related to individual interviews, but the names and other identifying information had been redacted before the documents were delivered to respondents. The only issue for us to decide is whether that redaction was lawful.

The District Court found that any invasion of privacy from the “mere act of disclosure of names and addresses would be de minimis and little more than' speculation” and was clearly outweighed by the public interest in the “safe relocation of returned Haitians.” Ray v. United States Department of Justice, 725 F. Supp. 502, 505 (SD Fla. 1989). It therefore ordered the Department to produce the redacted information.

The Court of Appeals affirmed. Ray v. United States Department of Justice, 908 F. 2d 1549 (CA11 1990). For two reasons, however, it disagreed with the District Court’s “de minimis” characterization of the privacy interest at stake. First, it noted that respondents wanted the redacted information in order to enable them to contact the interviewees directly and to question them about their treatment by the Haitian Government. Id., at 1554. Second, the Court recognized that “the returnees were promised confidentiality before they talked with U. S. government officials.” Ibid. Thus, the Court of Appeals began its balancing process “by acknowledging that there are significant privacy interests at stake.” Ibid. It nevertheless concluded that those interests were outweighed by the public interest in learning whether the Government is “adequately monitoring Haiti’s compliance with its obligation not to persecute returnees” and “is honest to the public” when its officials express the opinion that Haiti is adhering to that obligation. Id., at 1555. The court recognized that the redacted information would not, in and of itself, tell respondents anything about Haiti’s treatment of the returnees or this Government’s honesty, but it concluded that the indirect benefit of giving respondents the means to locate the Haitian returnees and to cross-examine them provided a public value that required disclosure. Id., at 1555-1556.

We granted certiorari to review the Court of Appeals’ construction of Exemption 6, 499 U. S. 904 (1991), and now reverse.

II

It is appropriate to preface our evaluation of the narrow question that we must decide with an identification of certain matters that have been resolved in earlier stages of the litigation.

After the District Court’s initial decision, the State Department filed additional affidavits in support of a claim that the redacted information was protected from disclosure by Exemption 1, the exemption for classified documents, and also by Exemption 7(C), the exemption for law enforcement records which, if released, “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The District Court ruled that the Government had waived those claims by not raising them until after its Exemption 6 claim had been denied, 725 F. Supp., at 505, and the Court of Appeals held that that ruling was not an abuse of discretion, 908 F. 2d, at 1557. We denied the Government’s certiorari petition insofar as it sought review of that question, but mention it here because the Government’s burden in establishing the requisite invasion of privacy to support an Exemption 6 claim is heavier than the standard applicable to Exemption 7(C). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 756 (1989). To prevail in this case under Exemption 6, the Government must establish that the invasion of the interviewees’ privacy would be “clearly unwarranted.”

In attempting to meet its burden, the Government relies, in part, on the fact that the interviews with the Haitian returnees were conducted pursuant to assurances of confidentiality. In this Court, respondents have suggested that the texts of some of the reported interviews do not expressly mention such assurances. Neither the District Court nor the Court of Appeals, however, questioned the fact that promises of confidentiality had actually been made; on the contrary, after finding that such assurances had been made, both courts concluded as a matter of law that they did not outweigh the public interest in disclosure. Insofar as the promises of confidentiality are relevant, we of course accept the factual predicate for the Court of Appeals decision.

That court’s conclusion rested, in part, on what it described as the public interest in learning “whether our government is honest to the public about Haiti’s treatment of returnees.” 908 F. 2d, at 1555. The Court of Appeals did not, however, suggest that there was any evidence in the State Department records that was inconsistent with any public statement made by Government officials, or that there was any other factual basis for questioning the honesty of its officials. Thus, as with the assurances of confidentiality, we have no occasion to question the Government’s version of the relevant facts.

We note, finally, that respondents have never questioned the Government’s position that the documents at issue consist of “personnel and medical files and similar files” within the meaning of Exemption 6. Because the 17 reports from which identifying information was deleted unquestionably apply to the particular individuals who had been returned and interviewed, they are “similar files” within the meaning of the exemption. See Department of State v. Washington Post Co., 456 U. S. 595, 602 (1982). The only question, therefore, is whether the disclosure of the unredacted interview reports “would constitute a clearly unwarranted invasion of that person’s privacy.”

III

The Freedom of Information Act was enacted to facilitate public access to Government documents. John Doe Agency v. John Doe Corp., 493 U. S. 146, 151 (1989). The statute was designed “‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’” Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents. Ibid.; Department of Justice v. Reporters Comm., 489 U. S., at 755. That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document. See 5 U.S. C. § 552(a)(4)(B).

The redaction procedure is, however, expressly authorized by FOIA. Congress thus recognized that the policy of informing the public about the operation of its Government can be adequately served in some cases without unnecessarily compromising individual interests in privacy. Accordingly, in the leading case interpreting Exemption 6, we held that the statute required disclosure of summaries of Air Force Academy disciplinary proceedings “with personal references or other identifying information deleted.” Rose, 425 U. S., at 380. The question in this case is whether petitioner has discharged its burden of demonstrating that the disclosure of the contents of the interviews with the Haitian returnees adequately served the statutory purpose and that the release of the information identifying the particular interviewees would constitute a clearly unwarranted invasion of their privacy.

As we held in Rose, the text of the exemption requires the Court to balance “the individual’s right of privacy” against the basic policy of opening “agency action to the light of public scrutiny,” id., at 372. The District Court and the Court of Appeals properly began their analysis by considering the significance of the privacy interest at stake. We are persuaded, however, that several factors, when considered together, make the privacy interest more substantial than the Court of Appeals recognized.

First, the Court of Appeals appeared to assume that respondents sought only the names and addresses of the interviewees. But respondents sought — and the District Court ordered that the Government disclose — the unredacted interview summaries. As the Government points out, many of these summaries contain personal details about particular interviewees. Thus, if the summaries are released without the names redacted, highly personal information regarding marital and employment status, children, living conditions, and attempts to enter the United States would be linked publicly with particular, named individuals. Although disclosure of such personal information constitutes only a de minimis invasion of privacy when the identities of the interviewees are unknown, the invasion of privacy becomes significant when the personal information is linked to particular interviewees. Cf. id., at 380-381.

In addition, disclosure of the unredacted interview summaries would publicly identify the interviewees as people who cooperated with a State Department investigation of the Haitian Government’s compliance with its promise to the United States Government not to prosecute the returnees. The Court of Appeals failed to acknowledge the significance of this fact. As the State Department explains, disclosure of the interviewees’ identities could subject them or their families to “embarrassment in their social and community relationships.” App. 43. More importantly, this group of interviewees occupies a special status: They left their homeland in violation of Haitian law and are protected from prosecution by their government’s assurance to the State Department. Although the Department’s monitoring program indicates that that assurance has been fulfilled, it nevertheless remains true that the State Department considered the danger of mistreatment sufficiently real to necessitate that monitoring program. How significant the danger of mistreatment may now be is, of course, impossible to measure, but the privacy interest in protecting these individuals from any retaliatory action that might result from a renewed interest in their aborted attempts to emigrate must be given great weight. Indeed, the very purpose of respondents’ FOIA request is to attempt to prove that such a danger is present today.

We are also persuaded that the Court of Appeals gave insufficient weight to the fact that the interviews had been conducted pursuant to an assurance of confidentiality. We agree that such a promise does not necessarily prohibit disclosure, but it has a special significance in this case. Not only is it apparent that an interviewee who had been given such an assurance might have been willing to discuss private matters that he or she would not otherwise expose to the public — and therefore would regard a subsequent interview by a third party armed with that information as a special affront to his or her privacy — but, as discussed above, it is also true that the risk of mistreatment gives this group of interviewees an additional interest in assuring that their anonymity is maintained.

Finally, we cannot overlook the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports. As the Court of Appeals properly recognized, the intent to interview the returnees magnifies the importance of maintaining the confidentiality of their identities.

IV

Although the interest in protecting the privacy of the redacted information is substantial, we must still consider the importance of the public interest in its disclosure. For unless the invasion of privacy is “clearly unwarranted,” the public interest in disclosure must prevail. As we have repeatedly recognized, FOIA’s “basic policy of ‘full agency disclosure unless information is exempted under clearly delineated statutory language,’... focuses on the citizens’ right to be informed about ‘what their government is up to.’ Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose.” Department of Justice v. Reporters Comm., 489 U. S., at 773 (quoting Department of Air Force v. Rose, 425 U. S., at 360-361) (internal citations omitted). Thus, the Court of Appeals properly recognized that the public interest in knowing whether the State Department has adequately monitored Haiti’s compliance with its promise not to prosecute returnees is cognizable under FOIA. We are persuaded, however, that this public interest has been adequately served by disclosure of the redacted interview summaries and that disclosure of the unredacted documents would therefore constitute a clearly unwarranted invasion of the interviewees’ privacy.

The unredacted portions of the documents that have already been released to respondents inform the reader about the State Department’s performance of its duty to monitor Haitian compliance with the promise not to prosecute the returnees. The documents reveal how many returnees were interviewed, when the interviews took place, the contents of individual interviews, and details about the status of the interviewees. The addition of the redacted identifying information would not shed any additional light on the Government’s conduct of its obligation.

The asserted public interest on which respondents rely stems not from the disclosure of the redacted information itself, but rather from the hope that respondents, or others, may be able to use that information to obtain additional information outside the Government files. The Government argues that such “derivative use” of requested documents is entirely beyond the purpose of the statute and that we should adopt a categorical rule entirely excluding the interest in such use from the process of balancing the public interest in disclosure against the interest in privacy. There is no need to adopt such a rigid rule to decide this case, however, because there is nothing in the record to suggest that a second series of interviews with the already-interviewed returnees would produce any relevant information that is not set forth in the documents that have already been produced. Mere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy. Accordingly, we need not address the question whether a “derivative use” theory would ever justify release of information about private individuals.

We are also unmoved by respondents’ asserted interest in ascertaining the veracity of the interview reports. There is not a scintilla of evidence, either in the documents themselves or elsewhere in the record, that tends to impugn the integrity of the reports. We generally accord Government records and official conduct a presumption of legitimacy. If a totally unsupported suggestion that the interest in finding out whether Government agents have been telling the truth justified disclosure of private materials, Government agencies would have no defense against requests for production of private information. What sort of evidence of official misconduct might be sufficient to identify a genuine public interest in disclosure is a matter that we need not address in this case. On the record before us, we are satisfied that the proposed invasion of the serious privacy interest of the Haitian returnees is “clearly unwarranted.”

The judgment of the Court of Appeals is

Reversed.

Justice Thomas took no part in the consideration or decision of this case.

Justice Scalia,

with whom Justice Kennedy joins, concurring in part and concurring in the judgment.

I join the Court’s judgment and its opinion except Part III.

Exemption 6 of the Freedom of Information Act (FOIA) provides that the Act’s disclosure requirements do not apply to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U. S. C. § 552(b)(6). As the Court recognizes, ante, at 175, this requires an agency to balance the interest in personal privacy against the public interest in disclosure. Department of Air Force v. Rose, 425 U. S. 352, 372 (1976). In the context of evaluating the public interest side of the balance, the parties in this case have vigorously disputed whether an agency must consider so-called “derivative” uses — i. e., not only the intrinsic public value of the records, but also, in this case, the potential that additional, publicly valuable information may be generated by further investigative efforts that disclosure of the records will make possible.

The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible. Perhaps FOIA would be a more sensible law if the Exemption applied whenever disclosure would “cause,” “produce,” or “lead to” a clearly unwarranted invasion of personal privacy, see, e.g., National Assn. of Retired Fed. Employees v. Horner, 279 U. S. App. D. C. 27, 32, 879 F. 2d 873, 878 (1989), cert. denied, 494 U. S. 1078 (1990) — though the practical problems in implementing such a provision would be considerable. That is not, however, the statute Congress enacted. Since the question under 5 U. S. C. § 552(b)(6) is whether “disclosure” would “constitute a clearly unwarranted invasion of personal privacy” (emphasis added); and since we have repeatedly held that FOIA’s exemptions “‘must be narrowly construed,’” John Doe Agency v. John Doe Corp., 493 U. S. 146, 152 (1989) (quoting Rose, supra, at 361); it is unavoidable that the focus, in assessing a claim under Exemption 6, must be solely upon what the requested information reveals, not upon what it might lead to. Arieff v. United States Dept. of Navy, 229 U. S. App. D. C. 430, 436, 712 F. 2d 1462, 1468 (1983) (Scalia, J.). That result is in accord with the general policy of FOIA, which we referred to in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 771 (1989), that the particular purposes for which a request is made are irrelevant.

The Court today pointedly abstains from deciding the derivative-use issue, saying that, since the record does not support the existence of any second-order public benefits, “we need not address the question whether a ‘derivative use’ theory would ever justify release of information about private individuals.” Ante, at 179. I am content with that. It seems to me, however, that since derivative use on the public-benefits side, and derivative use on the personal-privacy side must surely go together (there is no plausible reason to allow it for the one and bar it for the other), the Court should have been consistent in its abstention. It should not, in the portion of its opinion discussing the privacy interest (Part III), have discussed such matters as the “retaliatory action that might result from a renewed interest in [the interviewees’] aborted attempts to emigrate,” and “the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports.” Ante, at 177. This speculation is unnecessary to the decision since, as the Court notes, ante, at 176, each of the unre-dacted documents requested by respondents would disclose that a particular person had agreed, under a pledge of confidentiality, to report to a foreign power concerning the conduct of his own government. This is information that a person would ordinarily not wish to be known about himself — and thus constitutes an invasion of personal privacy. Cf. Department of State v. Washington Post Co., 456 U. S. 595 (1982). Since there is nothing on the other side of the equation — the Court finding, quite correctly, that the public interests here have been “adequately served by disclosure of the redacted interview summaries,” ante, at 178 — the question whether this invasion of privacy is “clearly unwarranted” must be answered affirmatively and the assertion of Exemption 6 must be sustained.

I choose to believe the Court’s explicit assertion that it is not deciding the derivative-use point, despite what seem to me contrary dicta elsewhere in the opinion.

       Article 1.2 of the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U. N. T. S. 268, to which the United States acceded in 1968,19 U. S. T. 6223, 6261, T. I. A. S. No. 6577, defines a “refugee” as a person absent from his or her country due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” The Protocol obligates the United States to comply with the substantive requirements of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, July 28,1951,189 U. N. T. S. 150. 19 U. S. T., at 6225. Article 33.1 of the Convention, 19 U. S. T., at 6267, states: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” See generally INS v. Stevic, 467 U. S. 407, 416-418 (1984). Article 34, 19 U. S. T., at 6267, provides that “Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. ...” See generally INS v. Cardoza-Fonseca, 480 U. S. 421, 436-441 (1987).

       Respondents also sought disclosure of an alleged list of 600 Haitians who had been returned to Haiti and had not been mistreated after their arrival. The District Court found, however, that the “record fails to disclose that any documents have been improperly withheld o[r] that they, indeed, exist,” Ray v. United States Department of Justice, 725 F. Supp. 502, 504 (SD Fla. 1989), and the Eleventh Circuit affirmed this finding, Ray v. United States Department of Justice, 908 F. 2d 1549, 1559-1560 (1990). We have no reason to question this finding and, therefore, we are concerned only with the 25 documents containing summaries of interviews with illegal Haitian immigrants who were involuntarily returned to Haiti.

       Plaintiffs’ Notice of Filing Defendant State Department’s Edited Documents 12.

       The May 1985 report, the last report in the record, states that as of that date, embassy officials had interviewed 1,052 of the returnees, 23.28 percent of the total migrant returnee population. Id., at 96. The report concluded that the interviews provide “further evidence” that Haiti “is keeping its commitment under the 1981 Migrant Interdiction Agreement not to prosecute or harass returned migrants for their illegal departure,” but noted that “the embassy will continue its follow-up program with the goal of reaching a 25-percent interview rate of returned migrants.” Ibid.

       For example, one memorandum relates the following:
      “-is an unemployed 21-year-old living with his mother and five younger siblings in a one-room shack in Delmas. His older brother, who is employed and living in Port-au-Prince, had paid the $100 fare for_ to travel on the S/V Sainte Marie, interdicted enroute to Miami on 6/13/83.
      “-explained that he had wanted to live in Miami, although he has no family there. He never went to school and has no marketable skills. -says that he is thinking of another attempt to reach the States. He cannot find a job here and said that he would like to travel. The twelve days spent on board the S/V Sainte Marie were difficult, he admitted, but he is willing to take another chance. _emphatically said that he had had no problems from Haitian officials since his return. He has been assisted twice by the Red Cross with food and money grants totalling $60.” Attachment 2 to Declaration of John Eaves, Acting Deputy Director of the Office of Mandatory Review of the Classification and Declassification Center of the Department of State 6.

       The relevant portions of Exemptions 1, 6, and 7 read as follows:
      “(b) [The FOIA disclosure] section does not apply to matters that are—
      “(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

      “(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
      “(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy . . .5 U. S. C. § 552.

       Thus, the Court of Appeals explained:
      “We are also mindful, as the government points out, that the returnees were promised confidentiality before they talked with U. S. government officials. That, of course, is a factor that adds weight to the privacy interests at stake here, but it is not a factor that compels us to prohibit disclosure in this case.” 908 F. 2d, at 1554; see also 725 F. Supp., at 505 (“The promise of confidentiality by the State Dept, is only one factor to be considered and, in this case, is not determinative of the outcome”).

       See n. 6, supra.

       As we noted in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 755, n. 7 (1989):
      “Congress employed ... language [similar to that contained in Exemption 6] earlier in the statute to authorize an agency to delete identifying details that might otherwise offend an individual’s privacy:
      ‘“To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction.’ § 552(a)(2).”
      In addition, Congress mandated that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. ...” 5 U. S. C. § 552(b).

       See S. Rep. No. 813, 89th Cong., 1st Sess., 7 (1965) (“The authority to delete identifying details after written justification is necessary in order to be able to balance the public’s right to know with the private citizen’s right to be secure in his personal affairs which have no bearing or effect on the general public. For example, it may be pertinent to know that unseasonably harsh weather has caused an increase in public relief costs; but it is not necessary that the identity of any person so affected be made public”); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 8 (1966) (“The public has a need to know, for example, the details of an agency opinion or statement of policy on an income tax matter, but there is no need to identify the individuals involved in a tax matter if the identification has no bearing or effect on the general public”). These examples guided our analysis in Department of Justice v. Reporters Comm., supra, in which we held that criminal identification records, or “rap sheets,” were law enforcement records which, if released, “could reasonably be expected to constitute an unwarranted invasion of personal privacy” and therefore were exempt from disclosure under Exemption 7. We explained that:
      “Both public relief and income tax assessments — like law enforcement— are proper subjects of public concern. But just as the identity of the individuals given public relief or involved in tax matters is irrelevant to the public’s understanding of the Government’s operation, so too is the identity of individuals who are the subjects of rap sheets irrelevant to the public’s understanding of the system of law enforcement. For rap sheets reveal only the dry, chronological, personal history of individuals who have had brushes with the law, and tell us nothing about matters of substantive law enforcement policy that are properly the subject of public concern.” Id., at 766, n. 18.

       See n. 5, supra.

       We emphasize, however, that we are not implying that disclosure of a list of names and other identifying information is inherently and always a significant threat to the privacy of the individuals on the list. Instead, we agree with the Court of Appeals for the District of Columbia Circuit that whether disclosure of a list of names is a “ ‘significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.'” National Assn. of Retired Federal Employees v. Horner, 279 U. S. App. D. C. 27, 31, 879 F. 2d 873, 877 (1989), cert. denied, 494 U. S. 1078 (1990). As discussed infra, disclosure of the interviewees’ names would be a significant invasion of their privacy because it would subject them to possible embarrassment and retaliatory action.