source: Caselaw Access Project

author: Justice Scalia Justice Souter, Justice Stevens, Justice Kennedy,

license: Public Domain

text:
    AMERICAN DREDGING CO. v. MILLER
    No. 91-1950.
    Argued November 9, 1993
    Decided February 23, 1994

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Souter, and Ginsburg, JJ., joined, and in Part II-C of which Stevens, J., joined. Souter, J., filed a concurring opinion, post, p. 457. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. Kennedy, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 462.

      Thomas J. Wagner argued the cause for petitioner. With him on the briefs was Whitney L. Cole.

      Timothy J. Falcon argued the cause for respondent. With him on the brief were Stephen M. Wiles, John Hunter, and James A. George.

      John F. Manning argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, and Acting Deputy Solicitor General Kneedler

        Lizabeth L. Burrell and George W. Healy III filed a brief for the Maritime Law Association of the United States as amicus curiae urging reversal.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether, in admiralty-cases filed in a state court under the Jones Act, 46 U. S. C. App. § 688, and the “saving to suitors clause,” 28 U. S. C. § 1333(1), federal law pre-empts state law regarding the doctrine of forum non conveniens.

I

Respondent William Robert Miller, a resident of Mississippi, moved to Pennsylvania to seek employment in 1987. He was hired by petitioner American Dredging Company, a Pennsylvania corporation with its principal place of business in New Jersey, to work as a seaman aboard the MV John R., a tug operating on the Delaware River. In the course of that employment respondent was injured. After receiving medical treatment in Pennsylvania and New York, he returned to Mississippi where he continued to be treated by local physicians.

On December 1, 1989, respondent filed this action in the Civil District Court for the Parish of Orleans, Louisiana. He sought relief under the Jones Act, which authorizes a seaman who suffers personal injury “in the course of his employment” to bring “an action for damages at law,” 46 U. S. C. App. § 688(a), and over which state and federal courts have concurrent jurisdiction. See Engel v. Davenport, 271 U. S. 33, 37 (1926). Respondent also requested relief under general maritime law for unseaworthiness, for wages, and for maintenance and cure. See McAllister v. Magnolia Petroleum Co., 357 U. S. 221, 224 (1958) (setting forth means of recovery available to injured seaman).

The trial court granted petitioner’s motion to dismiss the action under the doctrine of forum non conveniens, holding that it was bound to apply that doctrine by federal maritime law. The Louisiana Court of Appeal for the Fourth District affirmed. 580 So. 2d 1091 (1991). The Supreme Court of Louisiana reversed, holding that Article 123(C) of the Louisiana Code of Civil Procedure, which renders the doctrine of forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts, is not preempted by federal maritime law. 595 So. 2d 615 (1992). American Dredging Company filed a petition for a writ of certiorari, which we granted. 507 U. S. 1028 (1993).

II

The Constitution provides that the federal judicial power “shall extend ... to all Cases of admiralty and maritime Jurisdiction.” U. S. Const., Art. Ill, §2, cl. 1. Federal-court jurisdiction over such cases, however, has never been entirely exclusive. The Judiciary Act of 1789 provided:

“That the district courts shall have, exclusively of the courts of the several States ... exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” §9, 1 Stat. 76-77 (emphasis added).

The emphasized language is known as the “saving to suitors clause.” This provision has its modern expression at 28 U. S. C. § 1333(1), which reads (with emphasis added):

“The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
“(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

We have held it to be the consequence of exclusive federal jurisdiction that state courts “may not provide a remedy in rem for any cause of action within the admiralty jurisdiction.” Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 124 (1924). An in rem suit against a vessel is, we have said, distinctively an admiralty proceeding, and is hence within the exclusive province of the federal courts. The Moses Taylor, 4 Wall. 411, 431 (1867). In exercising in personam jurisdiction, however, a state court may “ ‘adopt such remedies, and . . . attach to them such incidents, as it sees fit’ so long as it does not attempt to make changes in the ‘substantive maritime law.’ ” Madruga v. Superior Court of Cal., County of San Diego, 346 U. S. 556, 561 (1954) (quoting Red Cross Line, supra, at 124). That proviso is violated when the state remedy “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 216 (1917). The issue before us here is whether the doctrine of forum non conveniens is either a “characteristic feature” of admiralty or a doctrine whose uniform application is necessary to maintain the “proper harmony” of maritime law. We think it is neither.

A

Under the federal doctrine of forum non conveniens, “when an alternative forum has jurisdiction to hear [a] case, and when trial in the chosen forum would ‘establish . . . oppressiveness and vexation to a defendant. . . out of all proportion to plaintiff’s convenience,’ or when the ‘chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems,’ the court may, in the exercise of its sound discretion, dismiss the case,” even if jurisdiction and proper venue are established. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 241 (1981) (quoting Roster v. (American) Lumbermens Mut. Casualty Co., 330 U. S. 518, 524 (1947)). In Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947), Justice Jackson described some of the multifarious factors relevant to the forum non conveniens determination:

“An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained....
“Factors of public interest also have [a] place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Id., at 508-509.

Although the origins of the doctrine in Anglo-American law are murky, most authorities agree that forum non conveniens had its earliest expression not in admiralty but in Scottish estate cases. See Macmaster v. Macmaster, 11 Sess. Cas. 685, 687 (No. 280) (2d Div. Scot.) (1833); McMorine v. Cowie, 7 Sess. Cas. (2d ser.) 270, 272 (No. 48) (1st Div. Scot.) (1845); La Société du Gaz de Paris v. La Société Anonyme de Navigation “Les Armateurs Frangais,” [1926] Sess. Cas. (H. L.) 13 (1925). See generally Speck, Forum Non Conveniens and Choice of Law in Admiralty: Time for an Overhaul, 18 J. Mar. L. & Com. 185, 187 (1987); Barrett, The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380, 386-387 (1947); Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 909 (1947); but see Dainow, The Inappropriate Forum, 29 Ill. L. Rev. 867, 881, n. 58 (1935) (doctrine in Scotland was “borrowed” from elsewhere before middle of 19th century).

Even within the United States alone, there is no basis for regarding forum non conveniens as a doctrine that originated in admiralty. To be sure, within federal courts it may have been given its earliest and most frequent expression in admiralty cases. See The Maggie Hammond, 9 Wall. 435, 457 (1870); The Belgenland, 114 U. S. 355, 365-366 (1885). But the doctrine’s application has not been unique to admiralty. When the Court held, in Gilbert, supra, that forum non conveniens applied to all federal diversity cases, Justice Black’s dissent argued that the doctrine had been applied in maritime cases “[f]or reasons peculiar to the special problems of admiralty.” Id., at 513. The Court disagreed, reciting a long history of valid application of the doctrine by state courts, both at law and in equity. Id., at 504-505, and n. 4. It observed that the problem of plaintiffs’ misusing venue to the inconvenience of defendants “is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criteria for dealing with it.” Id., at 507. Our most recent opinion dealing with forum non conveniens, Piper Aircraft Co. v. Reyno, 454 U. S. 235 (1981), recognized that the doctrine “originated in Scotland, and became part of the common law of many States,” id., at 248, n. 13 (citation omitted), and treated the forum non conveniens analysis of Canada Malting Co. v. Paterson S. S., Ltd., 285 U. S. 413 (1932), an admiralty case, as binding precedent in the nonadmiralty context.

In sum, the doctrine of forum non conveniens neither originated in admiralty nor has exclusive application there. To the contrary, it is and has long been a doctrine of general application. Louisiana’s refusal to apply forum non conveniens does not, therefore, work “material prejudice to [a] characteristic featur[e] of the general maritime law. ” Southern Pacific Co. v. Jensen, 244 U. S., at 216.

B

Petitioner correctly points out that the decision here under review produces disuniformity. As the Fifth Circuit noted in Ikospentakis v. Thalassic S. S. Agency, 915 F. 2d 176, 179 (1990), maritime defendants “have access to a forum non conveniens defense in federal court that is not presently recognized in Louisiana state courts.” We must therefore consider whether Louisiana’s rule “interferes with the proper harmony and uniformity” of maritime law, Southern Pacific Co. v. Jensen, supra, at 216.

In The Lottawanna, 21 Wall. 558, 575 (1875), Justice Bradley, writing for the Court, said of the Article III provision extending federal judicial power “to all Cases of admiralty and maritime Jurisdiction”:

“One thing ... is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.”

By reason of this principle, we disallowed in Jensen the application of state workers’ compensation statutes to injuries covered by the admiralty jurisdiction. Later, in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 163-164 (1920), we held that not even Congress itself could permit such application and thereby sanction destruction of the constitutionally prescribed uniformity. We have also relied on the uniformity principle to hold that a State may not require that a maritime contract be in writing where admiralty law regards oral contracts as valid, Kossick v. United Fruit Co., 365 U. S. 731 (1961).

The requirement of uniformity is not, however, absolute. As Jensen itself recognized: “[I]t would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. That this may be done to some extent cannot be denied.” 244 U. S., at 216. A later case describes to what breadth this “some extent” extends:

“It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system[,] [b]ut this limitation still leaves the States á wide scope. State-created liens are enforced in admiralty. State remedies for wrongful death and state statutes providing for the survival of actions ... have been upheld when applied to maritime causes of action. . . . State rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance — all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity.” Romero v. International Terminal Operating Co., 358 U. S. 354, 373-374 (1959) (footnotes omitted).

It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence, or indeed is even entirely consistent within our admiralty jurisprudence. Compare Kossick, supra (state law cannot require provision of maritime contract to be in writing), with Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U. S. 310 (1955) (state law can determine effect of breach of warranty in marine insurance policy). Happily, it is unnecessary to wrestle with that difficulty today. Wherever the boundaries of permissible state regulation may lie, they do not invalidate state rejection of forum non conveniens, which is in two respects quite dissimilar from any other matter that our opinions have held to be governed by federal admiralty law: it is procedural rather than substantive, and it is most unlikely to produce uniform results.

As to the former point: At bottom, the doctrine of forum non conveniens is nothing more or less than a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined. But venue is a matter that goes to process rather than substantive rights — determining which among various competent courts will decide the case. Uniformity of process (beyond the rudimentary elements of procedural fairness) is assuredly not what the law of admiralty seeks to achieve, since it is supposed to apply in all the courts of the world. Just as state courts, in deciding admiralty cases, are not bound by the venue requirements set forth for federal courts in the United States Code, so also they are not bound by the federal common-law venue rule (so to speak) of forum non conveniens. Because the doctrine is one of procedure rather than substance, petitioner is wrong to claim support from our decision in Pope & Talbot, Inc. v. Hawn, 346 U. S. 406 (1953), which held that Pennsylvania courts must apply the admiralty rule that contributory negligence is no bar to recovery. The other case petitioner relies on, Garrett v. Moore-McCormack Co., 317 U. S. 239, 248-249 (1942), held that the traditional maritime rule placing the burden of proving the validity of a release upon the defendant pre-empts state law placing the burden of proving invalidity upon the plaintiff. In earlier times, burden of proof was regarded as “procedural” for choice-of-law purposes such as the one before us here, see, e. g., Levy v. Steiger, 233 Mass. 600, 124 N. E. 477 (1919); Restatement of Conflict of Laws §595 (1934). For many years, however, it has been viewed as a matter of substance, see Cities Service Oil Co. v. Dunlap, 308 U. S. 208, 212 (1939) — which is unquestionably the view that the Court took in Garrett, stating that the right of the plaintiff to be free of the burden of proof “inhered in his cause of action,” “was a part of the very substance of his claim and cannot be considered a mere incident of a form of procedure.” 317 U. S., at 249. Unlike burden of proof (which is a sort of default rule of liability) and affirmative defenses such as contributory negligence (which eliminate liability), forum non conveniens does not bear upon the substantive right to recover, and is not a rule upon which maritime actors rely in making decisions about primary conduct — how to manage their business and what precautions to take.

But to tell the truth, forum non conveniens cannot really be relied upon in making decisions about secondary conduct — in deciding, for example, where to sue or where one is subject to being sued. The discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application, see the quotation from Gilbert, supra, at 448-449, make uniformity and predictability of outcome almost impossible. “The forum non conveniens determination,” we have said, “is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U. S., at 257. We have emphasized that “‘[e]ach case turns on its facts’” and have repeatedly rejected the use of per se rules in applying the doctrine. Id., at 249; Koster v. (American) Lumbermens Mut. Casualty Co., 330 U. S., at 527. In such a regime, one can rarely count on the fact that jurisdiction will be declined.

C

What we have concluded from our analysis of admiralty law in general is strongly confirmed by examination of federal legislation. While there is an established and continuing tradition of federal common lawmaking in admiralty, that law is to be developed, insofar as possible, to harmonize with the enactments of Congress in the field. Foremost among those enactments in the field of maritime torts is the Jones Act, 46 U. S. C. App. § 688.

That legislation, which establishes a uniform federal law that state as well as federal courts must apply to the determination of employer liability to seamen, Garrett, supra, at 244, incorporates by reference “all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees.” 46 U. S. C. App. § 688(a). Accordingly, we have held that the Jones Act adopts “the entire judicially developed doctrine of liability” under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq. Kernan v. American Dredging Co., 355 U. S. 426, 439 (1958). More particularly, we have held that the Jones Act adopts the “uniformity requirement” of the FELA, requiring state courts to apply a uniform federal law. Garrett, supra, at 244. And — to come to the point of this excursus — despite that uniformity requirement we held in Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5 (1950), that a state court presiding over an action pursuant to the FELA “should be freed to decide the availability of the principle of forum non conveniens in these suits according to its own local law.” We declared forum non conveniens to be a matter of “local policy,” id., at 4, a proposition well substantiated by the local nature of the “public factors” relevant to the forum non conveniens determination. See Reyno, supra, at 241, and n. 6 (quoting Gilbert, 330 U. S., at 509).

We think it evident that the rule which Mayfield announced for the FELA applies as well to the Jones Act, which in turn supports the view that maritime commerce in general does not require a uniform rule of forum non conveniens. Amicus Maritime Law Association of the United States argues that “whether or not it is appropriate to analogize from FELA to the Jones Act, Mayfield cannot save the result below because the Louisiana statute abolishes the forum non conveniens doctrine in all maritime cases, not just those arising under the Jones Act.” Brief for Maritime Law Association as Amicus Curiae 16. It is true enough that the Mayfield rule does not operate ex proprio vigore beyond the field of the FELA and (by incorporation) the Jones Act. But harmonization of general admiralty law with congressional enactments would have little meaning if we were to hold that, though forum non conveniens is a local matter for purposes of the Jones Act, it is nevertheless a matter of global concern requiring uniformity under general maritime law. That is especially so in light of our recognition in McAllister v. Magnolia Petroleum Co., 357 U. S., at 224-225, that, for practical reasons, a seaman will almost always combine in a single action claims for relief under the Jones Act and general maritime law. It would produce dissonance rather than harmony to hold that his claims for unseaworthiness and maintenance and cure, but not his Jones Act claim, could be dismissed for forum non conveniens.

The Jones Act’s treatment of venue lends further support to our conclusion. In Bainbridge v. Merchants & Miners Transp. Co., 287 U. S. 278, 280-281 (1932), we held that although 46 U. S. C. App. § 688(a) contains a venue provision, “venue [in Jones Act cases brought in state court] should . .. [be] determined by the trial court in accordance with the law of the state.” The implication of that holding is that venue under the Jones Act is a matter of judicial housekeeping that has been prescribed only for the federal courts. We noted earlier that forum non conveniens is a sort of supervening venue rule — and here again, what is true for venue under the Jones Act should ordinarily be true under maritime law in general. What we have prescribed for the federal courts with regard to forum non conveniens is not applicable to the States.

* * *

Amicus the Solicitor General has urged that we limit our holding, that forum non conveniens is not part of the uniform law of admiralty, to cases involving domestic entities. We think it unnecessary to do that. Since the parties to this suit are domestic entities it is quite impossible for our holding to be any broader.

The judgment of the Supreme Court of Louisiana is

Affirmed.

Justice Souter,

concurring.

I join in the opinion of the Court because I agree that in most cases the characterization of a state rule as substantive or procedural will be a sound surrogate for the conclusion that would follow from a more discursive pre-emption analysis. The distinction between substance and procedure will, however, sometimes be obscure. As to those close cases, how a given rule is characterized for purposes of determining whether federal maritime law pre-empts state law will turn on whether the state rule unduly interferes with the federal interest in maintaining the free flow of maritime commerce.

Justice Stevens,

concurring in part and concurring in the judgment.

It is common ground in the debate between the Court and Justice Kennedy that language from the majority opinion in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), correctly defines this Court’s power to prevent state tribunals from applying state laws in admiralty cases. See ante, at 447, post, at 463. In my view, Jensen is just as untrustworthy a guide in an admiralty case today as Lochner v. New York, 198 U. S. 45 (1905), would be in a casé under the Due Process Clause.

In the Jensen case, five Members of this Court concluded that the State of New York did not have the authority to award compensation to an injured longshoreman because application of the state remedy would interfere with the “proper harmony and uniformity” of admiralty law. 244 U. S., at 216. Justice Holmes’ dissenting opinion in Jensen, no less eloquent than his famous dissent in Lochner, scarcely needs embellishment. See 244 U. S., at 218-223. Nonetheless, like Lochner itself, Jensen has never been formally overruled. Indeed, in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920), the same majority that decided Jensen reached the truly remarkable conclusion that even Congress could not authorize the States to apply their workmen’s compensation laws in accidents subject to admiralty jurisdiction. See also Washington v. W C. Dawson & Co., 264 U. S. 219 (1924).

As Justice Brandéis stated in dissent in Washington, it takes an extraordinarily long and tenuous “process of deduction” to find in a constitutional grant of judicial jurisdiction a strong federal pre-emption doctrine unwaivable even by Congress. See id., at 230-231. Jensen and its progeny represent an unwarranted assertion of judicial authority to strike down or confine state legislation — even state legislation approved by Act of Congress — without any firm grounding in constitutional text or principle. In my view, we should not rely upon and thereby breathe life into this dubious line of cases.

Jensen asks courts to determine whether the state law would materially impair “characteristic features” of federal maritime law. 244 U. S., at 216. The unhelpful abstractness of those words leaves us without a reliable compass for navigating maritime pre-emption problems. As Justice Kennedy demonstrates, the forum non conveniens doctrine may be classified as a “characteristic feature” of federal admiralty jurisprudence even though it did not originate in, nor is it exclusive to, the law of admiralty. Compare ante, at 449-450, with post, at 463-467. There is, however, no respectable judicial authority for the proposition that every “characteristic feature” of federal maritime law must prevail over state law.

As Justice Kennedy observes, post, at 462-463, it is not easy to discern a substantial policy justification for Louisiana’s selective “open forum” statute, which exempts only federal maritime and Jones Act claims from the State’s general forum non conveniens policy. The statute arguably implicates concerns about disruptive local restrictions on maritime commerce that help explain why admiralty has been a federal subject. I am not persuaded, however, that the answer to those concerns lies in an extension of the patchwork maritime pre-emption doctrine. If this Court’s maritime pre-emption rulings can be arranged into any pattern, it is a most haphazard one. See generally Currie, Federalism and the Admiralty: “The Devil’s Own Mess,” 1960 S. Ct. Rev. 158. Such a capricious doctrine is unlikely to aid the free flow of commerce, and threatens to have the opposite effect.

In order to decide this case, it is enough to observe that maritime pre-emption doctrine allows state courts to use their own procedures in saving clause and Jones Act cases, see Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 222-223 (1986), and that forum non conveniens is, as the Court observes, best classified as a kind of secondary venue rule. Equally significant is the fact that Congress, which has unquestioned power to decree uniformity in maritime matters, has declined to set forth a federal forum convenience standard for admiralty cases. Ante, at 455-457. It also appears to have withheld from Jones Act defendants the right of removal generally applicable to claims based on federal law. See 28 U. S. C. § 1445(a); 46 U. S. C. App. § 688(a); In re Du-tile, 935 F. 2d 61, 62 (CA5 1991). Congress may “determine whether uniformity of regulation is required or diversity is permissible.” Washington, 264 U. S., at 234 (Brandéis, J., dissenting). When relevant federal legislation indicates that Congress has opted to permit state “diversity” in admiralty matters, a finding of federal pre-emption is inappropriate. Just as in cases involving non-maritime subjects, see, e. g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992), we should not lightly conclude that the federal law of the sea pre-empts a duly enacted state statute. Instead, we should focus on whether the state provision in question conflicts with some particular substantive rule of federal statutory or common law, or, perhaps, whether federal maritime rules, while not directly inconsistent, so pervade the subject as to preclude application of state law. We should jettison Jensen’s special maritime pre-emption doctrine and its abstract standards of “proper harmony” and “characteristic features.”

The Jensen decision and its progeny all rested upon the view that a strong pre-emption doctrine was necessary to vindicate the purpose of the Admiralty Clause to protect maritime commerce from the “unnecessary burdens and disadvantages incident to discordant legislation.” Knickerbocker Ice Co., 253 U. S., at 164. See also Washington, 264 U. S., at 228; Jensen, 244 U. S., at 217. Whether or not this view of the Clause is accurate as a historical matter, see Castro, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers and Pirates, 37 Am. J. Legal Hist. 117,154 (1993) (original purpose of Clause was to ensure federal jurisdiction over prize, criminal, and revenue cases; private maritime disputes were viewed as matters for state courts), protection of maritime commerce has been a central theme in our admiralty jurisprudence. While I do not propose that we abandon commerce as a guiding concern, we should recognize that, today, the federal interests in free trade and uniformity are amply protected by other means. Most importantly, we now recognize Congress’ broad authority under the Commerce Clause to supplant state law with uniform federal statutes. Moreover, state laws that affect maritime commerce, interstate and foreign, are subject to judicial scrutiny under the Commerce Clause. And to the extent that the mere assertion of state judicial power may threaten maritime commerce, the Due Process Clause provides an important measure of protection for out-of-state defendants, especially foreigners. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987); Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 (1984). Extension of the ill-advised doctrine of Jensen is not the appropriate remedy for unreasonable state v‘enue rules.

Accordingly, I concur in the judgment and in Part II-C of the opinion of the Court.

Justice Kennedy,

with whom Justice Thomas joins, dissenting.

The Court gives a careful and comprehensive history of the forum non conveniens doctrine but, in my respectful view, draws the wrong conclusions from this account and from our precedents. Today’s holding contradicts two just and well-accepted principles of admiralty law: uniformity and the elimination of unfair forum selection rules. When hearing cases governed by the federal admiralty and maritime law, the state courts, to be sure, have broad discretion to reject a forum non conveniens motion. They should not be permitted, however, to disregard the objection altogether. With due respect, I dissent.

Neither the Court nor respondent is well positioned in this case to contend that the State has some convincing reason to outlaw the forum non conveniens objection. For the fact is, though the Court seems unimpressed by the irony, the State of Louisiana commands its courts to entertain the forum non conveniens objection in all federal civil cases except for admiralty, the very context in which the rule is most prominent and makes most sense. Compare La. Code Civ. Proc. Ann., Art. 123(B) (West Supp. 1993) (“Except as provided in Paragraph C, upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated solely upon a federal statute and is based upon acts or omissions originating outside of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice, the court may dismiss the suit without prejudice . . .”) with Art. 123(C) (“The provisions of Paragraph B shall not apply to claims brought pursuant to 46 U. S. C. § 688 [the Jones Act] or federal maritime law”). Louisiana’s expressed interest is to reach out to keep maritime defendants, but not other types of defendants, within its borders, no matter how inconvenient the forum. This state interest is not the sort that should justify any disuniformity in our national admiralty law.

In all events, the Court misapprehends the question it should confront. The issue here is not whether forum non conveniens originated in admiralty law, or even whether it is unique to that subject, but instead whether it is an important feature of the uniformity and harmony to which admiralty aspires. See Southern Pacific Co. v. Jensen, 244 U. S. 205, 216 (1917). From the historical evidence, there seems little doubt to me that forum non conveniens is an essential and salutary feature of admiralty law. It gives shipowners and ship operators a way to avoid vexatious litigation on a distant and unfamiliar shore. By denying this defense in all maritime cases, Louisiana upsets international and interstate comity and obstructs maritime trade. And by sanctioning Louisiana’s law, a rule explicable only by some desire to disfavor maritime defendants, the Court condones the forum shopping and disuniformity that the admiralty jurisdiction is supposed to prevent.

In committing their ships to the general maritime trade, owners and operators run an unusual risk of being sued in venues with little or no connection to the subject matter of the suit. A wage dispute between crewman and captain or an accident on board the vessel may erupt into litigation when the ship docks in a faraway port. Taking jurisdiction in these cases, instead of allowing them to be resolved when the ship returns home, disrupts the schedule of the ship and may aggravate relations with the State from which it hales. See Bickel, The Doctrine of Forum Non Conveniens As Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L. Q. 12, 20-21 (1949) (“[Hjolding a ship and its crew in an American port, to which they may have come to do no more than refuel, may, in the eyes of the nation of the flag be deemed an undue interference with her commerce, and a violation of that ‘comity and delicacy’ which in the more courtly days of some of the earlier cases were considered normal among the nations” (footnote omitted)).

From the beginning, American admiralty courts have confronted this problem through the forum non conveniens doctrine. As. early as 1801, a Pennsylvania District Court declined to take jurisdiction over a wage dispute between a captain and crewman of a Danish ship. Willendson v. Forsoket, 29 F. Cas. 1283 (No. 17,682) (Pa.). “It has been my general rule,” explained the court, “not to take cognizance of disputes between the masters and crews of foreign ships.” Id., at 1284. “Reciprocal policy, and the justice due from one friendly nation to another, calls for such conduct in the courts of either country.” Ibid.

Dismissals for reasons of comity and forum non conveniens were commonplace in the 19th century. See, e. g., The Infanta, 13 F. Cas. 37, 39 (No. 7,030) (SDNY 1848) (dismissing claims for wages by two seamen from a British ship: “This court has repeatedly discountenanced actions by foreign seamen against foreign vessels not terminating their voyages at this port, as being calculated to embarrass commercial transactions and relations between this country and others in friendly relations with it”); The Carolina, 14 F. 424, 426 (La. 1876) (dismissing seaman’s claim that he was beaten by his crewmates while on board a British ship; “for courts to entertain this and similar suits during a voyage which the parties had agreed to make at intermediate points at which the vessel might touch, would impose delays which might seriously and uselessly embarrass the commerce of a friendly power”); The Montapedia, 14 F. 427 (ED La. 1882) (dismissing suit by Chinese plaintiffs against a British ship); The Walter D. Wallet, 66 F. 1011 (SD Ala. 1895) (dismissing suit by British seaman against master of British ship for costs of medical care while in a United States marine hospital). The practice had the imprimatur of this Court. See Mason v. Ship Blaireau, 2 Cranch 240, 264 (1804) (Marshall, C. J.) (recognizing forum non conveniens doctrine but not applying it in that case); The Belgenland, 114 U. S. 355, 362-369 (1885) (same); Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U. S. 515, 517 (1930) (affirming forum non conveniens dismissal of maritime dispute between British firms). By 1932, Justice Brandéis was able to cite “an unbroken line of decisions in the lower federal courts” exercising “an unqualified discretion to decline jurisdiction in suits in admiralty between foreigners.” Canada Malting Co. v. Paterson S. S., Ltd., 285 U. S. 413, 421-422, and nn. 2-4 (affirming forum non conveniens dismissal of maritime dispute between Canadian shipping companies).

Long-time foreign trading partners also recognize the forum non conveniens doctrine. The Court notes the doctrine’s roots in Scotland. See La Société du Gaz de Paris v. La Société Anonyme de Navigation “Les Armateurs Frangais,” [1926] Sess. Cas. 13 (H. L. 1925) (affirming dismissal of breach of contract claim brought by French manufacturer against French shipowner who had lost the manufacturer’s cargo at sea). English courts have followed Scotland, although most often they stay the case rather than dismiss it. See The Atlantic Star, [1974] App. Cas. 436 (H. L. 1973) (staying action between a Dutch barge owner and a Dutch shipowner whose vessels had collided in Belgian waters, pending the outcome of litigation in Antwerp); The Po, [1990] 1 Lloyd’s Rep. 418 (Q. B. Adm. 1990) (refusing to stay action between Italian shipowner and American shipowner-whose vessels had collided in Brazilian waters); The Lakhta, [1992] 2 Lloyd’s Rep. 269 (Q. B. Adm. 1992) (staying title dispute between Latvian plaintiffs and Russian defendant, so that plaintiffs could sue in Russian court). The Canadian Supreme Court has followed England and Scotland. See Antares Shipping Corp. v. Delmar Shipping Ltd. (The Capricorn), [1977] 1 Lloyd’s Rep. 180, 185 (1976) (citing Atlantic Star and Société du Gaz).

From all of the above it should be clear that forum non conveniens is an established feature of the general maritime law. To the main point, it serves objectives that go to the vital center of the admiralty pre-emption doctrine. Comity with other nations and among the States was a primary aim of the Constitution. At the time of the framing, it was essential that our prospective foreign trading partners know that the United States would uphold its treaties, respect the general maritime law, and refrain from erecting barriers to commerce. The individual States needed similar assurances from each other. See The Federalist No. 22, pp. 143-145 (C. Rossiter ed. 1961) (Hamilton); Madison, Vices of the Political System of the United States, 2 Writings of James Madison 362-363 (G. Hunt ed. 1901). Federal admiralty and maritime jurisdiction was the solution. See 2 J. Story, Commentaries on the Constitution of the United States § 1672 (5th ed. 1833); The Federalist No. 80, supra, at 478 (Hamilton). And so, when the States were allowed to provide common-law remedies for in personam maritime disputes through the saving to suitors clause, it did not follow that they were at liberty to set aside the fundamental features of admiralty law. “The confusion and difficulty, if vessels were compelled to comply with the local statutes at every port, are not* difficult to see____[T]he Union was formed with the very definite design of freeing maritime commerce from intolerable restrictions incident to such control.” Washington v. W C. Dawson & Co., 264 U. S. 219, 228 (1924). Accord, The Lottawanna, 21 Wall. 558, 575 (1875); Jensen, 244 U. S., at 215-217.

Louisiana’s open forum policy obstructs maritime commerce and runs the additional risk of impairing relations among the States and with our foreign trading partners. These realities cannot be obscured by characterizing the defense as procedural. See ante, at 452-454; but see Bickel, 35 Cornell L. Q., at 17 (“[T]he forum non conveniens problem ... is inescapably connected with the substantive rights of the parties in any given type of suit, rather than . . . ‘merely’ an ‘administrative’ problem”). The reverse-Erie metaphor, while perhaps of use in other contexts, see Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 222-223 (1986), is not a sure guide for determining when a specific state law has displaced an essential feature of the general maritime law. See Exxon Corp. v. Chick Kam Choo, 817 F. 2d 307, 319 (CA5 1987) (“drawing conclusions from metaphors is dangerous”). Procedural or substantive, the forum non conveniens defense promotes comity and trade. The States are not free to undermine these goals.

It is true that in Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1 (1950), we held the state courts free to ignore forum non conveniens in Federal Employers’ Liability Act (FELA) cases. But we did not consider the maritime context. Unlike FELA, a domestic statute, controlling domestic markets, the admiralty law is international in its concern. A state court adjudicating a FELA dispute interposes no obstacle to our foreign relations. And while the Jones Act in turn makes FELA available to maritime claimants, that Act says nothing about forum non conveniens. See 46U.S. C. App. §688.

In any event, the Court’s ruling extends well beyond the Jones Act; it covers the whole spectrum of maritime litigation. Courts have recognized the forum non conveniens defense in a broad range of admiralty disputes: breach of marine insurance contract, Calavo Growers of Cal. v. Generali Belgium, 632 F. 2d 963 (CA2 1980); collision, Ocean Shelf Trading, Inc. v. Flota Mercante Grancolumbiana S. A., 638 F. Supp. 249 (SDNY 1986); products liability, Matson Navigation Co. v. Stal-Laval Turbin AB, 609 F. Supp. 579 (ND Cal. 1985); cargo loss, The Red Sea Ins. Co. v. S. S. Lucia Del Mar, 1983 A. M. C. 1630 (SDNY 1982), aff’d, 1983 A. M. C. 1631 (CA2 1983); and breach of contract for carriage, Galban Lobo Trading Co. v. Canadian Leader Ltd., 1963 A. M. C. 988 (SDNY 1958), to name a few. See Brief for Maritime Law Association of the United States as Amicus Curiae 12. In all of these cases, federal district courts will now hear forum non conveniens motions in the shadow of state courts that refuse to consider it. Knowing that upon dismissal a maritime plaintiff may turn around and sue in one of these state courts, see Chick Kam Choo v. Exxon Corp., 486 U. S. 140 (1988), a federal court is now in a most difficult position. May it overrule a forum non conveniens motion it otherwise would have granted, because the state forum is open? See Ikospentakis v. Thalassic S. S. Agency, 915 F. 2d 176, 180 (CA5 1990) (reversing the grant of plaintiff’s voluntary dismissal motion, because the forum non conveniens defense was not available to defendants in the Louisiana court where plaintiff had also sued; refusing “to insist that these foreign appellants become guinea pigs in an effort to overturn Louisiana’s erroneous rule”). Since the Court now makes forum non conveniens something of a derelict in maritime law, perhaps it is unconcerned that federal courts may now be required to alter their own forum non conveniens determinations to accommodate the policy of the State in which they sit. Under federal maritime principles, I should have thought that the required accommodation was the other way around. The Supreme Court of Texas so understood the force of admiralty; it has ruled that its state courts must entertain a forum non conveniens objection despite a Texas statute mandating an open forum. Exxon Corp. v. Chick Kam Choo, 1994 A. M. C. 609.

The Court does seem to leave open the possibility for a different result if those who raise the forum non conveniens objection are of foreign nationality. The Court is entitled, I suppose, to so confine its holding, but no part in its reasoning gives hope for a different result in a case involving foreign parties. The Court’s substance-procedure distinction takes no account of the identity of the litigants, nor does the statement that forum non conveniens remains “nothing more or less than a supervening venue provision,” ante, at 453. The Court ought to face up to the consequences of its rule in this regard.

Though it may be doubtful that a forum non conveniens objection will succeed when all parties are domestic, that conclusion should ensue from a reasoned consideration of all the relevant circumstances, including comity and trade concerns. See Anderson v. Great Lakes Dredge & Dock Co., 411 Mich. 619, 309 N. W. 2d 539 (1981) (dismissing Jones Act claim brought by Florida seaman against Delaware dredge owner for injuries suffered in Florida); Vargas v. A. H. Bull S. S. Co., 44 N. J. Super. 536, 131 A. 2d 39 (1957) (dismissing Jones Act claim brought by Puerto Rican residents against New Jersey shipper for accidents that occurred in Puerto Rico). An Alaskan shipper may find a lawsuit in Louisiana more burdensome than the same suit brought in Canada. It is a virtue, not a vice, that the doctrine preserves discretion for courts to find forum non conveniens in unusual but worthy cases. At stake here is whether the defense will be available at all, not whether it has merit in this particular case. Petitioner may not have prevailed on its forum non conveniens motion, but it should at least have a principled ruling on its objection.

For these reasons, I would reverse the judgment.

       Justice Stevens asserts that we should not test the Louisiana law against the standards of Jensen, a case which, though never explicitly overruled, is in his view as discredited as Lochner v. New York, 198 U. S. 45 (1905). See post, at 458-459. Petitioner’s pre-emption argument was primarily based upon the principles established in Jensen, as repeated in the later cases (which Justice Stevens also disparages, see post, at 459) of Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920), and Washington v. W. C. Dawson & Co., 264 U. S. 219 (1924), see Brief for Petitioner 12-13. Respondent did not assert that those principles had been repudiated; nor did the Solicitor General, who, in support of respondent, discussed Jensen at length, see Brief for United States as Amicus Curiae 5, 11-13, and n. 12. Since we ultimately find that the Louisiana law meets the standards of Jensen anyway, we think it inappropriate to overrule Jensen in dictum, and without argument or even invitation.

        Gilbert held that it was permissible to dismiss an action brought in a District Court in New York by a Virginia plaintiff against a defendant doing business in Virginia for a fire that occurred in Virginia. Such a dismissal would be improper today because of the federal venue transfer statute, 28 U. S. C. § 1404(a): “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” By this statute, “[district courts were given more discretion to transfer . . . than they had to dismiss on grounds of forum non conveniens.” Piper Aircraft Co. v. Reyno, 454 U. S. 235, 253 (1981). As a consequence, the federal doctrine oí forum non conveniens has continuing application only in cases where the alternative forum is abroad.

       Whatever might be the unifying theme of this aspect of our admiralty jurisprudence, it assuredly is not what the dissent takes it to be, namely, the principle that the States may not impair maritime commerce, see post, at 463-464, 467. In Fireman’s Fund, for example, we did not inquire whether the breach-of-warranty rule Oklahoma imposed would help or harm maritime commerce, but simply whether the State had power to regulate the matter. The no-harm-to-commerce theme that the dissent plays is of course familiar to the ear — not from our admiralty repertoire, however, but from our “negative Commerce Clause” jurisprudence, see
        Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 891 (1988). No Commerce Clause challenge is presented in this case.
      Similarly misdirected is the dissent’s complaint that Article 123 of the Louisiana Code of Civil Procedure unfairly discriminates against maritime defendants because it permits application of forum vxm conveniens in non-maritime eases, see post, at 462-463. The only issue raised and argued in this appeal, and the only issue we decide, is whether state courts must apply the federal rule of forum non conveniens in maritime actions. Whether they may accord discriminatory treatment to maritime actions by applying a state forum non conveniens rule in all except maritime cases is a question not remotely before us.

       It is because forum non conveniens is not a substantive right of the parties, but a procedural rule of the forum, that the dissent is wrong to say our decision will cause federal-court forum non conveniens determinations in admiralty cases to be driven, henceforth, by state law — i. e., that the federal court in a State with the Louisiana rule may as well accept jurisdiction, since otherwise the state court will. See post, at 468-469. That is no more true oí forum non conveniens than it is of venue. Under both doctrines, the object of the dimissal is achieved whether or not the party can then repair to a state court in the same location. Federal courts will continue to invoke forum non conveniens to decline jurisdiction in appropriate cases, whether or not the State in which they sit chooses to burden its judiciary with litigation better handled elsewhere.

       The central theme of Holmes’ dissent was that nothing in the Constitution or in the Judiciary Act’s grant of jurisdiction over admiralty cases to the district courts prevented New York from supplementing the “very limited body of customs and ordinances of the sea” with its statutory workers’ compensation remedy. Southern Pacific Co. v. Jensen, 244 U. S. 205, 220 (1917). Holmes’ Jensen dissent was the source of his famous observations that “judges do and must legislate, but they can do so only interstitially,” id., at 221, and that “[t]he common law is not a brooding omnipresenee in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified,” id., at 222.

       Even if we were to impose a forum non conveniens rule on Louisiana, the resulting standard would be altogether different from the federal version because Louisiana has chosen to bear the various costs of entertaining far-flung claims. See Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508-509 (1947) (forum’s own interests must be weighed in forum non conveniens balancing test). Instead, forum non conveniens would operate simply as an admonition to take heed of the inconvenience to the foreign defendant.

       Petitioner asserted such a defense in the trial court, but has not asserted a personal jurisdiction challenge before this Court.


author: Justice Thomas

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. MEYER
    No. 92-741.
    Argued October 4, 1993
    Decided February 23, 1994

      Thomas, J., delivered the opinion for a unanimous Court.

      Deputy Solicitor General Bender argued the cause for petitioner. On the briefs were Solicitor General Days, Act

      ing Solicitor General Bryson, Acting Assistant Attorney General Schiffer, James A. Feldman, Barbara L. Herwig, Jacob M. Lewis, Alfred J. T Byrne, Jack D. ■ Smith, and Jerome A. Madden.

      Gennaro A. Filice III argued the cause and filed a brief for respondent.

        David W. Graves and Gary M. Laturno filed a brief for the National Employment Lawyers Association as amicus curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we implied a cause of action for damages against federal agents who allegedly violated the Constitution. Today we are asked to imply a similar cause of action directly against an agency of the Federal Government. Because the logic of Bivens itself does not support such an extension, we decline to take this step.

I

On April 13, 1982, the California Savings and Loan Commissioner seized Fidelity Savings and Loan Association (Fidelity), a California-chartered thrift institution, and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) to serve as Fidelity’s receiver under state law. That same day, the Federal Home Loan Bank Board appointed FSLIC to serve as Fidelity’s receiver under federal law. In its capacity as receiver, FSLIC had broad authority to “take such action as may be necessary to put [the thrift] in a sound solvent condition.” 48 Stat. 1259, as amended, 12 U. S. C. § 1729(b)(l)(A)(ii) (repealed 1989). Pursuant to its general policy of terminating the employment of a failed thrift’s senior management, FSLIC, through its special representative Robert L. Pattullo, terminated respondent John H. Meyer, a senior Fidelity officer.

Approximately one year later, Meyer filed this lawsuit against a number of defendants, including FSLIC and Pattullo, in the United States District Court for the Northern District of California. At the time of trial, Meyer’s sole claim against FSLIC and Pattullo was that his summary discharge deprived him of a property right (his right to continued employment under California law) without due process of law in violation of the Fifth Amendment. In making this claim, Meyer relied upon Bivens v. Six Unknown Fed. Narcotics Agents, supra, which implied a cause of action for damages against federal agents who allegedly violated the Fourth Amendment. The jury returned a $130,000 verdict against FSLIC, but found in favor of Pattullo on qualified immunity grounds.

Petitioner Federal Deposit Insurance Corporation (FDIC), FSLIC’s statutory successor, appealed to the Court of Appeals for the Ninth Circuit, which affirmed. 944 F. 2d 562 (1991). First, the Court of Appeals determined that the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. §§ 1346(b), 2671-2680, did not provide Meyer’s exclusive remedy. 944 F. 2d, at 568-572. Although the FTCA remedy is “exclusive” for all “claims which are cognizable under section 1346(b),” 28 U. S. C. § 2679(a), the Court of Appeals decided that Meyer’s claim was not cognizable under § 1346(b). 944 F. 2d, at 567, 572. The court then concluded that the “sue- and-be-sued” clause contained in FSLIC’s organic statute, 12 U. S. C. § 1725(c)(4) (repealed 1989), constituted a waiver of sovereign immunity for Meyer’s claim and entitled him to maintain an action against the agency. 944 F. 2d, at 566, 572. Finally, on the merits, the court affirmed the jury’s conclusion that Meyer had been deprived of due process when he was summarily discharged without notice and a hearing. Id., at 572-575. We granted certiorari to consider the validity of the damages award against FSLIC. 507 U. S. 983 (1993).

II

Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Loeffler v. Frank, 486 U. S. 549, 554 (1988); Federal Housing Administration v. Burr, 309 U. S. 242, 244 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the “terms of [the United States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U. S. 584, 586 (1941). See also United States v. Mitchell, 463 U. S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction”). Therefore, we must first decide whether FSLIC’s immunity has been waived.

A

When Congress created FSLIC in 1934, it empowered the agency “[t]o sue and be sued, complain and defend, in any court of competent jurisdiction.” 12 U. S. C. § 1725(c)(4) (repealed 1989). By permitting FSLIC to sue and be sued, Congress effected a “broad” waiver of FSLIC’s immunity from suit. United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992). In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees. 28 U. S. C. § 1346(b). In order to “place torts of ‘suable’ agencies . . . upon precisely the same footing as torts of ‘nonsuable’ agencies,” Loeffler, supra, at 562 (internal quotation marks omitted), Congress, through the FTCA, limited the scope of sue- and-be-sued waivers such as that contained in FSLIC’s organic statute. The FTCA limitation provides:

“The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such eases shall be exclusive.” 28 U. S. C. § 2679(a).

Thus, if a suit is “cognizable” under § 1346(b) of the FTCA, the FTCA remedy is “exclusive” and the federal agency cannot be sued “in its own name,” despite the existence of a sue-and-be-sued clause.

The first question, then, is whether Meyer’s claim is “cognizable” under § 1346(b). The term “cognizable” is not defined in the Act. In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning. Smith v. United States, 508 U. S. 223, 228 (1993). Cognizable ordinarily means “[c]apable of being tried or examined before a designated tribunal; within [the] jurisdiction of [a] court or power given to [a] court to adjudicate [a] controversy.” Black’s Law Dictionary 259 (6th ed. 1990). Under this definition, the inquiry focuses on the jurisdictional grant provided by § 1346(b).

Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and “rendered]” itself liable. Richards v. United States, 369 U. S. 1, 6 (1962). This category includes claims that are:

“[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b).

A claim comes within this jurisdictional grant — and thus is “cognizable” under § 1346(b) — if it is actionable under § 1346(b). And a claim is actionable under § 1346(b) if it alleges the six elements outlined above. See Loeffler, supra, at 562 (§ 2679(a) limits the scope of sue-and-be-sued waivers “in the context of suits for which [Congress] provided a cause of action under the FTCA” (emphasis added)).

Applying these principles to this case, we conclude that Meyer’s constitutional tort claim is not “cognizable” under § 1346(b) because it is not actionable under § 1346(b) — that is, § 1346(b) does not provide a cause of action for such a claim. As noted above, to be actionable under § 1346(b), a claim must allege, inter alia, that the United States “would be liable to the claimant” as “a private person” “in accordance with the law of the place where the act or omission occurred.” A constitutional tort claim such as Meyer’s could not contain such an allegation. Indeed, we have consistently held that § 1346(b)’s reference to the “law of the place” means law of the State — the source of substantive liability under the FTCA. See, e. g., Miree v. DeKalb County, 433 U. S. 25, 29, n. 4 (1977); United States v. Muniz, 374 U. S. 150, 153 (1963); Richards, supra, at 6-7, 11; Rayonier Inc. v. United States, 352 U. S. 315, 318 (1957). By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right. To use the terminology of Richards, the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims. Thus, because Meyer’s constitutional tort claim is not cognizable under § 1346(b), the FTCA does not constitute his “exclusive” remedy. His claim was therefore properly brought against FSLIC “in its own name.” 28 U. S. C. § 2679(a).

FDIC argues that by exposing a sue-and-be-sued agency to constitutional tort claims, our interpretation of “cognizability” runs afoul of Congress’ understanding that § 2679(a) would place the torts of “suable” and “nonsuable” agencies on the same footing. See Loeffler, 486 U. S., at 562. FDIC would deem all claims “sounding in tort” — including constitutional torts — “cognizable” under § 1346(b). Under FDIC’s reading of the statute, only the portion of § 1346(b) that describes a “tort” — i. e., “claims against the United States, for money damages,... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government” — would govern cognizability. The remaining portion of § 1346(b) would simply describe a “limitation” on the waiver of sovereign immunity.

We reject this reading of the statute. As we have already noted, § 1346(b) describes the scope of jurisdiction by reference to claims for which the United States has waived its immunity and rendered itself liable. FDIC seeks to uncouple the scope of jurisdiction under § 1346(b) from the scope of the waiver of sovereign immunity under § 1346(b). Under its interpretation, the jurisdictional grant would be broad (covering all claims sounding in tort), but the waiver of sovereign immunity would be narrow (covering only those claims for which a private person would be held liable under state law). There simply is no basis in the statutory language for the parsing FDIC suggests. Section 2679(a)’s reference to claims “cognizable” under § 1346(b) means cognizable under the whole of § 1346(b), not simply a portion of it.

B

Because Meyer’s claim is not cognizable under § 1346(b), we must determine whether FSLIC’s sue-and-be-sued clause waives sovereign, immunity for the claim. FDIC argues that the scope of the sue-and-be-sued waiver should be limited to cases in which FSLIC would be subjected to liability as a private entity. A constitutional tort claim such as Meyer’s, FDIC argues, would fall outside the sue-and-be-sued waiver because the Constitution generally does not restrict the conduct of private entities. In essence, FDIC asks us to engraft a portion of the sixth element of § 1346(b) — liability “under circumstances where the United States, if a private person, would be liable to the claimant” — onto the sue-and-be-sued clause.

On its face, the sue-and-be-sued clause contains no such limitation. To the contrary, its terms are simple and broad: FSLIC “shall have power . . . [t]o sue and be sued, complain and defend, in any court of competent jurisdiction in the United States.” 12 U. S. C. § 1725(c)(4) (repealed 1989). In the past, we have recognized that such sue-and-be-sued waivers are to be “liberally construed,” Federal Housing Administration v. Burr, 309 U. S., at 245, notwithstanding the general rule that waivers of sovereign immunity are to be read narrowly in favor of the sovereign. See United States v. Nordic Village, Inc., 503 U. S., at 34. Burr makes it clear that sue-and-be-sued clauses cannot be limited by implication unless there has been a

“clea[r] showing] that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense.” 309 U. S., at 245 (footnote omitted).

See also Loeffler, 486 U. S., at 561; Franchise Tax Bd. of Cal. v. Postal Service, 467 U. S. 512, 517-518 (1984). Absent such a showing, agencies “authorized to ‘sue and be sued’ are presumed to have fully waived immunity.” International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 86, n. 8 (1991) (describing the holding in Burr).

FDIC does not attempt to make the “clear” showing of congressional purpose necessary to overcome the presumption that immunity has been waived. Instead, it bases its argument solely on language in our cases suggesting that federal agencies should bear the burdens of suit borne by private entities. Typical of these cases is Burr, which stated that “when Congress launche[s] a governmental agency into the commercial world and endow[s] it with authority to ‘sue or be sued,’ that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.” 309 U. S., at 245 (emphasis added). See also Franchise Tax Bd., supra, at 520 (“[U]nder Burr not only must we liberally construe the sue-and-be-sued clause, but also we must presume that the [Postal] Service’s liability is the same as that of any other business”) (emphasis added); Loeffler, supra, at 557 (through a sue-and-be-sued clause, “Congress waived [the Postal Service’s] immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a norma! incident of suit” (emphasis added)).

When read in context, however, it is clear that Burr, Franchise Tax Board, and Loeffler do not support the limitation FDIC proposes. In these cases, the claimants sought to subject the agencies to a particular suit or incident of suit to which private businesses are amenable as a matter of course. In Burr, for example, the claimant, who had obtained a judgment against an employee of the Federal Housing Administration (FHA), served the FHA with a writ to garnish the employee’s wages. 309 U. S., at 243, 248, n. 11. Similarly, in Franchise Tax Board, the claimant directed the United States Postal Service to withhold amounts of delinquent state income taxes from the wages of four Postal Service employees. 467 U. S., at 513. And in Loeffier, the claimant, who was discharged from his employment as a rural letter carrier, sought prejudgment interest as an incident of his successful suit against the Postal Service under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. 486 U. S., at 551-552.

Because the claimant in each of these cases was seeking to hold the agency liable just like “any other business,” Franchise Tax Board, supra, at 520, it was only natural for the Court to look to the liability of private businesses for guidance. It stood to reason that the agency could not escape the liability a private enterprise would face in similar circumstances. Here, by contrast, Meyer does not seek to hold FSLIC liable just like any other business. Indeed, he seeks to impose on FSLIC a form of tort liability — tort liability arising under the Constitution — that generally does not apply to private entities. Burr, Franchise Tax Board, and Loeffier simply do not speak to the issue of sovereign immunity in the context of such a constitutional tort claim.

Moreover, nothing in these decisions suggests that the liability of a private enterprise should serve as the outer boundary of the sue-and-be-sued waiver. Rather, those cases “merely involve[d] a determination of whether or not [the particular suit or incident of suit] [came] within the scope of” the sue-and-be-sued waiver. Burr, supra, at 244. When we determined that the particular suit or incident of suit fell within the sue-and-be-sued waiver, we looked to the liability of a private enterprise as a floor below which the agency’s liability could not fall. In the present case, by contrast, FDIC argues that a sue-and-be-sued agency’s liability should never be greater than that of a private entity; that is, it attempts to use the liability of a private entity as a ceiling. Again, nothing in Burr, Franchise Tax Board, or Loeffler supports such a result.

Finally, we hesitate to engraft language from § 1346(b) onto the sue-and-be-sued clause when Congress, in § 2679(a), expressly set out how the former provision would limit the latter. As provided in § 2679(a), § 1346(b) limits sue-and-be-sued waivers for claims that are “cognizable” under § 1346(b). Thus, § 2679(a) contemplates that a sue-and-be-sued waiver could encompass claims not cognizable under § 1346(b) and render an agency subject to suit unconstrained by the express limitations of the FTC A. FDIC’s construction — taken to its logical conclusion — would not permit this result because it would render coextensive the scope of the waivers contained in § 1346(b) and sue-and-be-sued clauses generally. Had Congress wished to achieve that outcome, it surely would not have employed the language it did in § 2679(a). See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there”). Because “[n]o showing has been made to overcome [the] presumption” that the sue-and-be-sued clause “fully waived” FSLIC’s immunity in this instance, Franchise Tax Board, supra, at 520; International Primate Protection League, 500 U. S., at 86, n. 8, we hold that FSLIC’s sue-and-be-sued clause waives the agency’s sovereign immunity for Meyer’s constitutional tort claim.

Ill

Although we have determined that Meyer’s claim falls within the sue-and-be-sued waiver, our inquiry does not end at this point. Here we part ways with the Ninth Circuit, which determined that Meyer had a cause of action for damages against FSLIC because there had been a waiver of sovereign immunity. 944 F. 2d, at 572. The Ninth Circuit’s reasoning conflates two “analytically distinct” inquiries. United States v. Mitchell, 463 U. S., at 218. The first inquiry is whether there has been a waiver of sovereign immunity. If there has been such a waiver, as in this case, the second inquiry comes into play — that is, whether the source of substantive law upon which the claimant relies provides an avenue for relief. Id., at 216-217. It is to this second inquiry that we now turn.

Meyer bases his due process claim on our decision in Bivens, which held that an individual injured by a federal agent’s alleged violation of the Fourth Amendment may bring an action for damages against the agent. 403 U. S., at 397. In our most recent decisions, we have “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, 487 U. S. 412, 421 (1988). In this case, Meyer seeks a significant extension of Bivens: He asks us to expand the category of defendants against whom Bivens-tyige actions may be brought to include not only federal agents, but federal agencies as well.

We know of no Court of Appeals decision, other than the Ninth Circuit’s below, that has implied a Bivens-type cause of action directly against a federal agency. Meyer recognizes the absence of authority supporting his position, but argues that the “logic” of Bivens would support such a remedy. We disagree. In Bivens, the petitioner sued the agents of the Federal Bureau of Narcotics who allegedly violated his rights, not the Bureau itself. 403 U. S., at 389-390. Here, Meyer brought precisely the claim that the logic of Bivens supports — a Bivens claim for damages against Pattullo, the FSLIC employee who terminated him.

An additional problem with Meyer’s “logic” argument is the fact that we implied a cause of action against federal officials in Bivens in part because a direct action against the Government was not available. Id., at 410 (Harlan, J., concurring in judgment). In essence, Meyer asks us to imply a damages action based on a decision that presumed the absence of that very action.

Meyer’s real complaint is that Pattullo, like many Bivens defendants, invoked the protection of qualified immunity. But Bivens clearly contemplated that official immunity would be raised. Id., at 397 (noting that “the District Court [had] ruled that... respondents were immune from liability by virtue of their official position”). More importantly, Meyer’s proposed “solution” — essentially the circumvention of qualified immunity — would mean the evisceration of the Bivens remedy, rather than its extension. It must be remembered that the purpose of Bivens is to deter the officer. See Carlson v. Green, 446 U. S. 14, 21 (1980) (“Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy against the United States”). If we were to imply a damages action directly against federal agencies, thereby permitting claimants to bypass qualified immunity, there would be no reason for aggrieved parties to bring damages actions against individual officers. Under Meyer’s regime, the deterrent effects of the Bivens remedy would be lost.

Finally, a damages remedy against federal agencies would be inappropriate even if such a remedy were consistent with Bivens. Here, unlike in Bivens, there are “special factors counselling hesitation” in the creation of a damages remedy. Bivens, 403 U. S., at 396. If we were to recognize a direct action for damages against federal agencies, we would be creating a potentially enormous financial burden for the Federal Government. Meyer disputes this reasoning and argues that the Federal Government already expends significant resources indemnifying its employees who are sued under Bivens. Meyer’s argument implicitly suggests that the funds used for indemnification could be shifted to cover the direct liability of federal agencies. That may or may not be true, but decisions involving “ ‘federal fiscal policy’ ” are not ours to make. Ibid, (quoting United States v. Standard Oil Co. of Cal., 332 U. S. 301, 311 (1947)). We leave it to Congress to weigh the implications of such a significant expansion of Government liability.

IV

An extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself. We therefore hold that Meyer had no Bivens cause of action for damages against FSLIC. Accordingly, the judgment below is reversed.

So ordered.

       See 12 U. S. C. § 1821(d) (1988 ed., Supp. IV). After FSLIC was abolished by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183, FDIC was substituted for FSLIC in this suit.

       Meyer filed a cross-appeal challenging the jury’s finding that Pattullo was protected by qualified immunity. The Ninth Circuit affirmed this finding. 944 F. 2d, at 575-577. We declined to review this aspect of the case. Meyer v. Pattullo, 507 U. S. 984 (1993).

       The statute governing FDIC contains a nearly identical sue-and-be-sued clause. See 12 U. S. C. § 1819(a) Fourth (1988 ed., Supp. IV) (FDIC “shall have power . . . [t]o sue and be sued, and complain and defend, in any court of law or equity, State or Federal”).

       Section 1.346(b) provides:
      “[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages,... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

       Because we were not asked to define “eognizability” in Loeffler, our language was a bit imprecise. The question is not whether a claim is cognizable under the FTCA generally, as Loeffler suggests, but rather whether it is “cognizable under section 1846(b).” 28 U. S. C. § 2679(a) (emphasis added).

       FDIC relies upon United States v. Smith, 499 U. S. 160 (1991), for its interpretation of the term “cognizable.” In Smith, the “foreign country” exception, 28 U. S. C. § 2680(k), barred plaintiffs’ recovery against the Federal Government for injuries allegedly caused by the negligence of a Government employee working abroad. 499 U. S., at 165. We held that the FTCA provided plaintiffs’ “exclusive remedy,” even though the FTCA itself did not provide a means of recovery. Id., at 166. Smith did not involve § 2679(a), the provision at issue in this case, but rather § 2679(b)(1), which provides that the FTCA remedy is “exclusive of any other civil action or proceeding for money damages . . . against the employee whose, act or omission gave rise to the claim.” The Court-had no occasion in Smith to address the meaning of the term “cognizable” because § 2679(b)(1) does not contain the term. We therefore find Smith unhelpful in this regard.

       Nothing in our decision in Hubsch v. United States, 338 U. S. 440 (1949) (per curiam), is to the contrary. In Hubsch, the parties submitted to this Court for approval a settlement agreement under 28 U. S. C. § 2677 (1946 ed., Supp. IV), which at the time provided that the Attorney General, “with the approval of the court,” could “settle any claim cognizable under section 1346(b).” 338 U. S., at 440 (emphasis added). We construed § 2677 “as imposing on the District Court the authority and responsibility for passing on proposed compromises,” notwithstanding the fact that it had found that the claimant failed to prove the Government employee acted within the scope of his authority (the fifth element of § 1346(b) mentioned above). Id., at 441. See also Hubsch v. United States, 174 F. 2d 7 (CA5 1949). Our holding in the case recognized that a claim does not lose its cognizability simply because there has been a failure of proof on an element of the claim. In this case there has been no failure of proof; rather, Meyer’s claim does not fall within the terms of § 1346(b) in the first instance.

       In its brief discussion of the sue-and-be-sued clause, FDIC does not mention — let alone attempt to overcome — the presumption of waiver. See Brief for Petitioner 12-13.

       For example, a Bivens action alleging a violation of the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in others. Compare Davis v. Passman, 442 U. S. 228, 248-249 (1979) (implying Bivens action under the equal protection component of the Due Process Clause in the context of alleged gender discrimination in employment), with Schweiker v. Chilicky, 487 U. S., at 429 (refusing to imply Bivens action for alleged due process violations in the denial of Social Security disability benefits on the ground that a damages remedy was not included in the elaborate remedial scheme devised by Congress).

       Although not critical to our analysis, we note that in addition to the Bivens claim against Pattullo, Meyer initially brought a contractual claim against FSLIC, which he later dropped. Meyer also could have filed a claim with FSLIC as receiver for the value of any contractual rights he believed were violated. See 12 U. S. C. § 1729(d) (repealed 1989); 12 CFR §§569a.6, 569a.7 (1982); Coit Independence Joint Venture v. FSLIC, 489 U. S. 561, 580-581 (1989).

       In this regard, we note that Congress has considered several proposals that would have created a Bivens-type remedy directly against the Federal Government. See, e. g., H. R. 440, 99th Cong., 1st Sess. (1985); H. R. 595,98th Cong., 1st Sess. (1983); S. 1775,97th Cong., 1st Sess. (1981); H. R. 2659, 96th Cong., 1st Sess. (1979).

       Because we find that Meyer had no Bivens action against FSLIC, we do not reach the merits of his due process claim.