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It has held the use of an inappropriate forum in one The principle of forum non conveniens is simply that a
case an unconstitutional burden on interstate court may resist imposition upon its jurisdiction even
commerce. On substantially forum non when jurisdiction is authorized by the letter of a
conveniens grounds, we have required federal courts general venue statute. These statutes are drawn with a
to relinquish decision of cases within their jurisdiction necessary generality, and usually give a plaintiff a
where the court would have to participate in the choice of courts, so that he may be quite sure of some
administrative policy of a state. And, most recently, place in which to pursue his remedy. But the open door
we decided Williams v. Green Bay & Western R. Co., in may admit those who seek not simply justice, but
which the Court, without questioning the validity of the perhaps justice blended with some harassment. A
doctrine, held it had been applied in that case without plaintiff sometimes is under temptation to resort to a
justification. strategy of forcing the trial at a most inconvenient
place for an adversary, even at some inconvenience to
himself.
It is true that, in cases under the Federal Employers'
Liability Act, we have held that plaintiff's choice of a
forum cannot be defeated on the basis of forum non Many of the states have met misuse of venue by
conveniens. But this was because the special venue investing courts with a discretion to change the place
act under which those cases are brought was believed of trial on various grounds, such as the convenience of
to require it. Those decisions do not purport to modify witnesses and the ends of justice. The federal law
the doctrine as to other cases governed by the general contains no such express criteria to guide the district
venue statutes. court in exercising its power. But the problem is a very
old one affecting the administration of the courts as
well as the rights of litigants, and, both in England and
But the court below says that in this country, the common law worked out techniques
and criteria for dealing with it.
"The Kepner case . . . warned against refusal of
jurisdiction in a particular case controlled by Wisely, it has not been attempted to catalogue the
congressional act; here, the only difference is that circumstances which will justify or require either grant
congressional act, plus judicial interpretation (under or denial of remedy. The doctrine leaves much to the
the Neirbo case), spells out the result." discretion of the court to which plaintiff resorts, and
experience has not shown a judicial tendency to
The Federal Employers' Liability Act, however, which renounce one's own jurisdiction so strong as to result in
controlled decision in the Kepner case, specifically many abuses.
provides where venue may be had in any suit on a
cause of action arising under that statute. What the If the combination and weight of factors requisite to
court below refers to as "congressional act, plus given results are difficult to forecast or state, those to
judicial interpretation" is the general statute of venue be considered are not difficult to name. An interest to
in diversity suits, plus our decision that it gives the be considered, and the one likely to be most pressed,
defendant "a personal privilege respecting the venue, is the private interest of the litigant. Important
or place of suit, which he may assert, or may waive at considerations are the relative ease of access to
his election," The Federal Employers' Liability Act, as sources of proof; availability of compulsory process for
interpreted by Kepner, increases the number of places attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of the imagination of a local jury which is surely
premises, if view would be appropriate to the action, unaccustomed to dealing with amounts of such a
and all other practical problems that make trial of a nature. Furthermore, removed from Lynchburg, the
case easy, expeditious, and inexpensive. There may respondent will have an opportunity to try this case
also be questions as to the enforceability of a judgment free from local influences and preconceived notions
if one is obtained. The court will weigh relative which make it difficult to procure a jury which has no
advantages and obstacles to fair trial. It is often said previous knowledge of any of the facts herein."
that the plaintiff may not, by choice of an inconvenient
forum, "vex," "harass," or "oppress" the defendant by This unproven premise that jurors of New York live on
inflicting upon him expense or trouble not necessary to terms of intimacy with $400,000 transactions is not an
his own right to pursue his remedy. But, unless the assumption we easily make. Nor can we assume that a
balance is strongly in favor of the defendant, the jury from Lynchburg and vicinity would be "staggered"
plaintiff's choice of forum should rarely be disturbed. by contemplating the value of a warehouse building
that stood in their region, or of merchandise and
Factors of public interest also have place in applying fixtures such as were used there, nor are they likely to
the doctrine. Administrative difficulties follow for courts be staggered by the value of chattels which the people
when litigation is piled up in congested centers instead of that neighborhood put in storage. It is a strange
of being handled at its origin. Jury duty is a burden that argument on behalf of a Virginia plaintiff that the
ought not to be imposed upon the people of a community which gave him patronage to make his
community which has no relation to the litigation. In business valuable is not capable of furnishing jurors
cases which touch the affairs of many persons, there is who know the value of the goods they store, the
reason for holding the trial in their view and reach, building they are stored in, or the business their
rather than in remote parts of the country where they patronage creates. And there is no specification of any
can learn of it by report only. There is a local interest in local influence, other than accurate knowledge of local
having localized controversies decided at home. There conditions, that would make a fair trial improbable. The
is an appropriateness, too, in having the trial of a net of this is that we cannot say the District Court was
diversity case in a forum that is at home with the state bound to entertain a provincial fear of the
law that must govern the case, rather than having a provincialism of a Virginia jury. That leaves the Virginia
court in some other forum untangle problems in plaintiff without even a suggested reason for
conflict of laws, and in law foreign to itself. transporting this suit to New York.
The law of New York as to the discretion of a court to Defendant points out that not only the plaintiff, but
apply the doctrine of forum non conveniens, and as to every person who participated in the acts charged to
the standards that guide discretion is, so far as here be negligent, resides in or near Lynchburg. It also
involved, the same as the federal rule. Murnan v. claims a need to interplead an alleged independent
Wabash Ry. Co., 246 N.Y. 244, 158 N.E. contractor which made the delivery of the gasoline and
508; Wedemann v. United States Trust Co.. 258 N.Y. which is a Virginia corporation domiciled in Lynchburg,
315, 179 N.E. 712; see Gregonis v. Philadelphia & that it cannot interplead in New York. There also are
Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223. It approximately 350 persons residing in and around
would not be profitable therefore to pursue inquiry as Lynchburg who stored with plaintiff the goods for the
to the source from which our rule must flow. damage to which he seeks to recover. The extent to
which they have left the community since the fire and
III the number of them who will actually be needed is in
dispute. The complaint alleges that defendant's
conduct violated Lynchburg ordinances. Conditions are
Turning to the question whether this is one of those said to require proof by firemen and by many others.
rather rare cases where the doctrine should be applied, The learned and experienced trial judge was not
we look first to the interests of the litigants. unaware that litigants generally manage to try their
cases with fewer witnesses than they predict in such
The plaintiff himself is not a resident of New York, nor motions as this. But he was justified in concluding that
did any event connected with the case take place this trial is likely to be long, and to involve calling
there, nor does any witness with the possible exception many witnesses, and that Lynchburg, some 400 miles
of experts live there. No one connected with that side from New York, is the source of all proofs for either
of the case save counsel for the plaintiff resides there, side, with possible exception of experts. Certainly to fix
and he has candidly told us that he was retained by the place of trial at a point where litigants cannot
insurance companies interested presumably because compel personal attendance and may be forced to try
of subrogation. His affidavits and argument are their cases on deposition is to create a condition not
devoted to controverting claims as to defendant's satisfactory to court, jury, or most litigants. Nor is it
inconvenience, rather than to showing that the present necessarily cured by the statement of plaintiff's
forum serves any convenience of his own, with one counsel that he will see to getting many of the
exception. The only justification for trial in New York witnesses to the trial, and that some of them "would be
advanced here is one rejected by the district court and delighted to come to New York to testify." There may
is set forth in the brief as follows: be circumstances where such a proposal should be
given weight. In others, the offer may not turn out to
be as generous as defendant or court might suppose it
"This Court can readily realize that an action of this to be. Such matters are for the District Court to decide
type, involving as it does a claim for damages in an in exercise of a sound discretion.
amount close to $400,000, is one which may stagger
The court likewise could well have concluded that the Hyde v. Stone, quoted with approval in Chicot County
task of the trial court would be simplified by trial in v. Sherwood. Never until today has this Court held, in
Virginia. actions for money damages for violations of common
law or statutory rights, that a district court can
If trial was in a state court, it could apply its own law to abdicate its statutory duty to exercise its jurisdiction
events occurring there. If in federal court by reason of for the alleged convenience of the defendant to a
diversity of citizenship, the court would apply the law lawsuit.
of its own state in which it is likely to be experienced.
The course of adjudication in New York federal court For reasons peculiar to the special problems of
might be beset with conflict of laws problems all admiralty and to the extraordinary remedies of equity,
avoided if the case is litigated in Virginia, where it the courts exercising admiralty and equity powers have
arose. been permitted at times to decline to exercise their
jurisdiction. This exception is rooted in the kind of
We are convinced that the District Court did not exceed relief which these courts grant and the kinds of
its powers or the bounds of its discretion in dismissing problems which they solve. Courts of equity developed
plaintiff's complaint and remitting him to the courts of to afford relief where a money judgment in the
his own community. The Circuit Court of Appeals took common law courts provided no adequate remedy for
too restrictive a view of the doctrine as approved by an injured person. From the beginning of equitable
this Court. Its judgment is jurisdiction up to now, the chancery courts have
generally granted or withheld their special remedies at
their discretion, and "courts of admiralty . . . act upon
Reversed. enlarged principles of equity." But this Court has, on
many occasions, severely restricted the discretion of
MR. JUSTICE REED and MR. JUSTICE BURTON dissent. district courts to decline to grant even the
They do not set out the factual reasons for their extraordinary equitable remedies. Meredith v. Winter
dissent, since the Court's affirmance of Koster v. Haven, supra, and cases there cited, Previously, federal
Lumbermens Mutual casualty Co., 330 U. S. 518, would courts have not generally been allowed the broad and
control. indefinite discretion to dispose even of equity cases
solely on a trial court's judgment of the relative
convenience of the forum for the parties themselves.
For a major factor in these equity decisions has been
the relative ability of the forum to shape and execute
MR. JUSTICE BLACK, dissenting. its equitable remedy.
The defendant corporation is organized under the laws No such discretionary authority to decline to decide a
of Pennsylvania, but is qualified to do business and case, however, has, before today, been vested in
maintains an office in New York. Plaintiff is an individual federal courts in actions for money judgments deriving
residing and doing business in Virginia. The accident in from statutes or the common law. To engraft the
which plaintiff alleges to have been damaged occurred doctrine of forum non conveniens upon the statutes
in Lynchburg, Virginia. Plaintiff brought this action in fixing jurisdiction and proper venue in the district
the Federal District Court in New York. Section 11 of the courts in such actions seems to me to be far more than
Judiciary Act of 1789, 1 Stat. 78, carried over into the the mere filling in of the interstices of those statutes.
Judicial Code, 24, 28 U.S.C. 41(1), confers
jurisdiction upon federal district courts of all actions at It may be that a statute should be passed authorizing
law between citizens of different states. The Court does the federal district courts to decline to try so-called
not suggest that the federal district court in New York common law cases according to the convenience of the
lacks jurisdiction under this statute, or that the venue parties. But whether there should be such a statute,
was improper in this case. But it holds that a district and determination of its scope and the safeguards
court may abdicate its jurisdiction when a defendant which should surround it, are, in my judgment,
shows to the satisfaction of a district court that it questions of policy which Congress should decide.
would be more convenient and less vexatious for the There are strong arguments presented by the Court in
defendant if the trial were held in another jurisdiction. its opinion why federal courts exercising their common
Neither the venue statute nor the statute which has law jurisdiction should have the discretionary powers
governed jurisdiction since 1789 contains any which equity courts have always possessed in
indication or implication that a federal district court, dispensing equitable relief. I think equally strong
once satisfied that jurisdiction and venue requirements arguments could be advanced to show that they
have been met, may decline to exercise its jurisdiction. should not. For any individual or corporate defendant
Except in relation to the exercise of the extraordinary who does part of his business in states other than the
admiralty and equity powers of district courts, this one in which he is sued will almost invariably be put to
Court has never before held contrary to the general some inconvenience to defend himself. It will be a
principle that poorly represented multistate defendant who cannot
produce substantial evidence and good reasons fitting
"the courts of the United States are bound to proceed the rule now adopted by this Court tending to establish
to judgment and to afford redress to suitors before that the forum of action against him is most
them in every case to which their jurisdiction extends. inconvenient. The Court's new rule will thus clutter the
They cannot abdicate their authority or duty in any very threshold of the federal courts with a preliminary
case in favor of another jurisdiction." trial of fact concerning the relative convenience of
forums. The preliminary disposition of this factual
question will, I believe, produce the very kind of
uncertainty, confusion, and hardship which stalled and
handicapped persons seeking compensation for
maritime injuries following this Court's decision
in Southern Pacific Co. v. Jensen, The broad and
indefinite discretion left to federal courts to decide the
question of convenience from the welter of factors
which are relevant to such a judgment will inevitably
produce a complex of close and indistinguishable
decisions from which accurate prediction of the proper
forum will become difficult, if not impossible. Yet World-Wide Volkswagen Corp. v. Woodson, 444
plaintiffs will be asked U.S. 286 (1980)
Argued October 3, 1979 / Decided January 21,
"to determine with certainty before bringing their 1980
actions that factual question over which courts
regularly divide among themselves and within their CERTIORARI TO THE SUPREME COURT OF OKLAHOMA
own membership. As penalty for error, the injured
individual may not only suffer serious financial loss Syllabus
through the delay and expense of litigation, but
discover that his claim has been barred by the statute
of limitations in the proper forum while he was A products liability action was instituted in an
erroneously pursuing it elsewhere." Oklahoma st,ate court by respondents husband and
wife to recover for personal injuries sustained in
Oklahoma in an accident involving an automobile that
This very case illustrates the hazards of delay. It must had been purchased by them in New York while they
be begun anew in another forum after the District were New York residents and that was being driven
Court, the Circuit Court of Appeals, and now this Court through Oklahoma at the time of the accident. The
have had their time-consuming say as to the relative defendants included the automobile retailer and its
convenience of the forum in which the plaintiff chose wholesaler (petitioners), New York corporations that did
to seek redress. Whether the statute of limitations has no business in Oklahoma. Petitioners entered special
run against the plaintiff we do not know. The appearances, claiming that Oklahoma's exercise of
convenience which the individual defendant will enjoy jurisdiction over them would offend limitations on the
from the Court's new rule of forum non conveniens in State's jurisdiction imposed by the Due Process Clause
law actions may be thought to justify its inherent of the Fourteenth Amendment. The trial court rejected
delays, uncertainties, administrative complications, petitioners' claims, and they then sought, but were
and hardships. But, in any event, Congress has not yet denied, a writ of prohibition in the Oklahoma Supreme
said so, and I do not think that this Court should, 150 Court to restrain respondent trial judge from
years after the passage of the Judiciary Act, fill in what exercising in personam jurisdiction over them.
it thinks is a deficiency in the deliberate policy which
Congress adopted. Whether the doctrine of forum non
conveniens is good or bad, I should wait for Congress Held: Consistently with the Due Process Clause, the
to adopt it. Oklahoma trial court may not exercise in
personam jurisdiction over petitioners.
MR. JUSTICE RUTLEDGE joins in this opinion.
(a) A state court may exercise personal jurisdiction
over a nonresident defendant only so long as there
exist "minimum contacts" between the defendant and
the forum State. International Shoe Co. v.
Washington, 326 U. S. 310. The defendant's contacts
with the forum State must be such that maintenance of
the suit does not offend traditional notions of fair play
and substantial justice, id. at 326 U. S. 316, and the
relationship between the defendant and the forum
must be such that it is "reasonable . . . to require the
corporation to defend the particular suit which is
brought there," The Due Process Clause "does not
contemplate that a state may make binding a
judgment in personam against an individual or
corporate defendant with which the state has no
contacts, ties, or relations."
Respondents Harry and Kay Robinson purchased a new Although the court noted that the proper approach was
Audi automobile from petitioner Seaway Volkswagen, to test jurisdiction against both statutory and
Inc. (Seaway), in Massena, N.Y. in 1976. The following constitutional standards, its analysis did not distinguish
year, the Robinson family, who resided in New York, left these questions, probably because 1701.03(a)(4) has
that State for a new home in Arizona. As they passed been interpreted as conferring jurisdiction to the limits
through the State of Oklahoma, another car struck permitted by the United States Constitution. [Footnote
their Audi in the rear, causing a fire which severely 8] The court's rationale was contained in the following
burned Kay Robinson and her two children. [Footnote paragraph:
1]
"In the case before us, the product being sold and
The Robinsons [Footnote 2] subsequently brought a distributed by the petitioners is, by its very design and
products liability action in the District Court for Creek purpose, so mobile that petitioners can foresee its
County, Okla., claiming that their injuries resulted from possible use in Oklahoma. This is especially true of the
defective design and placement of the Audi's gas tank distributor, who has the exclusive right to distribute
and fuel system. They joined as defendants the such automobile in New York, New Jersey and
automobile's manufacturer, Audi NSU Auto Union Connecticut. The evidence presented below
Aktiengesellschaft (Audi); its importer, Volkswagen of demonstrated that goods sold and distributed by the
America, Inc. (Volkswagen); its regional distributor, petitioners were used in the State of Oklahoma, and,
petitioner World-Wide Volkswagen Corp. (World-Wide); under the facts, we believe it reasonable to infer, given
and its retail dealer, petitioner Seaway. Seaway and the retail value of the automobile, that the petitioners
World-Wide entered special appearances, [Footnote 3] derive substantial income from automobiles which from
claiming that Oklahoma's exercise of jurisdiction over time to time are used in the State of Oklahoma. This
them would offend the limitations on the State's being the case, we hold that, under the facts
jurisdiction imposed by the Due Process Clause of the presented, the trial court was justified in concluding
Fourteenth Amendment. [Footnote 4] that the petitioners derive substantial revenue from
goods used or consumed in this State."
If foreseeability were the criterion, a local California tire In a variant on the previous argument, it is contended
retailer could be forced to defend in Pennsylvania when that jurisdiction can be supported by the fact that
a blowout occurs there, a Wisconsin seller of a petitioners earn substantial revenue from goods used
defective automobile jack could be haled before a in Oklahoma. The Oklahoma Supreme Court so found,
distant court for damage caused in New Jersey; or a drawing the inference that, because one automobile
Florida soft-drink concessionaire could be summoned sold by petitioners had been used in Oklahoma, others
to Alaska to account for injuries happening there. Every might have been used there also. While this inference
seller of chattels would, in effect, appoint the chattel seems less than compelling on the facts of the instant
his agent for service of process. His amenability to suit case, we need not question the court's factual findings
would travel with the chattel. We recently abandoned in order to reject its reasoning.
the outworn rule of that the interest of a creditor in a
debt could be extinguished or otherwise affected by This argument seems to make the point that the
any State having transitory jurisdiction over the debtor. purchase of automobiles in New York, from which the
Having interred the mechanical rule that a creditor's petitioners earn substantial revenue, would not
amenability to a quasi in remaction travels with his occur but for the fact that the automobiles are capable
debtor, we are unwilling to endorse an analogous of use in distant States like Oklahoma. Respondents
principle in the present case. [Footnote 11] observe that the very purpose of an automobile is to
travel, and that travel of automobiles sold by The existence of contacts, so long as there were some,
petitioners is facilitated by an extensive chain of was merely one way of giving content to the
Volkswagen service centers throughout the country, determination of fairness and reasonableness.
including some in Oklahoma. [Footnote 12]
Surely International Shoe contemplated that the
However, financial benefits accruing to the defendant significance of the contacts necessary to support
from a collateral relation to the forum State will not jurisdiction would diminish if some other consideration
support jurisdiction if they do not stem from a helped establish that jurisdiction would be fair and
constitutionally cognizable contact with that State. In reasonable. The interests of the State and other parties
our view, whatever marginal revenues petitioners may in proceeding with the case in a particular forum are
receive by virtue of the fact that their products are such considerations. McGee v. International Life Ins.,
capable of use in Oklahoma is far too attenuated a for instance, accorded great importance to a State's
contact to justify that State's exercise of in "manifest interest in providing effective means of
personam jurisdiction over them. redress" for its citizens.
Because we find that petitioners have no "contacts, Another consideration is the actual burden a defendant
ties, or relations" with the State of must bear in defending the suit in the forum. McGee,
Oklahoma, International Shoe Co. v. Washington, supra. Because lesser burdens reduce the unfairness to
supra, at 326 U. S. 319, the judgment of the Supreme the defendant, jurisdiction may be justified despite less
Court of Oklahoma is Reversed. significant contacts. The burden, of course, must be of
constitutional dimension. Due process limits on
jurisdiction do not protect a defendant from all
inconvenience of travel, McGee, supra at355 U. S. 224,
and it would not be sensible to make the constitutional
MR. JUSTICE BRENNAN, dissenting. * rule turn solely on the number of miles the defendant
must travel to the courtroom. [Footnote 2/1] Instead,
The Court holds that the Due Process Clause of the the constitutionally significant "burden" to be analyzed
Fourteenth Amendment bars the States from asserting relates to the mobility of the defendant's defense. For
jurisdiction over the defendants in these two cases. In instance, if having to travel to a foreign forum would
each case, the Court so decides because it fails to find hamper the defense because witnesses or evidence or
the "minimum contacts" that have been required the defendant himself were immobile, or if there were
since International Shoe Co. v. Washington, 326 U. S. a disproportionately large number of witnesses or
310, 326 U. S. 316 (1945). Because I believe that the amount of evidence that would have to be transported
Court reads International Shoe and its progeny too at the defendant's expense, or if being away from
narrowly, and because I believe that the standards home for the duration of the trial would work some
enunciated by those cases may already be obsolete as special hardship on the defendant, then the
constitutional boundaries, I dissent. Constitution would require special consideration for the
defendant's interests.
I
That considerations other than contacts between the
forum and the defendant are relevant necessarily
The Court's opinions focus tightly on the existence of means that the Constitution does not require that trial
contacts between the forum and the defendant. In so be held in the State which has the "best contacts" with
doing, they accord too little weight to the strength of the defendant. (BRENNAN, J., dissenting). The
the forum State's interest in the case, and fail to defendant has no constitutional entitlement to the best
explore whether there would be any actual forum or, for that matter, to any particular forum.
inconvenience to the defendant. The essential inquiry Under even the most restrictive view of International
in locating the constitutional limits on state court Shoe, several States could have jurisdiction over a
jurisdiction over absent defendants is whether the particular cause of action. We need only determine
particular exercise of jurisdiction offends "traditional whether the forum States in these cases satisfy the
notions of fair play and substantial justice.' The clear constitutional minimum. [Footnote 2/2]
focus in International Shoe was on fairness and
reasonableness. The Court specifically declined to
establish a mechanical test based on the quantum of II
contacts between a State and the defendant:
In each of these cases, I would find that the forum
"Whether due process is satisfied must depend, rather, State has an interest in permitting the litigation to go
upon the quality and nature of the activity in relation forward, the litigation is connected to the forum, the
to the fair and orderly administration of the laws which defendant is linked to the forum, and the burden of
it was the purpose of the due process clause to defending is not unreasonable. Accordingly, I would
insure. That clause does not contemplate that a state hold that it is neither unfair nor unreasonable to
may make binding a judgment in personam against an require these defendants to defend in the forum State.
individual or corporate defendant with which the state
has no contacts, ties, or relations." A
The Court's opinion in No. 78-1078 suggests that the The States themselves, of course, remain free to
defendant ought to be subject to a State's jurisdiction choose whether to extend their jurisdiction to embrace
only if he has contacts with the State "such that he all defendants over whom the Constitution would
should reasonably anticipate being haled into court permit exercise of jurisdiction.
there." [Footnote 2/18] Ante at444 U. S. 297. There is
nothing unreasonable or unfair, however, about
recognizing commercial reality. Given the tremendous [Footnote 2/3]
mobility of goods and people, and the inability of
businessmen to control where goods are taken by The plaintiff asserted jurisdiction pursuant to Minn.Stat.
customers (or retailers), I do not think that the 571.41, subd. 2 (1978), which allows garnishment of
defendant should be in complete control of the an insurer's obligation to defend and indemnify its
geographical stretch of his amenability to suit. insured. See post at 444 U. S. 322-323, n. 3, and
Jurisdiction is no longer premised on the notion that accompanying text. The Minnesota Supreme Court has
nonresident defendants have somehow impliedly interpreted the statute as allowing suit only to the
consented to suit. People should understand that they insurance policy's liability limit. The court has held that
are held responsible for the consequences of their the statute embodies the rule of Seider v. Roth.
actions, and that, in our society, most actions have
consequences affecting many States. When an action
in fact causes injury in another State, the actor should [Footnote 2/4]
be prepared to answer for it there unless defending in
that State would be unfair for some reason other than To say that these considerations are relevant is a far
that a state boundary must be crossed. [Footnote 2/19] cry from saying that they are "substituted for . . .
contacts with the defendant and the cause of
In effect, the Court is allowing defendants to assert the action." Post at 444 U. S. 332. The forum's interest in
sovereign rights of their home States. The expressed the litigation is an independent point of inquiry even
fear is that, otherwise, all limits on personal jurisdiction under traditional readings of International
would disappear. But the argument's premise is wrong. Shoe's progeny. If there is a shift in focus, it is not away
I would not abolish limits on jurisdiction or strip state from "the relationship among the defendant, the
boundaries of all significance, see Hanson, forum, and the litigation." Post at 444 U. S.
supra at 357 U. S. 260 (Black, J., dissenting); I would 332 (emphasis added). Instead, it is a shift within the
still require the plaintiff to demonstrate sufficient same accepted relationship from the
contacts among the parties, the forum, and the connections between the defendant and the forum to
litigation to make the forum a reasonable State in those between the forum and the litigation.
which to hold the trial. [Footnote 2/20]
[Footnote 2/5]
I would also, however, strip the defendant of an
unjustified veto power over certain very appropriate In every International Shoe inquiry, the defendant,
fora -- a power the defendant justifiably enjoyed long necessarily, is outside the forum State. Thus, it is
ago when communication and travel over long inevitable that either the defendant or the plaintiff will
distances were slow and unpredictable and when be inconvenienced. The problem existing at the time
notions of state sovereignty were impractical and of Pennoyer v. Neff, 95 U. S. 714(1878), that a resident
exaggerated. But I repeat that that is not today's plaintiff could obtain a binding judgment against an
world. If a plaintiff can show that his chosen forum unsuspecting, distant defendant, has virtually
State has a sufficient interest in the litigation (or disappeared in this age of instant communication and
sufficient contacts with the defendant), then the virtually instant travel.
defendant who cannot show some real injury to a
constitutionally protected interest, see O'Connor v.
[Footnote 2/6]
Lee-Hy Paving Corp., 579 F.2d at 201, should have no
constitutional excuse not to appear. [Footnote 2/21]
It is true that the insurance contract is not the subject
of the litigation. Post at 444 U. S. 329. But one of the
The plaintiffs in each of these cases brought suit in a
undisputed clauses of the insurance policy is that the
forum with which they had significant contacts and
insurer will defend this action and pay any damages
which had significant contacts with the litigation. I am
assessed, up to the policy limit. The very purpose of
not convinced that the defendants would suffer any
the contract is to relieve the insured from having to
"heavy and disproportionate burden" in defending the
defend himself, and, under the state statute, there
suits. Accordingly, I would hold that the Constitution
could be no suit absent the insurance contract. Thus, in
should not shield the defendants from appearing and
defending in the plaintiffs' chosen fora.
a real sense, the insurance contract is the source of the revenue passenger-miles flown on domestic and
suit. international flights increased by nearly three orders of
magnitude between 1945 (450 million) and 1976 (179
[Footnote 2/7] billion). U.S. Department of Commerce, Historical
Statistics of the United States, pt. 2, P. 770 (1975); U.S.
Department of Commerce, Statistical Abstract of the
Were the defendant a real party subject to actual United States 670 (1978). Automobile vehicle-miles
liability, or were there significant noneconomic (including passenger cars, buses, and trucks) driven in
consequences such as those suggested by the Court's the United States increased by a relatively modest
note 20, a more substantial connection with the forum 500% during the same period, growing from 250 billion
State might well be constitutionally required. in 1945 to 1,409 billion in 1976.
On the basis of this fact, the state court inferred that The Court has recognized that there are cases where
the petitioners derived substantial revenue from goods the interests of justice can turn the focus of the
used in Oklahoma. The inference is not without jurisdictional inquiry away from the contacts between a
support. Certainly, were use of goods accepted as a defendant and the forum State. For instance, the Court
relevant contact, a plaintiff would not need to have an indicated that the requirement of contacts may be
exact count of the number of petitioners' cars that are greatly relaxed (if indeed any personal contacts would
used in Oklahoma. be required) where a plaintiff is suing a nonresident
defendant to enforce a judgment procured in another
[Footnote 2/9] State.
We hold that this petitioner is not barred from access "Every sovereign state is bound to respect the
to the federal courts. independence of every other sovereign state, and the
courts of one country will not sit in judgment on the
acts of the government of another, done within its own
III territory. Redress of grievances by reason of such acts
must be obtained through the means open to be
Respondents claimed in the lower courts that Cuba had availed of by sovereign powers as between
expropriated merely contractual rights the situs of themselves."
which was in New York, and that the propriety of the
taking was, therefore, governed by New York law. The Following this precept, the Court in that case refused to
District Court rejected this contention on the basis of inquire into acts of Hernandez, a revolutionary
the right of ownership possessed by C.A.V. against Farr, Venezuelan military commander whose government
Whitlock prior to payment for the sugar. That the sugar had been later recognized by the United States, which
itself was expropriated, rather than a contractual were made the basis of a damage action in this
claim, is further supported by Cuba's refusal to let the country by Underhill, an American citizen, who claimed
S.S. Hornfels sail until a new contract had been signed. that he had had unlawfully assaulted, coerced, and
Had the Cuban decree represented only an attempt to detained in Venezuela by Hernandez.
expropriate a contractual right of C.A.V., the forced
delay of shipment and Farr, Whitlock's subsequent
contract with petitioner's assignor would have been None of this Court's subsequent cases in which the act
meaningless. Neither the District Court's finding of state doctrine was directly or peripherally involved
concerning the location of the S.S. Hornfels nor its manifest any retreat from Underhill.
conclusion that Cuba had territorial jurisdiction to
expropriate the sugar, acquiesced in by the Court of On the contrary, in two of these
Appeals, is seriously challenged here. Respondents' cases, Oetjen and Ricaud, the doctrine as announced
limited view of the expropriation must be rejected. in Underhill was reaffirmed in unequivocal terms.
Respondents further contend that, if the expropriation Oetjen involved a seizure of hides from a Mexican
was of the sugar itself, this suit then becomes one to citizen as a military levy by General Villa, acting for the
enforce the public law of a foreign state, and, as such, forces of General Carranza, whose government was
is not cognizable in the courts of this country. They rely recognized by this country subsequent to the trial but
on the principle enunciated in federal and state cases prior to decision by this Court. The hides were sold to a
that a court need not give effect to the penal or Texas corporation which shipped them to the United
revenue laws of foreign countries or sister states. States and assigned them to defendant. As assignee of
the original owner, plaintiff replevied the hides,
The extent to which this doctrine may apply to other claiming that they had been seized in violation of the
kinds of public laws, though perhaps still an open Hague Conventions. In affirming a judgment for
question, need not be decided in this case. For we defendant, the Court suggested that the rules of the
have been referred to no authority which suggests that Conventions did not apply to civil war, and that, even if
the doctrine reaches a public law which, as here, has they did, the relevant seizure was not in violation of
been fully executed within the foreign state. Cuba's them. Nevertheless, it chose to rest its decision on
restraint of the S.S. Hornfels must be regarded for other grounds. It described the designation of the
these purposes to have constituted an effective taking sovereign as a political question to be determined by
of the sugar, vesting in Cuba C.A.V.'s property right in the Legislative and Executive Departments, rather than
it. Farr, Whitlock's contract with the Cuban bank, the Judicial Department, invoked the established rule
however compelled to sign Farr, Whitlock may have that such recognition operates retroactively to validate
felt, represented indeed a recognition of Cuba's past acts, and found the basic tenet of Underhill to be
dominion over the property. applicable to the case before it.
In these circumstances the question whether the rights "The principle that the conduct of one independent
acquired by Cuba are enforceable in our courts government cannot be successfully questioned in the
courts of another is as applicable to a case involving written for the purpose of relieving the court from any
the title to property brought within the custody of a constraint upon the exercise of its jurisdiction to pass
court, such as we have here, as it was held to be to the on that question.
cases cited, in which claims for damages were based
upon acts done in a foreign country, for its rests at last This Court has never had occasion to pass upon the so-
upon the highest considerations of international comity called Bernstein exception, nor need it do so now. For
and expediency. To permit the validity of the acts of whatever ambiguity may be thought to exist in the two
one sovereign state to be reexamined and perhaps letters from State Department officials on which the
condemned by the courts of another would very Court of Appeals relied , is now removed by the
certainly 'imperil the amicable relations between position which the Executive has taken in this Court on
governments and vex the peace of nations.'" the act of state claim; respondents do not, indeed,
contest the view that these letters were intended to
In Ricaud, the facts were similar -- another general of reflect no more than the Department's then wish not to
the Carranza forces seized lead bullion as a military make any statement bearing on this litigation.
levy -- except that the property taken belonged to an
American citizen. The Court found Underhill, American The outcome of this case, therefore, turns upon
Banana, and Oetjen controlling. Commenting on the whether any of the contentions urged by respondents
nature of the principle established by those cases, the against the application of the act of state doctrine in
opinion stated that the rule the premises is acceptable: (1) that the doctrine does
not apply to acts of state which violate international
"does not deprive the courts of jurisdiction once law, as is claimed to be the case here; (2) that the
acquired over a case. It requires only that when it is doctrine is inapplicable unless the Executive
made to appear that the foreign government has acted specifically interposes it in a particular case; and (3)
in a given way on the subject matter of the litigation, that, in any event, the doctrine may not be invoked by
the details of such action or the merit of the result a foreign government plaintiff in our courts.
cannot be questioned, but must be accepted by our
courts as a rule for their decision. To accept a ruling Preliminarily, we discuss the foundations on which we
authority and to decide accordingly is not a surrender deem the act of state doctrine to rest, and more
or abandonment of jurisdiction, but is an exercise of it. particularly the question of whether state or federal
It results that the title to the property in this case must law governs its application in a federal diversity case.
be determined by the result of the action taken by the
military authorities of Mexico. . . ."
We do not believe that this doctrine is compelled either
by the inherent nature of sovereign authority, as some
To the same effect is the language of Mr. Justice of the earlier decision seem to imply, or by some
Cardozo in the Shapleigh case, supra, where, in principle of international law. If a transaction takes
commenting on the validity of a Mexican land place in one jurisdiction and the forum is in another,
expropriation, he said: the forum does not, by dismissing an action or by
applying its own law, purport to divest the first
"The question is not here whether the proceeding was jurisdiction of its territorial sovereignty; it merely
so conducted as to be a wrong to our nationals under declines to adjudicate, or makes applicable its own law
the doctrines of international law, though valid under to parties or property before it. The refusal of one
the law of the situs of the land. For wrongs of that country to enforce the penal laws of another is a
order, the remedy to be followed is along the channels typical example of an instance when a court will not
of diplomacy." entertain a cause of action arising in another
jurisdiction. While historic notions of sovereign
In deciding the present case, the Court of Appeals authority do bear upon the wisdom or employing the
relied in part upon an exception to the unqualified act of state doctrine, they do not dictate its existence.
teachings of Underhill, Oetjen, and Ricaud which that
court had earlier indicated. In Bernstein v. Van That international law does not require application of
Heyghen Freres Societe Anonyme, suit was brought to the doctrine is evidenced by the practice of nations.
recover from an assignee property allegedly taken, in Most of the countries rendering decisions on the
effect, by the Nazi Government because plaintiff was subject to follow the rule rigidly. No international
Jewish. Recognizing the odious nature of this act of arbitral or judicial decision discovered suggests that
state, the court, through Judge Learned Hand, international law prescribes recognition of sovereign
nonetheless refused to consider it invalid on that acts of foreign governments, see 1 Oppenheim's
ground. Rather, it looked to see if the Executive had International Law, 115aa (Lauterpacht, 8th ed. 1955),
acted in any manner that would indicate that United and apparently no claim has ever been raised before
States Courts should refuse to give effect to such a an international tribunal that failure to apply the act of
foreign decree. Finding no such evidence, the court state doctrine constitutes a breach of international
sustained dismissal of the complaint. In a later case obligation. If international law does not prescribe use of
involving similar facts, the same court again assumed the doctrine, neither does it forbid application of the
examination of the German acts improper, but, quite rule even if it is claimed that the act of state in
evidently following the implications of Judge Hand's question violated international law. The traditional view
opinion in the earlier case, amended its mandate to of international law is that it establishes substantive
permit evidence of alleged invalidity, 210 F.2d 375, principles for determining whether one country has
subsequent to receipt by plaintiff's attorney of a letter wronged another. Because of its peculiar "nation to
from the Acting Legal Adviser to the State Department nation" character, the usual method for an individual to
seek relief is to exhaust local remedies and then repair "The courts of one independent government will not sit
to the executive authorities of his own state to in judgment upon the validity of the acts of another
persuade them to champion his claim in diplomacy or done within its own territory, even when such
before an international tribunal. Although it is, of government seizes and sells the property of an
course, true that United States courts apply American citizen within its boundaries."
international law as a part of our own in appropriate
circumstances, the public law of nations can hardly Thus, our conclusions might well be the same whether
dictate to a country which is, in theory, wronged how we dealt with this problem as one of state law, or
to treat that wrong within its domestic borders. federal law.
Despite the broad statement in Oetjen that However, we are constrained to make it clear that an
issue concerned with a basic choice regarding the
"The conduct of the foreign relations of our competence and function of the Judiciary and the
government is committed by the Constitution to the National Executive in ordering our relationships with
Executive and Legislative . . . departments," it cannot, other members of the international community must
of course, be thought that "every case or controversy be treated exclusively as an aspect of federal law. It
which touches foreign relations lies beyond judicial seems fair to assume that the Court did not have rules
cognizance." The text of the Constitution does not like the act of state doctrine in mind when it
require the act of state doctrine; it does not irrevocably decided Erie R. Co. v. Tompkins. Soon thereafter,
remove from the judiciary the capacity to review the Professor Philip C. Jessup, now a judge of the
validity of foreign acts of state. International Court of Justice, recognized the potential
dangers were Erie extended to legal problems affecting
The act of state doctrine does, however, have international relations. He cautioned that rules of
"constitutional" underpinnings. It arises out of the basic international law should not be left to divergent and
relationships between branches of government in a perhaps parochial state interpretations. His basic
system of separation of powers. It concerns the rationale is equally applicable to the act of state
competency of dissimilar institutions to make and doctrine.
implement particular kinds of decisions in the area of
international relations. The doctrine, as formulated in The Court, in the pre-Erie act of state cases, although
past decisions, expresses the strong sense of the not burdened by the problem of the source of
Judicial Branch that its engagement in the task of applicable law, used language sufficiently strong and
passing on the validity of foreign acts of state may broad-sweeping to suggest that state courts were not
hinder, rather than further, this country's pursuit of left free to develop their own doctrines (as they would
goals both for itself and for the community of nations have been had this Court merely been interpreting
as a whole in the international sphere. Many common law under Swift v. Tyson, supra). The Court of
commentators disagree with this view; they have Appeals, in the first Bernstein case, supra, a diversity
striven, by means of distinguishing and limiting past suit, plainly considered the decisions of this Court,
decisions and by advancing various considerations of despite the intervention of Erie, to be controlling in
policy, to stimulate a narrowing of the apparent scope regard to the act of state question, at the same time
of the rule. Whatever considerations are thought to indicating that New York law governed other aspects of
predominate, it is plain that the problems involved are the case. We are not without other precedent for a
uniquely federal in nature. If federal authority, in this determination that federal law governs; there are
instance, this Court, orders the field of judicial enclaves of federal judge-made law which bind the
competence in this area for the federal courts, and the States. A national body of federal-court-built law has
state courts are left free to formulate their own rules, been held to have been contemplated by 301 of the
the purposes behind the doctrine could be as Labor Management Relations Act. Principles formulated
effectively undermined as if there had been no federal by federal judicial law have been thought by this Court
pronouncement on the subject. to be necessary to protect uniquely federal interests,
Of course, the federal interest guarded in all these
We could, perhaps, in this diversity action, avoid the cases is one the ultimate statement of which is derived
question of deciding whether federal or state law is from a federal statute. Perhaps more directly in point
applicable to this aspect of the litigation. New York has are the bodies of law applied between States over
enunciated the act of state doctrine in terms that echo boundaries and in regard to the apportionment of
those of federal decisions decided during the reign interstate waters.
of Swift v. Tyson, Underhill was foreshadowed by the
words, In Hinderlider v. La Plata River Co., an opinion handed
down the same day as Erie and by the same author,
"the courts of one country are bound to abstain from Mr. Justice Brandeis, the Court declared,
sitting in judgment on the acts of another government
done within its own territory." "For whether the water of an interstate stream must be
apportioned between the two States is a question of
More recently, the Court of Appeals, in Salimoff & Co. 'federal common law' upon which neither the statutes
v. Standard Oil Co., 262 N.Y. 220, 224, 186 N.E. 679, nor the decisions of either State can be conclusive."
681, has declared,
Although the suit was between two private litigants,
and the relevant States could not be made parties, the
Court considered itself free to determine the effect of not for a public purpose, is discriminatory, or is without
an interstate compact regulating water apportionment. provision for prompt, adequate, and effective
The decision implies that no State can undermine the compensation. However, Communist countries,
federal interest in equitably apportioned interstate although they have in fact provided a degree of
waters, even if it deals with private parties. This would compensation after diplomatic efforts, commonly
not mean that, absent a compact, the apportionment recognize no obligation on the part of the taking
scheme could not be changed judicially, or by country. Certain representatives of the newly
Congress, but only that apportionment is a matter of independent and underdeveloped countries have
federal law. The problems surrounding the act of state questioned whether rules of state responsibility toward
doctrine are, albeit for different reasons, as intrinsically aliens can bind nations that have not consented to
federal as are those involved in water apportionment them, and it is argued that the traditionally articulated
or boundary disputes. The considerations supporting standards governing expropriation of property reflect
exclusion of state authority here are much like those "imperialist" interests, and are inappropriate to the
which led the Court, in United States v. California, to circumstances of emergent states.
hold that the Federal Government possessed
paramount rights in submerged lands though within The disagreement as to relevant international law
the three-mile limit of coastal States. We conclude that standards reflects an even more basic divergence
the scope of the act of state doctrine must be between the national interests of capital importing and
determined according to federal law. capital exporting nations, and between the social
ideologies of those countries that favor state control of
VI a considerable portion of the means of production and
those that adhere to a free enterprise system. It is
If the act of state doctrine is a principle of decision difficult to imagine the courts of this country
binding on federal and state courts alike, but embarking on adjudication in an area which touches
compelled by neither international law nor the more sensitively the practical and ideological goals of
Constitution, its continuing vitality depends on its the various members of the community of nations.
capacity to reflect the proper distribution of functions
between the judicial and political branches of the When we consider the prospect of the courts'
Government on matters bearing upon foreign affairs. It characterizing foreign expropriations, however
should be apparent that the greater the degree of justifiably, as invalid under international law and
codification or consensus concerning a particular area ineffective to pass title, the wisdom of the precedents
of international law, the more appropriate it is for the is confirmed. While each of the leading cases in this
judiciary to render decisions regarding it, since the Court may be argued to be distinguishable in its facts
courts can then focus on the application of an agreed from this one -- Underhill because sovereign immunity
principle to circumstances of fact, rather than on the provided an independent ground, and Oetjen,
sensitive task of establishing a principle not Ricaud, and Shapleigh because there was actually no
inconsistent with the national interest or with violation of international law -- the plain implication of
international justice. It is also evident that some all these opinions, and the import of express
aspects of international law touch much more sharply statements in Oetjen, is that the act of state doctrine
on national nerves than do others; the less important is applicable even if international law has been
the implications of an issue are for our foreign violated. In Ricaud, the one case of the three most
relations, the weaker the justification for exclusivity in plausibly involving an international law violation, the
the political branches. The balance of relevant possibility of an exception to the act of state doctrine
considerations may also be shifted if the government was not discussed. Some commentators have
which perpetrated the challenged act of state is no concluded that it was not brought to the Court's
longer in existence, as in the Bernstein case, for the attention, but Justice Clarke delivered both
political interest of this country may, as a result, be the Oetjen and Ricaud opinions on the same day, so
measurably altered. Therefore, rather than laying down we can assume that principles stated in the former
or reaffirming an inflexible and all-encompassing rule were applicable to the latter case.
in this case, we decide only that the Judicial Branch will
not examine the validity of a taking of property within The possible adverse consequences of a conclusion to
its own territory by a foreign sovereign government, the contrary of that implicit in these cases in
extant and recognized by this country at the time of highlighted by contrasting the practices of the political
suit, in the absence of a treaty or other unambiguous branch with the limitations of the judicial process in
agreement regarding controlling legal principles, even matters of this kind. Following an expropriation of any
if the complaint alleges that the taking violates significance, the Executive engages in diplomacy
customary international law. aimed to assure that United States citizens who are
harmed are compensated fairly. Representing all
There are few if any issues in international law today claimants of this country, it will often be able, either by
on which opinion seems to be so divided as the bilateral or multilateral talks, by submission to the
limitations on a state's power to expropriate the United Nations, or by the employment of economic and
property of aliens. political sanctions, to achieve some degree of general
redress. Judicial determinations of invalidity of title can,
There is, of course, authority, in international judicial on the other hand, have only an occasional impact,
and arbitral decisions, in the expressions of national since they depend on the fortuitous circumstance of
governments, and among commentators for the view the property in question being brought into this
that a taking is improper under international law if it is country. Such decisions would, if the acts involved were
declared invalid, often be likely to give offense to the foreign commerce, with the possible consequence of
expropriating country; since the concept of territorial altering the flow of international trade. If the attitude of
sovereignty is so deep-seated, any state may resent the United States courts were unclear, one buying
the refusal of the courts of another sovereign to accord expropriated goods would not know if he could safely
validity to acts within its territorial borders. Piecemeal import them into this country. Even were takings
dispositions of this sort involving the probability of known to be invalid, one would have difficulty
affront to another state could seriously interfere with determining, after goods had changed hands several
negotiations being carried on by the Executive Branch, times, whether the particular articles in question were
and might prevent or render less favorable the terms the product of an ineffective state act.
of an agreement that could otherwise be reached.
Relations with third countries which have engaged in Against the force of such considerations, we find
similar expropriations would not be immune from respondents' countervailing arguments quite
effect. unpersuasive. Their basic contention is that United
States courts could make a significant contribution to
The dangers of such adjudication are present the growth of international law, a contribution whose
regardless of whether the State Department has, as it importance, it is said, would be magnified by the
did in this case, asserted that the relevant act violated relative paucity of decisional law by international
international law. If the Executive Branch has bodies. But, given the fluidity of present world
undertaken negotiations with an expropriating country, conditions, the effectiveness of such a patchwork
but has refrained from claims of violation of the law of approach toward the formulation of an acceptable body
nations, a determination to that effect by a court might of law concerning state responsibility for expropriations
be regarded as a serious insult, while a finding of is, to say the least, highly conjectural. Moreover, it
compliance with international law would greatly rests upon the sanguine presupposition that the
strengthen the bargaining hand of the other state with decisions of the courts of the world's major capital
consequent detriment to American interests. exporting country and principal exponent of the free
enterprise system would be accepted as disinterested
Even if the State Department has proclaimed the expressions of sound legal principle by those adhering
impropriety of the expropriation, the stamp of approval to widely different ideologies.
of its view by a judicial tribunal, however, impartial,
might increase any affront, and the judicial decision It is contended that, regardless of the fortuitous
might occur at a time, almost always well after the circumstances necessary for United States jurisdiction
taking, when such an impact would be contrary to our over a case involving a foreign act of state and the
national interest. Considerably more serious and far- resultant isolated application to any expropriation
reaching consequences would flow from a judicial program taken as a whole, it is the function of the
finding that international law standards had been met courts to justly decide individual disputes before them.
if that determination flew in the face of a State Perhaps the most typical act of state case involves the
Department proclamation to the contrary. When original owner or his assignee suing one not in
articulating principles of international law in its association with the expropriating state who has had
relations with other states, the Executive Branch "title" transferred to him. But it is difficult to regard the
speaks not only as an interpreter of generally accepted claim of the original owner, who otherwise may be
and traditional rules, as would the courts, but also as recompensed through diplomatic channels, as more
an advocate of standards it believes desirable for the demanding of judicial cognizance than the claim of title
community of nations and protective of national by the innocent third party purchaser, who, if the
concerns. In short, whatever way the matter is cut, the property is taken from him, is without any remedy.
possibility of conflict between the Judicial and
Executive Branches could hardly be avoided. Respondents claim that the economic pressure
resulting from the proposed exception to the act of
Respondents contend that, even if there is not state doctrine will materially add to the protection of
agreement regarding general standards for United States investors. We are not convinced, even
determining the validity of expropriations, the alleged assuming the relevance of this contention.
combination of retaliation, discrimination, and Expropriations take place for a variety of reasons,
inadequate compensation makes it patently clear that political and ideological, as well as economic. When
this particular expropriation was in violation of one considers the variety of means possessed by this
international law. [Footnote 37] If this view is accurate, country to make secure foreign investment, the
it would still be unwise for the courts so to determine. persuasive or coercive effect of judicial invalidation of
Such a decision now would require the drawing of more acts of expropriation dwindles in comparison. The
difficult lines in subsequent cases, and these would newly independent states are in need of continuing
involve the possibility of conflict with the Executive foreign investment; the creation of a climate
view. Even if the courts avoided this course, either by unfavorable to such investment by wholesale
presuming the validity of an act of state whenever the confiscations may well work to their long-run economic
international law standard was thought unclear or by disadvantage. Foreign aid given to many of these
following the State Department declaration in such a countries provides a powerful lever in the hands of the
situation, the very expression of judicial uncertainty political branches to ensure fair treatment of United
might provide embarrassment to the Executive Branch. States nationals. Ultimately, the sanctions of economic
embargo and the freezing of assets in this country may
Another serious consequence of the exception pressed be employed. Any country willing to brave any or all of
by respondents would be to render uncertain titles in these consequences is unlikely to be deterred by
sporadic judicial decisions directly affecting only heightened by the presence of a sovereign plaintiff.
property brought to our shores. If the political branches The rebuke to a recognized power would be more
are unwilling to exercise their ample powers to effect pointed were it a suitor in our courts. In discussing the
compensation, this reflects a judgment of the national rule against enforcement of foreign penal and revenue
interest which the judiciary would be ill advised to laws, the Eire High Court of Justice, in Peter Buchanan
undermine indirectly. Ltd. v. McVey, [1955] A.C. 516, 529-530, aff'd, id. at
530, emphasized that its justification was in large
It is suggested that, if the act of state doctrine is degree the desire to avoid embarrassing another state
applicable to violations of international law, it should by scrutinizing its penal and revenue laws. Although
only be so when the Executive Branch expressly that rule presumes invalidity in the forum whereas the
stipulates that it does not wish the courts to pass on act of state principle presumes the contrary, the
the question of validity. See Association of the Bar of doctrines have a common rationale, a rationale that
the City of New York, Committee on International Law, negates the wisdom of discarding the act of state rule
A Reconsideration of the Act of State Doctrine in United when the plaintiff is a state which is not seeking
States Courts (1959). We should be slow to reject the enforcement of a public act.
representations of the Government that such a reversal
of the Bernstein principle would work serious inroads Certainly the distinction proposed would sanction self-
on the maximum effectiveness of United States help remedies, something hardly conducive to a
diplomacy. Often, the State Department will wish to peaceful international order. Had Farr, Whitlock not
refrain from taking an official position, particularly at a converted the bills of lading, or alternatively breached
moment that would be dictated by the development of its contract, Cuba could have relied on the act of state
private litigation but might be inopportune doctrine in defense of a claim brought by C.A.V. for the
diplomatically. Adverse domestic consequences might proceeds. It would be anomalous to preclude reliance
flow from an official stand which could be assuaged, if on the act of state doctrine because of Farr, Whitlock's
at all, only by revealing matters best kept secret. Of unilateral action, however justified such action may
course, a relevant consideration for the State have been under the circumstances.
Department would be the position contemplated in the
court to hear the case. It is highly questionable Respondents offer another theory for treating the case
whether the examination of validity by the judiciary differently because of Cuba's participation. It is claimed
should depend on an educated guess by the Executive that the forum should simply apply its own law to all
as to probable result, and, at any rate, should a the relevant transactions. An analogy is drawn to the
prediction be wrong, the Executive might be area of sovereign immunity, National City Bank v.
embarrassed in its dealings with other countries. We do Republic of China, 348 U. S. 356, in which, if a foreign
not now pass on the Bernstein exception, but, even if it country seeks redress in our courts, counterclaims are
were deemed valid, its suggested extension is permissible. But immunity relates to the prerogative
unwarranted. right not to have sovereign property subject to suit;
fairness has been thought to require that, when the
However offensive to the public policy of this country sovereign seeks recovery, it be subject to legitimate
and its constituent States an expropriation of this kind counterclaims against it. The act of state doctrine,
may be, we conclude that both the national interest however, although it shares with the immunity doctrine
and progress toward the goal of establishing the rule of a respect for sovereign states, concerns the limits for
law among nations are best served by maintaining determining the validity of an otherwise applicable rule
intact the act of state doctrine in this realm of its of law. It is plain that, if a recognized government sued
application. on a contract with a United States citizen, concededly
legitimate by the locus of its making, performance, and
VII most significant contacts, the forum would not apply
its own substantive law of contracts. Since the act of
state doctrine reflects the desirability of presuming the
Finally, we must determine whether Cuba's status as a relevant transaction valid, the same result follows; the
plaintiff in this case dictates a result at variance with forum may not apply its local law regarding foreign
the conclusions reached above. If the Court were to expropriations.
distinguish between suits brought by sovereign states
and those of assignees, the rule would have little effect
unless a careful examination were made in each case Since the act of state doctrine proscribes a challenge
to determine if the private party suing had taken to the validity of the Cuban expropriation decree in this
property in good faith. Such an inquiry would be case, any counterclaim based on asserted invalidity
exceptionally difficult, since the relevant transaction must fail. Whether a theory of conversion or breach of
would almost invariably have occurred outside our contract is the proper cause of action under New York
borders. If such an investigation were deemed law, the presumed validity of the expropriation is
irrelevant, a state could always assign its claim. unaffected. Although we discern no remaining litigable
issues of fact in this case, the District Court may hear
and decide them if they develop.
It is true that the problem of security of title is not
directly presented in the instance of a sovereign
plaintiff, although, were such a plaintiff denied relief, it The judgment of the Court of Appeals is reversed, and
would ship its goods elsewhere, thereby creating an the case is remanded to the District Court for
alteration in the flow of trade. The sensitivity in regard proceedings consistent with this opinion.
to foreign relations and the possibility of
embarrassment of the Executive are, of course, It is so ordered.
doctrine and grant enforcement to a foreign act where
the act was a clear and flagrant violation of
MR. JUSTICE WHITE, dissenting. international law, as the District Court and the Court of
Appeals have found in respect to the Cuban law
challenged herein.
I am dismayed that the Court has, with one broad
stroke, declared the ascertainment and application of
international law beyond the competence of the courts II
of the United States in a large and important category
of cases. I am also disappointed in the Court's Though not a principle of international law, the
declaration that the acts of a sovereign state with doctrine of restraint, as formulated by this Court, has
regard to the property of aliens within its borders are its roots in sound policy reasons, and it is to these we
beyond the reach of international law in the courts of must turn to decide whether the act of state doctrine
this country. However clearly established that law may should be extended to cover wrongs cognizable under
be, a sovereign may violate it with impunity, except international law.
insofar as the political branches of the government
may provide a remedy. This backward-looking doctrine, Whatever may be said to constitute an act of state, our
never before declared in this Court, is carried a decisions make clear that the doctrine of nonreview
disconcerting step further: not only are the courts ordinarily applies to foreign laws affecting tangible
powerless to question acts of state proscribed by property located within the territory of a government
international law, but they are likewise powerless to which is recognized by the United States. This
refuse to adjudicate the claim founded upon a foreign judicially fashioned doctrine of nonreview is a corollary
law; they must render judgment, and thereby validate of the principle that, ordinarily, a state has jurisdiction
the lawless act. Since the Court expressly extends its to prescribe the rules governing the title to property
ruling to all acts of state expropriating property, within its territorial sovereignty, see Clarke v. Clarke,
however clearly inconsistent with the international De Vaughn v. Hutchinson, a principle reflected in the
community, all discriminatory expropriations of the conflict of laws rule, adopted in virtually all nations,
property of aliens, as for example the taking of that the lex loci is the law governing title to property.
properties of persons belonging to certain races, This conflict rule would have been enough in itself to
religions or nationalities, are entitled to automatic have controlled the outcome of most of the act of state
validation in the courts of the United States. No other cases decided by this Court. Both of these rules rest on
civilized country has found such a rigid rule necessary the deeply imbedded postulate in international law of
for the survival of the Executive Branch of its the territorial supremacy of the sovereign, a postulate
government; the Executive of no other government that has been characterized as the touchstone of
seems to require such insulation from international law private and public international law. That the act of
adjudications in its courts; and no other judiciary is state doctrine is rooted in a well established concept of
apparently so incompetent to ascertain and apply international law is evidenced by the practice of other
international law. countries. These countries, without employing any act
of state doctrine, afford substantial respect to acts of
I do not believe that the act of state doctrine, as foreign states occurring within their territorial confines.
judicially fashioned in this Court, and the reasons Our act of state doctrine, as formulated in past
underlying it, require American courts to decide cases decisions of the Court, carries the territorial concept
in disregard of international law and of the rights of one step further. It precludes a challenge to the validity
litigants to a full determination on the merits. of foreign law on the ordinary conflict of laws ground of
repugnancy to the public policy of the forum. Against
I the objection that the foreign act violates domestic
public policy, it has been said that the foreign law
provides the rule of decision where the lex loci rule
Prior decisions of this Court in which the act of state would so indicate, in American courts.
doctrine was deemed controlling do not support the
assertion that foreign acts of state must be enforced or
recognized or applied in American courts when they The reasons that underlie the deference afforded to
violate the law of nations. These cases do hold that a foreign acts affecting property in the acting country are
foreign act of state applied to persons or property several; such deference reflects an effort to maintain a
within its borders may not be denied effect in our certain stability and predictability in transnational
courts on the ground that it violates the public policy of transactions, to avoid friction between nations, to
the forum. Also, the broad language in some of these encourage settlement of these disputes through
cases does evince an attitude of caution and self- diplomatic means, and to avoid interference with the
imposed restraint in dealing with the laws of a foreign Executive control of foreign relations. To adduce sound
nation. But violations of international law were either reasons for a policy of nonreview is not to resolve the
not presented in these cases, because the parties or problem at hand, but to delineate some of the
predecessors in title were nationals of the acting state, considerations that are pertinent to its resolution.
or the claimed violation was insubstantial in light of the
facts presented to the Court and the principles of Contrary to the assumption underlying the Court's
international law applicable at the time. opinion, these considerations are relative, their
strength varies from case to case, and they are by no
These cases do not strongly imply or even suggest that means controlling in all litigation involving the public
the Court would woodenly apply the act of state acts of a foreign government. This is made abundantly
clear by numerous cases in which the validity of a
foreign act of state is drawn in question and in which Habana: "[i]nternational law is part of our law, and
these identical considerations are present in the same must be ascertained and administered by the courts of
or a greater degree. American courts have denied justice of appropriate jurisdiction as often as questions
recognition or effect to foreign law, otherwise of right depending upon it are duly presented for their
applicable under the conflict of laws rules of the forum, determination."
to many foreign laws where these laws are deeply
inconsistent with the policy of the forum, Principles of international law have been applied in our
notwithstanding that these laws were of obvious courts to resolve controversies not merely because
political and social importance to the acting country. they provide a convenient rule for decision, but
For example, foreign confiscatory decrees purporting to because they represent a consensus among civilized
divest nationals and corporations of the foreign nations on the proper ordering of relations between
sovereign of property located in the United States nations and the citizens thereof. Fundamental fairness
uniformly have been denied effect in our courts, to litigants, as well as the interest in stability of
including this Court; courts continued to recognize relationships and preservation of reasonable
private property rights of Russian corporations owning expectations, call for their application whenever
property within the United States long after the international law is controlling in a case or controversy.
Russian Government, recognized by the United States,
confiscated all such property and had rescinded the
laws on which corporate identity depended. The relevance of international law to a just resolution
Furthermore, our courts customarily refuse to enforce of this case is apparent from the impact of
the revenue and penal laws of a foreign state, since no international law on other aspects of this controversy.
country has an obligation to further the governmental Indeed, it is only because of the application of
interests of a foreign sovereign. And the judgments of international rules to resolve other issues that the act
foreign courts are denied conclusive or prima of state doctrine becomes the determinative issue in
facie effect where the judgment is based on a statute this case. The basic rule that the law of the situs of
unenforceable in the forum, where the procedures of property is the proper law to be applied in determining
the rendering court markedly depart from our notions title in other forums, whether styled a rule of private
of fair procedure, and generally where enforcement international law or domestic conflict of law, is rooted
would be contrary to the public policy of the forum. in concepts firmly embedded in a consensus of nations
These rules demonstrate that our courts have never on territorial sovereignty. Without such a consensus
been bound to pay unlimited deference to foreign acts and the conflict of laws rule derived therefrom, the
of state, defined as an act or law in which the question of whether Cuba's decree can be measured
sovereign's governmental interest is involved; they against the norms of international law would never
simultaneously cast doubt on the proposition that the arise in this litigation, since, then, a court presumably
additional element in the case at bar, that the property would be free to apply its own rules governing the
may have been within the territorial confines of Cuba acquisition of title to property. Furthermore, the
when the expropriation decree was promulgated, contention that the sugar in question was within the
requires automatic deference to the decree, regardless territorial confines of Cuba when the Cuban decree was
of whether the foreign act violates international law. enacted itself rests on widely accepted principles of
international law, namely, that the bays or inlets
contiguous to a country are within its boundaries, and
III that territorial jurisdiction extends at least three miles
beyond these boundaries. See Oppenheim,
I start with what I thought to be unassailable International Law, 186, 190-191 (Lauterpacht, 8th
propositions: that our courts are obliged to determine ed. 1955). Without these rules derived from
controversies on their merits, in accordance with the international law, this confiscation could be
applicable law; and that part of the law American characterized as extraterritorial, and therefore -- unless
courts are bound to administer is international law. the Court also intends to change this rule -- subject to
the public policy test traditionally applied to
Article III, 2, of the Constitutional states that "[t]he extraterritorial takings of property, even though
judicial Power shall extend to all Cases . . . affecting embarrassing to foreign affairs. Further, in response to
Ambassadors, other public Ministers and Consuls; -- to the contention that title to the sugar had already
all Cases of admiralty and maritime Jurisdiction; -- to passed to Farr, Whitlock by virtue of the contract with
Controversies . . . between a State, or the Citizens C.A.V. when the nationalization decree took effect, it
thereof, and foreign States, Citizens or Subjects." was held below that, under "the law merchant
common to civilized countries" (emphasis supplied),
Farr, Whitlock could not acquire title to the shipment
And 1332 of the Judicial Code gives the courts until payment was made in New York. Thus, the central
jurisdiction over all civil actions between citizens of a issue in this litigation is posed only because of
State and foreign states or citizens or subjects thereof. numerous other applications of the law of nations and
The doctrine that the law of nations is a part of the law domestic rules derived therefrom in respect to
of the land, originally formulated in England and subsidiary, but otherwise controlling, legal issues in the
brought to America as part of our legal heritage, is controversy.
reflected in the debates during the Constitutional
Convention and in the Constitution itself. This Court
has time and again effectuated the clear The Court accepts the application of rules of
understanding of the Framers, as embodied in the international law to other aspects of this litigation,
Constitution, by applying the law of nations to resolve accepts the relevance of international law in other
cases and controversies. As stated in The Paquete
cases, and announces that, when there is an the act of state under review would seem to deny the
appropriate degree of existence or purport of such norms, a view that seems
inconsistent with the role of international law in
"consensus concerning a particular area of ordering the relations between nations. Finally, the
international law, the more appropriate it is for the impartial application of international law would not
judiciary to render decisions regarding it, since the only be an affirmation of the existence and binding
courts can then focus on the application of an agreed effect of international rules of order, but also a
principle to circumstances of fact, rather than on the refutation of the notion that this body of law consists of
sensitive task of establishing a principle not no more than the divergent and parochial views of the
inconsistent with the national interest or with capital importing and exporting nations, the socialist
international justice." and free enterprise nations.
The Court then, rather lightly, in my view, dispenses The Court puts these considerations to rest with the
with its obligation to resolve controversies in assumption that the decisions of the courts "of the
accordance with "international justice" and the world's major capital exporting country and principal
"national interest" by assuming and declaring that exponent of the free enterprise system" would hardly
there are no areas of agreement between nations in be accepted as impartial expressions of sound legal
respect to expropriations. There may not be. But, principle. The assumption, if sound, would apply to any
without critical examination, which the Court fails to other problem arising from transactions that cross
provide, I would not conclude that a confiscatory taking state lines, and is tantamount to a declaration excusing
which discriminates against nationals of another this Court from any future consequential role in the
country to retaliate against the government of that clarification and application of international law. This
country falls within that area of issues in international declaration ignores the historic role which this Court
law "on which opinion seems to be so divided." Nor and other American courts have played in applying and
would I assume, as the ironclad rule of the Court maintaining principles of international law.
necessarily implies, that there is not likely to be a
consensus among nations in this area, as for example Of course, there are many unsettled areas of
upon the illegality of discriminatory takings of alien international law, as there are of domestic law, and
property based upon race, religion or nationality. But, these areas present sensitive problems of
most of all, I would not declare that, even if there were accommodating the interests of nations that subscribe
a clear consensus in the international community, the to divergent economic and political systems. It may be
courts must close their eyes to a lawless act and that certain nationalizations of property for a public
validate the transgression by rendering judgment for purpose fall within this area. Also, it may be that
the foreign state at its own request. This is an domestic courts, as compared to international tribunals
unfortunate declaration for this Court to make. It is, of or arbitral commissions, have a different and less
course, wholly inconsistent with the premise from active role to play in formulating new rules of
which the Court starts, and, under it, banishment of international law or in choosing between rules not yet
international law from the courts is complete and final adhered to by any substantial group of nations. Where
in cases like this. I cannot so cavalierly ignore the a clear violation of international law is not
obligations of a court to dispense justice to the litigants demonstrated, I would agree that principles of comity
before it. underlying the act of state doctrine warrant recognition
and enforcement of the foreign act. But none of these
IV considerations relieves a court of the obligation to
make an inquiry into the validity of the foreign act,
none of them warrants a flat rule of no inquiry at all.
The reasons for nonreview, based as they are on The vice of the act of state doctrine, as formulated by
traditional concepts of territorial sovereignty, lose the Court and applied in this case, where the decree is
much of their force when the foreign act of state is alleged not only to be confiscatory, but also retaliatory
shown to be a violation of international law. All and discriminatory, and has been found by two courts
legitimate exercises of sovereign power, whether to be a flagrant violation of international law, is that it
territorial or otherwise, should be exercised precludes any such examination, and proscribes any
consistently with rules of international law, including decision on whether Cuban Law No. 851 contravenes
those rules which mark the bounds of lawful state an accepted principle of international law.
action against aliens or their property located within
the territorial confines of the foreign state. Although a
state may reasonably expect that the validity of its The other objections to reviewing the act challenged
laws operating on property within its jurisdiction will herein, save for the alleged interference with the
not be defined by local notions of public policy of Executive's conduct of foreign affairs, seem without
numerous other states (although a different situation substance, both in theory and as applied to the facts of
may well be presented when courts of another state the instant case. The achievement of a minimum
are asked to lend their enforcement machinery to amount of stability and predictability in international
effectuate the foreign act), [Footnote 2/18] it cannot commercial transactions is not assured by a rule of
with impunity ignore the rules governing the conduct nonreviewability which permits any act of a foreign
of all nations and expect that other nations and state, regardless of its validity under international law,
tribunals will view its acts as within the permissible to pass muster in the courts of other states. The very
scope of territorial sovereignty. Contrariwise, to refuse act of a foreign state against aliens which contravenes
inquiry into the question of whether norms of the rules of international law, the purpose of which is to
international community have been contravened by support and foster an order upon which people can
rely, is at odds with the achievement of stability and where comity dictates giving effect to the foreign act
predictability in international transactions. And the because it is not clearly condemned under generally
infrequency of cases in American courts involving accepted principles of international law. And it cannot
foreign acts of state challenged as invalid under be contended that the Constitution allocates this area
international law furnishes no basis at all for treating to the exclusive jurisdiction of the Executive, for the
the matter as unimportant and for erecting the rule the judicial power is expressly extended by that document
Court announces today. to controversies between aliens and citizens or States,
aliens and aliens, and foreign states and American
There is also the contention that the act of state citizens or States.
doctrine serves to channel these disputes through the
processes designed to rectify wrongs of an A valid statute, treaty or executive agreement could, I
international magnitude, see Oetjen v. Central Leather assume, confine the power of federal courts to review
Co., supra; Shapleigh v. Mier, supra.The result of the or award relief in respect of foreign acts or otherwise
doctrine, it is said, requires an alien to seek relief in the displace international law as the rule of decision. I
courts or through the executive of the expropriating would not disregard a declaration by the Secretary of
country, to seek relief through diplomatic channels of State or the President that an adjudication in the courts
his own country and to seek review in an international of the validity of a foreign expropriation would impede
tribunal. These are factors an American court should relations between the United States and the foreign
consider when asked to examine a foreign act of state, government or the settlement of the controversy
although the availability and effectiveness of these through diplomatic channels. But I reject the
modes of accommodation may more often be illusory presumption that these undesirable consequences
than real. Where alternative modes are available and would follow from adjudication in every case,
are likely to be effective, our courts might well stay regardless of the circumstances. Certainly the
their hand and direct a litigant to exhaust or attempt to presumption is inappropriate here.
utilize them before adjudicating the validity of the
foreign act of state. But the possibility of alternative Soon after the promulgation of Cuban Law No. 851, the
remedies, without more, is frail support for a rule of State Department of the United States delivered a note
automatic deference to the foreign act in all cases. The of protest to the Cuban Government declaring this
Court's rule is peculiarly inappropriate in the instant nationalization law to be in violation of international
case, where no one has argued that C.A.V. can obtain law. Since the nationalization of the property in
relief in the courts of Cuba, where the United States question, the United States has broken off diplomatic
has broken off diplomatic relations with Cuba, and relations with the present Government of Cuba. And in
where the United States, although protesting the response to inquiries by counsel for the respondent in
illegality of the Cuban decrees, has not sought to the instant case, officials of the State Department
institute any action against Cuba in an international nowhere alleged that adjudication of the validity of the
tribunal. Cuban decree nationalizing C.V.A. would embarrass our
relations with Cuba or impede settlement on an
V international level. In 1963, the United States
Government issued a freeze order on all Cuban assets
There remains for consideration the relationship located in the United Sates. On these facts -- although
between the act of state doctrine and the power of the there may be others of which we are not aware -- it is
executive over matters touching upon the foreign wholly unwarranted to assume that an examination of
affairs of the Nation. It is urged that the act of state the validity of Cuban Law No. 851 and a finding of
doctrine is a necessary corollary of the executive's invalidity would intrude upon the relations between the
authority to direct the foreign relations of the United United States and Cuba.
States, and, accordingly, any exception in the doctrine,
even if limited to clear violations of international law, But the Court is moved by the spectre of another
would impede or embarrass the executive in possibility; it is said that an examination of the validity
discharging his constitutional responsibilities. Thus, of the Cuban law in this case might lead to a finding
according to the Court, even if principles of comity do that the Act is not in violation of widely accepted
not preclude inquiry into the validity of a foreign act international norms, or that an adjudication here would
under international law, due regard for the executive require a similar examination in other more difficult
function forbids such examination in the courts. cases, in one of which it would be found that the
foreign law is not in breach of international law. The
Without doubt, political matters in the realm of foreign finding, either in this case or subsequent ones, that a
affairs are within the exclusive domain of the Executive foreign act does not violate widely accepted
Branch, as, for example, issues for which there are no international principles might differ from the
available standards or which are textually committed executive's view of the act and international law, might
by the Constitution to the executive. But this is far from thereby seriously impede the executive's functions in
saying that the Constitution vests in the executive negotiating a settlement of the controversy, and would
exclusive absolute control of foreign affairs, or that the therefore be inconsistent with the national interest.
validity of a foreign act of state is necessarily a political "[T]he very expression of judicial uncertainty might
question. International law, as well as a treaty or provide embarrassment to the Executive Branch."
executive agreement, provides an ascertainable These speculations, founded on the supposed impact
standard for adjudicating the validity of some foreign of a judicial decision on diplomatic relations, seem
acts, and courts are competent to apply this body of contrary to the Court's view of the arsenal of weapons
law notwithstanding that there may be some cases possessed by this country to make secure foreign
investment, and the "ample powers [of the political executive has taken in respect to the act. I would think
branches] to effect compensation," and wholly that an adjudication by this Court that the foreign act,
inconsistent with its view of the limited competence as to which the executive is protesting and attempting
and knowledge of the judiciary in the area of foreign to secure relief for American citizens, is valid and
affairs and diplomacy. Moreover, the expression of beyond question enforceable in the courts of the
uncertainty feared by the Court is inevitable under the United States would indeed prove embarrassing to the
Court's approach, as is well exemplified by the ex Executive Branch of our Government in many
cathedra pronouncements in the instant case. While situations, much more so than a declaration of
premising that a judicial expression of uncertainty on invalidity or a refusal to adjudicate the controversy at
whether a particular act clearly violates international all. For the likelihood that validation and enforcement
law would be embarrassing to the Executive, this of a foreign act which is condemned by the executive
Court, in this very case, announces as an underpinning will be inconsistent with national policy as well as the
of its decision that goals of the international community is great. This
result is precisely because the Court, notwithstanding
"[t]here are few if any issues in international law today its protestations to the contrary, has laid down "an
on which opinion seems to be so divided as the inflexible and all-encompassing rule in this case."
limitations on a State's power to expropriate the
property of aliens," and proceeds to demonstrate the VI
absence of international standards by cataloguing the
divergent views of the "capital exporting," "free Obviously there are cases where an examination of the
enterprise" nations, of the "newly independent and foreign act and declaration of invalidity or validity
underdeveloped countries," and of the "Communist might undermine the foreign policy of the Executive
countries" toward both the issue of expropriation and Branch and its attempts at negotiating a settlement for
international law generally. The act of state doctrine a nationalization of the property of Americans. The
formulated by the Court bars review in this case, and respect ordinarily due to a foreign state, as reflected in
will do so in all others involving expropriation of alien the decisions of this Court, rests upon a desire not to
property precisely because of the lack of a consensus disturb the relations between countries and on a view
in the international community on rules of law that other means, more effective than piecemeal
governing foreign expropriations. Contrariwise, it would adjudications of claims arising out of a large-scale
seem that the act of state doctrine will not apply to a nationalization program of settling the dispute, may be
foreign act if it concerns an area in which there is available. Precisely because these considerations are
unusual agreement among nations, which is not the more or less present or absent in any given situation,
case with the broad area of expropriations. I fail to see and because the Department of our Government
how greater embarrassment flows from saying that the primarily responsible for the formulation of foreign
foreign act does not violate clear and widely accepted policy and settling these matters on a state-to-state
principles of international law than from saying, as the basis is more competent than courts to determine the
Court does, that nonexamination and validation are extent to which they are involved, a blanket
required because there are no widely accepted presumption of nonreview in each case is
principles to which to subject the foreign act. As to inappropriate, and a requirement that the State
potential embarrassment, the difference is semantic, Department render a determination after reasonable
but, as to determining the issue on its merits and as to notice, in each case, is necessary. Such an examination
upholding a regime of law, the difference is vast. would permit the Department to evaluate whether
adjudication would "vex the peace of nations," whether
These assertions might find much more support in the a friendly foreign sovereign is involved, and whether
authorities relied on by the Court and others if the settlement through diplomacy or through an
issue under discussion was not the undefined category international tribunal or arbitration is impending. Based
-- expropriation -- but the clearly discrete issue of upon such an evaluation, the Department may
adequate and effective compensation. It strains recommend to the court that adjudication should not
credulity to accept the proposition that newly emerging proceed at the present time. Such a request I would
nations or their spokesmen denounce all rules of state accord considerable deference, and I would not require
responsibility -- reject international law in regard to a full statement of reasons underlying it. But I reject
foreign nationals generally -- rather than reject the the contention that the recommendation itself would
traditional rule of international law requiring prompt, somehow impede the foreign relations of the United
adequate, and effective compensation. States, or unduly burden the Department. The Court
notes that "[a]dverse domestic consequences might
There is a further possibility of embarrassment to the flow from an official stand," by which I take it to mean
executive from the blanket presumption of validity that it might be politically embarrassing on the
applicable to all foreign expropriations, which the Court domestic front for the Department of State to interpose
chooses to ignore, and which, in my view, is far more an objection in a particular case which has attracted
self-evident than those adduced by the Court. That public attention. But an official stand is what the
embarrassment stems from the requirement that all Department must take under the so-
courts, including this Court, approve, validate, and called Bernstein exception, which the Court declines to
enforce any foreign act expropriating property at the disapprove. Assuming that there is a difference
behest of the foreign state or a private suitor, between an express official objection to examination
regardless of whether the act arbitrarily discriminates and the Executive's refusal to relieve "the court from
against aliens on the basis of race, religion, or any constraint upon the exercise of its jurisdiction," it is
nationality, and regardless of the position the not fair to allow the fate of a litigant to turn on the
possible political embarrassment of the Department of
State, and it is not this Court's role to encourage or obligation of courts to decide controversies justly and
require nonexamination by bottoming a rule of law on in accordance with the law applicable to the case.
the domestic public relations of the Department of
State. The Court also rejects this procedure, because it It is argued that abstention in the case at bar would
makes the examination of validity turn on an educated allow C.A.V. to retain possession of the proceeds from
guess by the Executive as to the probable result, and the sugar and would encourage wrongfully deprived
such a guess might turn out to be erroneous. The owners to engage in devious conduct or "self-help" in
United States, in its brief, has disclaimed any such order to compel the sovereign or one deriving title
interest in the result in these cases, either in the from him into the position of plaintiff. The short answer
ultimate outcome or the determination of validity, and I to this is that it begs the question; negotiation of the
would take the Government at its word in this matter, documents by Farr and retention of the proceeds by
without second-guessing the wisdom of its view. C.A.V. is unlawful if, but only if, Cuba acquired title to
the shipment by virtue of the nationalization decree.
This is precisely the procedure that the Department of This is the issue that cannot be decided in the case if
State adopted voluntarily in the situation where a deference to the State Department's recommendation
foreign government seeks to invoke the defense of is paid (assuming for the moment that such a
immunity in our courts. If it is not unduly disruptive for recommendation has been made). Nor is it apparent
the Department to determine whether to issue a that "self-help," if such it be deemed, in the form of
certificate of immunity to a foreign government itself refusing to recognize title derived from unlawful
when it seeks one, a recommendation by the paramount force is disruptful of or contrary to a
Department in cases where generally the sovereign is peaceful international order. Furthermore, a court has
not a party can hardly be deemed embarrassing to our ample means at its disposal to prevent a party who has
foreign relations. Moreover, such a procedure would be engaged in wrongful conduct from setting up defenses
consonant with the obligation of courts to adjudicate which would allow him to profit from the wrongdoing.
cases on the merits except for reasons wholly sufficient Where the act of state doctrine becomes a rule of
in the particular case. As I understand it, the executive judicial abstention, rather than a rule of decision for
has not yet said that adjudication in this case would the courts, the proper disposition is dismissal of the
impede his functions in the premises; rather, it has complaint or staying the litigation until the bar is lifted,
asked us to adopt a rule of law foreclosing inquiry into regardless of who has possession of the property
the subject unless the executive affirmatively allows whose title is in dispute.
the courts to adjudicate on the merits.
VII
Where the courts are requested to apply the act of
state doctrine at the behest of the State Department, it The position of the Executive Branch of the
does not follow that the courts are to proceed to Government charged with foreign affairs with respect
adjudicate the action without examining the validity of to this case is not entirely clear. As I see it, no specific
the foreign act under international law. The foreign objection by the Secretary of State to examination of
relations considerations and potential of the validity of Cuba's law has been interposed at any
embarrassment to the Executive inhere in examination stage in these proceedings, which would ordinarily lead
of the foreign act and in the result following from such to an adjudication on the merits. Disclaiming, rightfully,
an examination, not in the matter of who wins. Thus, I think, any interest in the outcome of the case, the
all the Department of State can legitimately request is United States has simply argued for a rule of
nonexamination of the foreign act. It has no proper nonexamination in every case, which literally, I
interest or authority in having courts decide a suppose, includes this one. If my view had prevailed, I
controversy upon anything less than all of the would have stayed further resolution of the issues in
applicable law or to decide it in accordance with the this Court to afford the Department of State reasonable
Executive's view of the outcome that best comports time to clarify its views in light of the opinion. In the
with the foreign or domestic affairs of the day. We are absence of a specific objection to an examination of
not dealing here with those cases where a court the validity of Cuba's law under international law, I
refuses to measure a foreign statute against public would have proceeded to determine the issue and
policy of the forum or against the fundamental law of resolve this litigation on the merits.
the foreign state itself. In those cases, the judicially
created act of state doctrine is an aspect of the
conflicts of law rules of the forum, and renders the The courts of the following countries, among others,
foreign law controlling. But where a court refuses to and their territories, have examined a fully "executed"
examine foreign law under principles of international foreign act of state expropriating property:
law, which it is required to do, solely because the
Executive Branch requests the court, for its own England: Anglo-Iranian Oil Co. v. Jaffrate, [1953] Int'l
reasons, to abstain from deciding the controlling issue L.Rep. 316 (Aden Sup.Ct.); N.V. de Bataafsche
in the controversy, then, in my view, the Executive has Petroleum Maatschappij v. The War Damage
removed the case from the realm of the law to the Comm'n [1956] Int'l L.Rep. 810 (Singapore Ct.App.).
realm of politics, and a court must decline to proceed
with the case. The proper disposition is to stay the
proceedings until circumstances permit an adjudication Netherlands: Senembah Maatschappij N.V. v. Rupubliek
or to dismiss the action where an adjudication within a Indonesie Bank Indonesia, Nederlandse Jurisprudentie
reasonable time does not seem feasible. To do 1959, No. 73, p. 218 (Amsterdam Ct.App.), excerpts
otherwise would not be in accordance with the reprinted in Domke, Indonesian Nationalization
Measures Before Foreign Courts, 54 Am.J.Int'l 305, 307- the act of state doctrine in its oft-quoted form, was a
315 (1960). suit in tort by an American citizen against an officer of
the Venezuelan Government for an unlawful detention
Germany: N.V. Verenigde Deli-Maatschapijen v. and compelled operation of the plaintiff's water
Deutsch-Indonesische Tabak-Handelsgesellschaft m.b. facilities during the course of a revolution in that
H. (Bremen Ct. m.b. H. (Bremen Ct.App.)), excerpts country. Well established principles of immunity
reprinted in Domke, of Property of Sudeten Germans precluded the plaintiff's suit, and this was one of the
Case, [1948] Am.Dig. 24, 25 (No. 12) (Amtsgericht of grounds for dismissal. However, as noted above, the
Dingolfing). Court did invoke the act of state doctrine in dismissing
the suit, and arguably the forced detention of a foreign
citizen posed a claim cognizable under international
Japan: Anglo-Iranian Oil Co. v. Indemitsu Kosan law. But the Court did not ignore this possibility of a
Kabushiki Kaisha, [1953] Int'l L.Rep. 305 (Dist.Ct. of violation of international law; rather, in distinguishing
Tokyo), aff'd, [1953] Int'l L.Rep. 312 (High Ct. of Tokyo). cases involving arrests by military authorities in the
absence of war and those concerning the right of
Italy: Anglo-Iranian Oil Co. v. S.U.P.O.R. Co., [1955] Int'l revolutionary bodies to interfere with commerce, the
L.Rep. 19 (Ct. of Venice); Anglo-Iranian Oil Co. v. Court passed on the merits of plaintiff's claim under
S.U.P.O.R. Co., [1955] Int'l L.Rep. 23 (Civ.Ct. of Rome). international law, and deemed the claim without merit
under then existing doctrines. "[A]cts
of legitimate warfare cannot be made the basis of
France: Volatron v. Moulin, [1938-1940] Ann.Dig. 24 individual liability." (Emphasis added). Indeed, the
(Ct. of App. of Aix); Societe Potasas Ibericas v. Nathan Court cited Dow v. Johnson, a suit arising from seizures
Bloch, [1938-1940] Ann.Dig. 150 (Ct. of Cassation). by American officers in the South during the Civil War,
in which it was held, without any reliance on the act of
The Court does not refer to any country which has state doctrine, that the law of nations precluded
applied the act of state doctrine in a case where a making acts of legitimate warfare a basis for liability
substantial international law issue is sought to be after the cessation of hostilities, and Ford v. Surget,
raised by an alien whose property has been which held an officer of the Confederacy immune from
expropriated. This country and this Court stand alone damages for the destruction of property during the
among the civilized nations of the world in ruling that war. American Banana Co. v. United Fruit Co., 213 U. S.
such an issue is not cognizable in a court of law. 347, a case often invoked for the blanket prohibition of
the act of state doctrine, held only that the antitrust
laws did not extend to acts committed by a private
The Court notes that the courts of both New York and
individual in a foreign country with the assistance of a
Great Britain have articulated the act of state doctrine
foreign government. Most of the language in that case
in broad language similar to that used by this Court
is in response to the issue of how far legislative
in Underhill v. Hernandez, 168 U. S. 250, and from this
jurisdiction should be presumed to extend in the
it infers that these courts recognize no international
absence of an express declaration. The Court held that
law exception to the act of state doctrine. The cases
the ordinary understandings of sovereignty warranted
relied on by the Court involved no international law
the proposition that conduct of an American citizen
issue. For, in these cases, the party objecting to the
should ordinarily be adjudged under the law where the
validity of the foreign act was a citizen of the foreign
acts occurred. Rather than ignoring international law,
state. It is significant that courts of both New York and
the law of nations was relied on for this rule of
Great Britain, in apparently the first cases in which an
statutory construction.
international law issue was squarely posed, ruled that
the act of state doctrine was no bar to examination of
the validity of the foreign act. Anglo-Iranian Oil Co. v. More directly in point are the Mexican seizures passed
Jaffrate, [1953] Int'l L.Rep. 316 (Aden Sup.Ct.): upon in Oetjen v. Central Leather Co., 246 U. S. 297,
and Ricaud v. American Metal Co., 246 U. S. 304.
In Oetjen, the plaintiff claimed title from a Mexican
"[T]he Iranian Laws of 1951 were invalid by
owner who was divested of his property during the
international law, for, by them, the property of the
Mexican revolution. The terms of the expropriation are
company was expropriated without any
not clear, but it appears that a promise of
compensation."
compensation was made by the revolutionary
government, and that the property was to be used for
Sulyok v. Penzintezeti Kozpont Budapest, 279 App.Div. the war effort. The only international law issue
528, 111 N.Y.S.2d 75, aff'd, 304 N.Y. 704, 107 N.E.2d arguably present in the case was by virtue of a treaty
604 (foreign expropriation of intangible property of the Hague Convention, to which both Mexico and the
denied effect as contrary to New York public policy). United States were signatories, governing customs of
war on land; although the Court did not rest the
In one of the earliest decisions of this Court even decision on the treaty, it took care to point out that this
arguably invoking the act of state doctrine, Hudson v. seizure was probably lawful under the treaty as a
Guestier, 4 Cranch 293, Chief Justice Marshall held that compelled contribution in time of war for the needs of
the validity of a seizure by a foreign power of a vessel the occupying army. Moreover, the Court stressed the
within the jurisdiction of the sentencing court could not fact that the title challenged was derived from a
be reviewed "unless the court passing the sentence Mexican law governing the relations between the
loses its jurisdiction by some circumstance which the Mexican Government and Mexican citizens. Aside from
law of nations can notice." (Emphasis added.) Underhill the citizenship of the plaintiff's predecessor in title, the
v. Hernandez, 168 U. S. 250, where the Court stated property seized was to satisfy an assessment of the
revolutionary government which the Mexican owner
had failed to pay. It is doubtful that this measure, even
as applied to non-Mexicans, would constitute a
violation of international law. Dow v. Johnson,
supra. In Ricaud, the titleholder was an American, and
the Court deemed this difference irrelevant "for the
reasons given" in Oetjen. In Ricaud, there was a
promise to pay for the property seized during the
revolution upon the cessation of hostilities and the
seizure was to meet exigencies created by the
revolution, which was permissible under the provisions
of the Hague Convention considered in Oetjen. This
declaration of legality in the Hague Convention, and
the international rules of war on seizures, rendered the
allegation of an international law violation
in Ricaud sufficiently frivolous so that consideration on
the merits was unnecessary. The sole question
presented in Shapleigh v. Mier, 299 U. S. 468,
concerned the legality of certain action under Mexican
law, and the parties expressly declined to press the
question of legality under international law. And the
Court's language in that case -- "[f]or wrongs of that
order, the remedy to be followed is along the channels
of diplomacy" -- must be read against the background
of an arbitral claims commission that had been set up
to determine compensation for claimants in the
position of Shapleigh, the existence of which the Court
was well aware.
I.
Bauman, 557 F.2d at 655. In fact, rarely will a case Redress of grievances by reason of such acts must be
arise where all these guidelines point in the same obtained through the means open to be availed of by
direction or where each guideline is even relevant or sovereign powers as between themselves.Every
applicable. Valenzuela-Gonzalez, 915 F.2d at 1279. sovereign State is bound to respect the independence
None of these guidelines is determinative and all five of every other sovereign State, and the courts of one
guidelines need not be satisfied at once for a writ to country will not sit in judgment on the acts of the
issue. Bauman, 557 F.2d at 654-55 (citations omitted). government of another done within its own territory.
We will limit our review to those three guidelines, W.S. Kirkpatrick Although once viewed as an
since the remaining guidelines do not affect our expression of international law, resting on
analysis.The Banks argue applicability of only the first considerations of international comity and expediency,
three Bauman guidelines. the act of state doctrine is currently viewed as a
consequence of domestic separation of powers,
No Other Adequate Means to Obtain Desired ReliefA. reflecting the strong sense of the Judicial Branch that
its engagement in the task of passing on the validity of
foreign acts of state may hinder the conduct of foreign
affairs. Banco Nacional de Cuba v. Sabbatino, 376 Relief Sought Would Require a United States Court to
U.S. 398, 416, 84 S.Ct. 923, 934, 11 L.Ed.2d 804 (1964) Declare Invalid a Foreign Sovereign's Official Act2.
(quoting Underhill, 168 U.S. at 252, 18 S.Ct. at 84). &
Co., Inc. v. Environmental Tectonics Corp., Int'l, 493 The relief sought therefore violates the act of state
U.S. 400, 404, 110 S.Ct. 701, 704, 107 L.Ed.2d 816 doctrine, and the district court's refusal to dismiss the
(1990) (quoting Banco Nacional, 376 U.S. at 423, 84 action was clearly erroneous as a matter of law. See
S.Ct. at 937). Callejo, 764 F.2d at 1116. Both of these forms of relief
would not only require a United States court to
Id. at 405, 110 S.Ct. at 704.Under this current view, question the validity of the freeze orders, but would
an action will be barred only if: (1) there is an official also render nugatory Switzerland's attempts to
act of a foreign sovereign performed within its own render legal assistance to The Republic of the
territory; and (2) the relief sought or the defense Philippines by protecting the Estate assets. In the
interposed [in the action would require] a court in the Rosales action, the MDL plaintiffs seek relief including:
United States to declare invalid the [foreign (1) an injunction restraining the Banks from
sovereign's] official act. transferring or otherwise conveying any funds or
assets held by the Banks on behalf of the Marcos
Official Act of a Foreign Sovereign1. Estate except as ordered by the district court; and (2)
a declaration that the Chinn assignment is valid and
In 1986, when Ferdinand E. Marcos left power, the binding on the Banks.
Swiss Federal Council,7 The Federal Council,
expecting the Philippine government to seek recovery Issuance of the injunctive relief sought would therefore
of funds deposited by Marcos and his family in violate the act of state doctrine.W.S. Kirkpatrick, 493
Switzerland, issued the freeze order to ensure that the U.S. at 405, 110 S.Ct. at 704. Subjecting Estate
funds did not disappear before the Philippine assets held by the Banks to the district court's further
government had an opportunity to act.the highest orders would thus allow a United States court to
governing body in the Swiss Executive Branch, issued question and, in fact, declare invalid the official act of
an Executive Order freezing all assets of the Marcos a foreign sovereign. Any order from the district court
family that were held in Switzerland. compelling the Banks to transfer or otherwise convey
Estate assets would be in direct contravention of the
Shortly thereafter, the Philippine government formally Swiss freeze orders. It is clear that the district court
requested, pursuant to the Swiss Federal Act on Mutual plans on taking control of any Estate assets held by the
Assistance in Criminal Matters (IMAC), 8 that the Banks, even though those assets are currently frozen
Government of Switzerland freeze all assets held in pursuant to official orders of Swiss authorities. The
Switzerland that belonged to Marcos and his family injunction sought by the plaintiffs would compel the
pending the outcome of a criminal investigation and Banks to hold any assets of the Marcos Estate subject
prosecution in the Philippines.9 The Philippine to the district court's further orders.
government also requested assistance in obtaining
evidence about the amount and nature of the Marcos The assignment directs entities having authority over
assets held in Switzerland and the circumstances such bank accounts to perform all necessary acts to
under which such assets were deposited. effect the transfer of the above bank accounts
forthwith. The assignment purports to assign to
After ensuring that the Philippine government's request Robert Swift, counsel for the MDL plaintiffs, all of the
complied with IMAC, the Swiss Federal Office of Police Estate's right, title and interest in and to bank
forwarded the request for assistance to the accounts maintained in Switzerland. A declaration by
enforcement authorities of the cantons in which the a United States court that the Chinn assignment is
Marcos bank accounts were maintained-Geneva, valid and binding on the Banks would also violate the
Fribourg and Zurich-with instructions to take act of state doctrine.
provisional measures immediately. 10 The cantonal
freeze orders remain in effect today. These cantonal Such a declaration would not only contradict, and
orders, which superseded the previously issued therefore declare invalid, the Swiss freeze orders, but
Executive Order, were appealed and affirmed by would also require the Banks to disregard the Swiss
judgments of the Swiss Federal Supreme Court, the orders.A declaration that this assignment is valid and
highest court in Switzerland. Pursuant to IMAC binding on the Banks would be a declaration that the
procedures which require the cantonal authorities to Banks must transfer all Estate assets held by the Banks
execute the instructions of the Swiss federal to Swift forthwith.
government, cantonal orders were immediately issued
freezing all assets belonging directly or indirectly to See Miller v. United States, 955 F.Supp. 795, 798
Marcos and/or his family. (N.D.Ohio 1996). If the MDL plaintiffs want to contest
the legality of the Swiss freeze orders, seek a
The Executive and subsequent cantonal orders were, declaration of the validity of the Chinn assignment as
therefore, clearly an official act of a forei Callejo v. against the Banks, or seek an injunction compelling the
Bancomer, S.A., 764 F.2d 1101, 1116 (5th Cir.1985). Banks to turn over the assets, they should do so via
Switzerland's act of issuing first the Executive Order the Swiss judicial system. See Underhill, 168 U.S. at
and then the cantonal freeze orders pursuant to IMAC 252, 18 S.Ct. at 84. United States courts are bound
was paradigmatically sovereign in nature; it is not to respect the independence of every other sovereign
[the type of act] that a private person can exercise. State, including Switzerland.
W.S. Kirkpatrick, 493 U.S. at 405, 110 S.Ct. at 704.gn
sovereign performed within its own territory. III.
The clerk of this court is directed to issue a writ of 61291.28 U.S.C. Section 1291 provides in relevant
mandamus directing the district court to vacate its part: The courts of appeals shall have jurisdiction of
denial of the Banks' motion to dismiss, and to dismiss appeals from all final decisions of the district courts of
the action Rosales et al. v. Credit Suisse and Swiss the United States .
Bank Corp., No. CV 96-6419 (C.D.Cal.) (Real, J.); and
further directing the district court to refrain from taking 7The Swiss Federal Council is comprised of the
any further action in the Rosales action or any other ministers of the Swiss Departments of State, Finance,
case involving any or all of the Real Parties in Interest Defense, Justice and Police, Interior, Public Economy,
and any assets of the Estate of Ferdinand E. Marcos and Transportation and Energy..
held or claimed to be held by the Banks.
8IMAC authorizes the Government of Switzerland to
Any motions for vacation or modification of this order provide assistance in criminal matters to foreign
shall be filed with the clerk of this court.This court countries that extend reciprocal treatment to
retains jurisdiction over this case. Switzerland..
The Petition for Writ of Mandamus is GRANTED. 9 Decision of Swiss Federal Supreme Court, July 1,
1987. It was alleged, for example, that Marcos and his
FOOTNOTES family had retained portions of funds from international
aid and war reparations by Japan, directly withdrawn
1 Credit Suisse maintains a branch office in Los money from the public treasury, and established and
Angeles which is also licensed as such by the California operated state trading monopolies for their personal
Banking Department. Swiss Bank maintains a profit. The Philippine government alleged that
representative office in Los Angeles and a branch office President Marcos and members of his family had used
in San Francisco, both of which are licensed as such by their governmental powers to divert state funds to
the California Banking Department. The Banks are their personal benefit. .
both incorporated under the laws of, and
headquartered in, Switzerland. . 10Switzerland is divided into 26 cantons, each with its
own government..
2 The procedure on execution, in proceedings
supplementary to and in aid of a judgment, and in Pennhurst State Sch. v. Halderman, 465 U.S. 89
proceedings on and in aid of execution shall be in (1984)
accordance with the practice and procedure of the
state in which the district court is held, existing at the
time the remedy is soughtFed.R.Civ.P. 69(a).Rule Argued February 22, 1983 Reargued October
69(a) provides:Process to enforce a judgment for the 3, 1983 Decided January 23, 1984
payment of money shall be a writ of execution, unless
the court directs otherwise. . CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR
3 Therefore, the plaintiffs in the MDL proceeding and
the Real Parties in Interest in the Rosales action are THE THIRD CIRCUIT
identical.The Real Parties in Interest in the Rosales
action are defined as the class which obtained a
judgment against the Estate of Ferdinand E. Marcos in Syllabus
the MDL proceeding. .
Respondent Halderman, a resident of petitioner
4 This assignment was signed by Walter Chinn, Clerk of Pennhurst State School and Hospital, a Pennsylvania
the United States District Court for the District of institution for the care of the mentally retarded,
Hawaii, at the direction of the district court as a brought a class action in Federal District Court against
contempt sanction against Marcos.The Chinn Pennhurst, certain of its officials, the Pennsylvania
assignment is a document that purportedly assigns all Department of Public Welfare, and various state and
right, title and interest of the Marcos Estate in any county officials (also petitioners). It was alleged that
bank accounts maintained in Switzerland to Robert A. conditions at Pennhurst violated various federal
Swift, for the benefit of the MDL plaintiffs. . constitutional and statutory rights of the class
members as well as their rights under the Pennsylvania
5 The district court did issue an order denying the Mental Health and Mental Retardation Act of 1966
Banks' motion for certification for interlocutory appeal, (MH/MR Act). Ultimately, the District Court awarded
stating only that certification would not expedite injunctive relief based in part on the MH/MR Act, which
matters in this litigation but would instead delay the was held to provide a right to adequate habilitation.
processing of this litigation to final judgment. To The Court of Appeals affirmed, holding that the MH/MR
date, no signed order has been entered in this case Act required the State to adopt the "least restrictive
indicating the disposition of the Banks' motion to environment" approach for the care of the mentally
dismiss. Instead, the district court orally denied the retarded, and rejecting petitioners' argument that the
Banks' motion to dismiss, without specifying the Eleventh Amendment barred a federal court from
grounds on which such denial was based. The district considering this pendent state law claim. The court
court never issued an order refusing to dismiss the reasoned that, since that Amendment did not bar a
Rosales action. . federal court from granting prospective injunctive relief
against state officials on the basis of federal claims,
the same result obtained with respect to a pendent (e) While it may be that applying the Eleventh
state law claim. Amendment to pendent state law claims results in
federal claims' being brought in state court or in
Held: The Eleventh Amendment prohibited the District bifurcation of claims, such considerations of policy
Court from ordering state officials to conform their cannot override the constitutional limitation on the
conduct to state law. authority of the federal judiciary to adjudicate suits
against a State.
(b) In Edelman v. Jordan, this Court recognized that POWELL, J., delivered the opinion of the Court, in which
the need to promote the supremacy of federal law that BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR,
is the basis of Young must be accommodated to the JJ., joined. BRENNAN, J., filed a dissenting opinion,
constitutional immunity of the States. Thus, the Court STEVENS, J., filed a dissenting opinion, in which
declined to extend the Young doctrine to encompass BRENNAN, MARSHALL, and BLACKMUN, JJ., joined.
retroactive relief, for to do so would effectively
eliminate the States' constitutional JUSTICE POWELL delivered the opinion of the Court.
immunity. Edelman's distinction between prospective
and retroactive relief fulfilled Young's underlying
purpose of vindicating the supreme authority of federal This case presents the question whether a federal
law while at the same time preserving to an important court may award injunctive relief against state officials
degree the States' constitutional immunity. But this on the basis of state law.
need to reconcile competing interests is wholly absent
when a plaintiff alleges that a state official has violated I
state law. In such a case, the entire basis for the
doctrine of Young and Edelman disappears. A federal
court's grant of relief against state officials on the basis This litigation, here for the second time, concerns the
of state law, whether prospective or retroactive, does conditions of care at petitioner Pennhurst State School
not vindicate the supreme authority of federal law. and Hospital, a Pennsylvania institution for the care of
When a federal court instructs state officials on how to the mentally retarded. See Pennhurst State School and
conform their conduct to state law, this conflicts Hospital v. Halderman, 451 U. S. 1 (1981). Although the
directly with the principles of federalism that underlie litigation's history is set forth in detail in our prior
the Eleventh Amendment. opinion, it is necessary for purposes of this decision to
review that history.
After concluding that the large size of Pennhurst On remand, the Court of Appeals affirmed its prior
prevented it from providing the necessary habilitation judgment in its entirety. It determined that, in a recent
in the least restrictive environment, the court ordered decision, the Supreme Court of Pennsylvania had
that "immediate steps be taken to remove the retarded "spoken definitively" in holding that the MH/MR Act
residents from Pennhurst." Petitioners were ordered "to required the State to adopt the "least restrictive
provide suitable community living arrangements" for environment" approach for the care of the mentally
the class members, id. at 1326, and the court retarded. The Court of Appeals concluded that this
appointed a Special Master "with the power and duty state statute fully supported its prior judgment, and
to plan, organize, direct, supervise and monitor the therefore did not reach the remaining issues of federal
implementation of this and any further Orders of the law. It also rejected petitioners' argument that the
Court." Eleventh Amendment barred a federal court from
considering this pendent state law claim. The court
noted that the Amendment did not bar a federal court
The Court of Appeals for the Third Circuit affirmed most from granting prospective injunctive relief against state
of the District Court's judgment. It agreed that officials on the basis of federal claims, and concluded
respondents had a right to habilitation in the least that the same result obtained with respect to a
restrictive environment, but it grounded this right pendent state law claim. It reasoned that,
solely on the "bill of rights" provision in the because Siler v. Louisville & Nashville R. Co., an
Developmentally Disabled Assistance and Bill of Rights important case in the development of the doctrine of
Act. The court did not consider the constitutional issues pendent jurisdiction, also involved state officials, "there
or 504 of the Rehabilitation Act, and while it affirmed cannot be . . . an Eleventh Amendment exception to
the District Court's holding that the MH/MR Act that rule." Finally, the court rejected petitioners'
provides a right to adequate habilitation, the court did argument that it should have abstained from deciding
not decide whether that state right encompassed a the state law claim under principles of comity, see
right to treatment in the least restrictive setting. id. at 659-660, and refused to consider petitioners'
objections to the District Court's use of a Special
On the question of remedy, the Court of Appeals Master, see id. at 651, and n. 10. Three judges
affirmed except as to the District Court's order that dissented in part, arguing that, under principles of
Pennhurst be closed. The court observed that some federalism and comity, the establishment of a Special
patients would be unable to adjust to life outside an Master to supervise compliance was an abuse of
institution, and it determined that none of the legal discretion. See id. at 662 (Seitz, C.J., joined by Hunter,
provisions relied on by respondents precluded J., dissenting in part); ibid. (Garth, J., concurring in part
institutionalization. . It therefore remanded for and dissenting as to relief). (Aldisert, J., concurring)
"individual determinations by the [District Court], or by (seriously questioning the propriety of the order
the Special Master, as to the appropriateness of an appointing the Special Master, but concluding that a
improved Pennhurst for each such patient," guided by retroactive reversal of that order would be
"a presumption in favor of placing individuals in meaningless).
[community living arrangements]."
We granted certiorari, and now reverse and remand.
On remand, the District Court established detailed
procedures for determining the proper residential II
placement for each patient. A team consisting of the
patient, his parents or guardian, and his case manager
must establish an individual habilitation plan providing Petitioners raise three challenges to the judgment of
the Court of Appeals: (i) the Eleventh Amendment
prohibited the District Court from ordering state required an unequivocal expression of congressional
officials to conform their conduct to state law; (ii) the intent to "overturn the constitutionally guaranteed
doctrine of comity prohibited the District Court from immunity of the several States." (holding that 42
issuing its injunctive relief; and (iii) the District Court U.S.C. 1983 does not override States' Eleventh
abused its discretion in appointing two Masters to Amendment immunity). Our reluctance to infer that a
supervise the decisions of state officials in State's immunity from suit in the federal courts has
implementing state law. We need not reach the latter been negated stems from recognition of the vital role
two issues, for we find the Eleventh Amendment of the doctrine of sovereign immunity in our federal
challenge dispositive. system. A State's constitutional interest in immunity
encompasses not merely whether it may be sued,
A but where it may be sued. As JUSTICE MARSHALL well
has noted,
A sovereign's immunity may be waived, and the Court The Court has recognized an important exception to
consistently has held that a State may consent to suit this general rule: a suit challenging the
against it in federal court. We have insisted, however, constitutionality of a state official's action is not one
that the State's consent be unequivocally expressed. against the State. This was the holding in Ex parte
Similarly, although Congress has power with respect to Young, in which a federal court enjoined the Attorney
the rights protected by the Fourteenth Amendment to General of the State of Minnesota from bringing suit to
abrogate the Eleventh Amendment immunity, we have enforce a state statute that allegedly violated the
Fourteenth Amendment. This Court held that the unconstitutional conduct constitutes state action under
Eleventh Amendment did not prohibit issuance of this the Fourteenth Amendment, but not the Eleventh
injunction. The theory of the case was that an Amendment. Nonetheless, the Young doctrine has
unconstitutional enactment is "void," and therefore been accepted as necessary to permit the federal
does not "impart to [the officer] any immunity from courts to vindicate federal rights and hold state
responsibility to the supreme authority of the United officials responsible to "the supreme authority of the
States." Since the State could not authorize the action, United States.". As JUSTICE BRENNAN has observed,
the officer was "stripped of his official or representative
character and [was] subjected in his person to the "Ex parte Young was the culmination of efforts by this
consequences of his individual conduct." Court to harmonize the principles of the Eleventh
Amendment with the effective supremacy of rights and
While the rule permitting suits alleging conduct powers secured elsewhere in the Constitution."
contrary to "the supreme authority of the United
States" has survived, the theory of Young has not been Our decisions repeatedly have emphasized that
provided an expansive interpretation. Thus, in Edelman the Young doctrine rests on the need to promote the
v. Jordan, the Court emphasized that the Eleventh vindication of federal rights.
Amendment bars some forms of injunctive relief
against state officials for violation of federal law. In
particular, Edelman held that, when a plaintiff sues a The Court also has recognized, however, that the need
state official alleging a violation of federal law, the to promote the supremacy of federal law must be
federal court may award an injunction that governs the accommodated to the constitutional immunity of the
official's future conduct, but not one that awards States. This is the significance of Edelman v. Jordan,
retroactive monetary relief. Under the theory supra. We recognized that the prospective relief
of Young, such a suit would not be one against the authorized by Young "has permitted the Civil War
State, since the federal law allegation would strip the Amendments to the Constitution to serve as a sword,
state officer of his official authority. Nevertheless, rather than merely a shield, for those whom they were
retroactive relief was barred by the Eleventh designed to protect."
Amendment.
But we declined to extend the fiction of Young to
III encompass retroactive relief, for to do so would
effectively eliminate the constitutional immunity of the
States. Accordingly, we concluded that, although the
With these principles in mind, we now turn to the difference between permissible and impermissible
question whether the claim that petitioners violated relief "will not in many instances be that between day
state law in carrying out their official duties at and night," an award of retroactive relief necessarily
Pennhurst is one against the State, and therefore
barred by the Eleventh Amendment. Respondents
advance two principal arguments in support of the "'fall[s] afoul of the Eleventh Amendment if that basic
judgment below. First, they contend that, under the constitutional provision is to be conceived of as having
doctrine of Edelman v. Jordan, supra, the suit is not any present force.'", In sum, Edelman's distinction
against the State because the courts below ordered between prospective and retroactive relief fulfills the
only prospective injunctive relief. Second, they assert underlying purpose of Ex parte Young, while at the
that the state law claim properly was decided under same time preserving to an important degree the
the doctrine of pendent jurisdiction. Respondents rely constitutional immunity of the States.
on decisions of this Court awarding relief against state
officials on the basis of a pendent state law claim. This need to reconcile competing interests is wholly
absent, however, when a plaintiff alleges that a state
We first address the contention that respondents' state official has violated state law. In such a case, the entire
law claim is not barred by the Eleventh Amendment basis for the doctrine
because it seeks only prospective relief as defined of Young and Edelman disappears. A federal court's
in Edelman v. Jordan, supra. The Court of Appeals held grant of relief against state officials on the basis of
that, if the judgment below rested on federal law, it state law, whether prospective or retroactive, does not
could be entered against petitioner state officials under vindicate the supreme authority of federal law. On the
the doctrine established in Edelman and Young even contrary, it is difficult to think of a greater intrusion on
though the prospective financial burden was state sovereignty than when a federal court instructs
substantial and ongoing. The court assumed, and state officials on how to conform their conduct to state
respondents assert, that this reasoning applies as well law. Such a result conflicts directly with the principles
when the official acts in violation of state law. This of federalism that underlie the Eleventh Amendment.
argument misconstrues the basis of the doctrine We conclude that Young and Edelman are inapplicable
established in Young and Edelman. in a suit against state officials on the basis of state law.
This Court long has held generally that, when a federal "[W]hen questions of jurisdiction have been passed on
court obtains jurisdiction over a federal claim, it may in prior decisions sub silentio, this Court has never
adjudicate other related claims over which the court considered itself bound when a subsequent case finally
otherwise would not have jurisdiction. The Court also brings the jurisdictional issue before us."
has held that a federal court may resolve a case solely
on the basis of a pendent state law claim, and that, in
fact, the court usually should do so in order to avoid We therefore view the question as an open one.
federal constitutional questions,
As noted, the implicit view of these cases seems to
have been that, once jurisdiction is established on the
basis of a federal question, no further Eleventh
Amendment inquiry is necessary with respect to other
claims raised in the case. This is an erroneous view,
and contrary to the principles established in our
Eleventh Amendment decisions. "The Eleventh
Amendment is an explicit limitation of the judicial
power of the United States." It deprives a federal court
of power to decide certain claims against States that litigants to split causes of action between state and
otherwise would be within the scope of Art. III's grant federal courts. They also contend that the policy of
of jurisdiction. For example, if a lawsuit against state avoiding unnecessary constitutional decisions will be
officials under 42 U.S.C. 1983 alleges a constitutional contravened if plaintiffs choose to forgo their state law
claim, the federal court is barred from awarding claims and sue only in federal court or, alternatively,
damages against the state treasury even though the that the policy of Ex parte Young will be hindered if
claim arises under the Constitution. Similarly, if a plaintiffs choose to forgo their right to a federal forum
1983 action alleging a constitutional claim is brought and bring all of their claims in state court.
directly against a State, the Eleventh Amendment bars
a federal court from granting any relief on that claim. It may be that applying the Eleventh Amendment to
The Amendment thus is a specific constitutional bar pendent claims results in federal claims being brought
against hearing even federal claims that otherwise in state court, or in bifurcation of claims. That is not
would be within the jurisdiction of the federal courts. uncommon in this area. Under Edelman v. Jordan,
This constitutional bar applies to pendent claims as supra, a suit against state officials for retroactive
well. As noted above, pendent jurisdiction is a judge- monetary relief, whether based on federal or state law,
made doctrine of expediency and efficiency derived must be brought in state court. Challenges to the
from the general Art. III language conferring power to validity of state tax systems under 42 U.S.C. 1983
hear all "cases" arising under federal law or between also must be brought in state court. Under the
diverse parties. (terming pendent jurisdiction "a abstention doctrine, unclear issues of state law
doctrine of discretion"). The Eleventh Amendment commonly are split off and referred to the state courts.
should not be construed to apply with less force to this
implied form of jurisdiction than it does to the explicitly
granted power to hear federal claims. The history of In any case, the answer to respondents' assertions is
the adoption and development of the that such considerations of policy cannot override the
Amendment, confirms that it is an independent constitutional limitation on the authority of the federal
limitation on all exercises of Art. III power: judiciary to adjudicate suits against a State.
("Considerations of convenience open no avenue of
escape from the [Amendment's] restriction"). That a
"the entire judicial power granted by the Constitution litigant's choice of forum is reduced "has long been
does not embrace authority to entertain a suit brought understood to be a part of the tension inherent in our
by private parties against a State without consent system of federalism." (MARSHALL, J., concurring in
given," result).
I fully agree with JUSTICE STEVENS' dissent. This remarkable result is the product of an equally
Nevertheless, I write separately to explain that, in view remarkable misapplication of the ancient doctrine of
of my continued belief that the Eleventh Amendment sovereign immunity. In a completely unprecedented
"bars federal court suits against States only by citizens holding, today the Court concludes that Pennsylvania's
of other States," Yeomans v. Kentucky, 423 U.S. 983, sovereign immunity prevents a federal court from
984 (1975) (BRENNAN, J., dissenting), I would hold that enjoining the conduct that Pennsylvania itself has
petitioners are not entitled to invoke the protections of prohibited. No rational view of the sovereign immunity
that Amendment in this federal court suit by citizens of of the States supports this result. To the contrary, the
Pennsylvania. question whether a federal court may award injunctive
relief on the basis of state law has been answered
affirmatively by this Court many times in the past. Yet
(BRENNAN, J., dissenting); In my view, Hans v. the Court repudiates at least 28 cases, spanning well
Louisiana, upon which the Court today relies, over a century of this Court's jurisprudence,
recognized that the Eleventh Amendment, by its terms, proclaiming instead that federal courts have no power
erects a limited constitutional barrier prohibiting suits to enforce the will of the States by enjoining conduct
against States by citizens of another State; the because it violates state law. This new pronouncement
decision, however, "accords to nonconsenting States will require the federal courts to decide federal
only a nonconstitutional immunity from suit by its own constitutional questions despite the availability of state
citizens." Employees v. Missouri Dept. of Public Health law grounds for decision, a result inimical to sound
and Welfare. For scholarly discussions supporting this principles of judicial restraint. Nothing in the Eleventh
view. The Eleventh Amendment and Other Sovereign Amendment, the conception of state sovereignty it
Immunity Doctrines: Part One. To the extent that such embodies, or the history of this institution requires or
nonconstitutional sovereign immunity may apply to justifies such a perverse result.
petitioners, I agree with JUSTICE STEVENS that, since
petitioners' conduct was prohibited by state law, the
protections of sovereign immunity do not extend to I
them.
The conduct of petitioners that the Court attributes to
JUSTICE STEVENS, with whom JUSTICE BRENNAN, the State of Pennsylvania in order to find it protected
JUSTICE MARSHALL, and JUSTICE BLACKMUN join, by the Eleventh Amendment is described in detail in
dissenting. the District Court's findings. As noted in our prior
opinion, Pennhurst State School and Hospital v.
Halderman, and by the majority today, those findings
were undisputed:
Thus, the District Court found that petitioners have The Court explained the relationship of these cases to
been operating the Pennhurst facility in a way that is the doctrine of sovereign immunity.
forbidden by state law, by federal statute, and by the
Federal Constitution. The en banc Court of Appeals for "[I]mmunity from suit is a high attribute of sovereignty
the Third Circuit unanimously concluded that state law -- a prerogative of the State itself -- which cannot be
provided a clear and adequate basis for upholding the availed of by public agents when sued for their own
torts. The Eleventh Amendment was not intended to to the rights and property of the plaintiff, or make such
afford them freedom from liability in any case where, administration of the statute an illegal burden and
under color of their office, they have injured one of the exaction upon the plaintiff."
State's citizens. To grant them such immunity would be
to create a privileged class free from liability for Ibid. This Court agreed. It noted that the complaint
wrongs inflicted or injuries threatened. . . ." alleged action "in dereliction of duties enjoined by the
statutes of the State," and concluded that it was
". . . Besides, neither a State nor an individual can "manifest from this summary of the allegations of the
confer upon an agent authority to commit a tort so as bill that this is not a suit against the State." Id. at 209
to excuse the perpetrator. In such cases, the law of U. S. 490. [Footnote 2/11]
agency has no application -- the wrongdoer is treated
as a principal and individually liable for the damages Finally, in Greene v. Louisville & Interurban R. Co., 244
inflicted and subject to injunction against the U. S. 499 (1917), and its companion cases, Louisville &
commission of acts causing irreparable injury." Nashville R. Co. v. Greene, 244 U. S. 522 (1917); Illinois
Central R. Co. v. Greene, 244 U. S. 555 (1917), the
The principles that were decisive in these cases are not plaintiffs challenged the conduct of state officials under
confined to actions under state tort law. They also both federal and state law. The Court, citing, inter alia,
apply to claims that state officers have violated state Young and Clemson, held that the Eleventh
statutes. In Johnson v. Lankford, the Court reversed Amendment did not bar injunctive relief on the basis of
the dismissal of an action against the bank state law, noting that the plaintiffs' federal claim was
commissioner of Oklahoma and his surety to recover sufficiently substantial to justify the exercise of
damages for the loss of plaintiff's bank deposit, pendent jurisdiction over plaintiffs' state law claims,
allegedly caused by the commissioner's failure to and that, since violations of federal and state law had
safeguard the business and assets of the bank in been alleged, it was appropriate for the federal court to
negligent or willful disregard of his duties under issue injunctive relief on the basis of state law without
applicable state statutes. The Court explained that the reaching the federal claims, despite the strictures of
action was not one against the State. the Eleventh Amendment. In short, the Greene Court
approved of precisely the methodology employed by
"To answer it otherwise would be to assert, we think, the Court of Appeals in this case.
that whatever an officer does, even in contravention of
the laws of the State, is state action, identifies him with None of these cases contains only "implicit" or sub
it and makes the redress sought against him a claim silentio holdings; all of them explicitly consider and
against the State, and therefore prohibited by the reject the claim that the Eleventh Amendment
Eleventh Amendment. Surely an officer of a State may prohibits federal courts from issuing injunctive relief
be delinquent without involving the State in based on state law. There is therefore no basis for the
delinquency, indeed, may injure the State by majority's assertion that the issue presented by this
delinquency as well as some resident of the State, and case is an open one.
be amenable to both."
The Court tries to explain away these cases by arguing
Similarly, in Rolston v. Missouri Fund Commissioners, that the applicable state statutes gave petitioners such
the Court rejected the argument that a suit to enjoin a "broad discretion" over Pennhurst that their actions
state officer to comply with state law violated the were not ultra vires. The Court, however, does not
Eleventh Amendment. The Court wrote: "Here the suit dispute the Court of Appeals' conclusion that these
is to get a state officer to do what a statute requires of state statutes gave petitioners no discretion
him. The litigation is with the officer, not the state." whatsoever to disregard their duties with respect to
institutionalization of the retarded as they did.
Significantly, this rule was expressly reaffirmed in a Petitioners acted outside of their lawful discretion
case decided by this Court in the same Term as Ex every bit as much as did the government officials in
parte Young and published in the same volume of the the cases I have discussed, which hold that, when an
United States Reports. official commits an act prohibited by law, he acts
beyond his authority and is not protected by sovereign
immunity. After all, it is only common sense to
The appellants in Scully v. Bird, ] brought a diversity conclude that States do not authorize their officers to
suit seeking injunctive relief against the dairy and food violate their legal duties.
commissioner of the State of Michigan, on the ground
that, "under cover of his office," he had maliciously
engaged in a course of conduct designed to ruin The Court also relies heavily on the fact that the
plaintiffs' business in the State. The Circuit Court District Court found petitioners immune from damages
dismissed the complaint on Eleventh Amendment liability because they "acted in the utmost good
grounds. On appeal, the plaintiffs contended that the faith . . . within the sphere of their official
Eleventh Amendment responsibilities,'" (emphasis in original) (quoting 446
F.Supp. at 1324). This confuses two distinct concepts.
An official can act in good faith, and therefore be
"does not apply where a suit is brought against immune from damages liability, despite the fact that
defendants who, claiming to act as officers of the he has done that which the law prohibits, a point
State, and under color of a statute which is valid and recognized as recently as Harlow v. Fitzgerald.
constitutional, but wrongfully administered by them, Nevertheless, good faith immunity from damages
commit, or threaten to commit, acts of wrong or injury liability is irrelevant to the availability of injunctive
relief. The state officials acted in nothing less than be sued. However, common law courts, in applying the
good faith and within the sphere of their official doctrine, traditionally distinguished between the King
responsibilities in asserting Florida's claim to the and his agents, on the theory that the King would
treasure in Treasure Salvors; the same can be said for never authorize unlawful conduct, and that therefore
the bank commissioner's actions in safeguarding bank the unlawful acts of the King's officers ought not to be
deposits challenged in Johnson v. Lankford, the fund treated as acts of the sovereign. See 1 W. Blackstone,
commissioner's decision to sell property mortgaged to Commentaries *244. As early as the 15th century,
the State challenged in Rolston, and the state food and Holdsworth writes, servants of the King were held liable
dairy commissioner's decision to prosecute the for their unlawful acts. See 3 W. Holdsworth, A History
appellant for violating the state food impurity Act of English Law 388 (1903). During the 17th century,
challenged in Scully, to give just a few examples. Yet in this rule of law was used extensively to curb the King's
each of these cases, the state officers' conduct was authority. The King's officers "could do wrong, and if
enjoined. Greene makes this point perfectly clear. they committed wrongs, whether in the course of their
There state officers did nothing more than carry out employment or not, they could be made legally liable.
responsibilities clearly assigned to them by a statute. The command or instruction of the king could not
Their conduct was nevertheless enjoined because this protect them. If the king really had given such
Court held that their conduct violated the State commands or instructions, he must have been
Constitution, despite the fact that their reliance on a deceived."
statute made it perfectly clear that their conduct was
not only in good faith, but reasonable. Until today, the In one famous case, it was held that, although process
rule has been simple: conduct that exceeds the scope would not issue against the sovereign himself, it could
of an official's lawful discretion is not conduct the issue against his officers. "[F]or the warrant of no man,
sovereign has authorized, and hence is subject to not even of the King himself, can excuse the doing of
injunction. [Footnote 2/16] Whether that conduct also an illegal act." By the 18th century, this rule of law
gives rise to damages liability is an entirely separate was unquestioned.
question.
In light of the preceding, it should come as no surprise Following the two-track analysis of Larson, the cases
that there is absolutely no authority for the majority's considering the question whether the state official is
position that the rule of Young is inapplicable to entitled to the sovereign's immunity can be grouped
violations of state law. The only cases the majority into two categories. In cases like Larson, Malone v.
cites, for the proposition that Young is limited to the Bowdoin, and Florida Dept. of State v. Treasure
vindication of federal law do not consider the question Salvors, Inc., which usually involve the State
whether Young permits injunctive relief on the basis of functioning in its proprietary capacity, the ultra
state law -- in each of the cases, the question was vires issue can be resolved solely by reference to the
neither presented, briefed, argued, nor decided. It is law of agency. Since there is no specific limitation on
curious, to say the least, that the majority disapproves the powers of the officers other than the general
of reliance on cases in which the issue we face today limitations on their authority, the only question that
was decided sub silentio, yet it is willing to rely on need be asked is whether they have acted completely
cases in which the issue was not decided at all. In fact, beyond their authority. But when the State has placed
not only is there no precedent for the majority's specific limitations on the manner in which state
officials may perform their duties, as it often does in within his authority but in a manner contrary to state
regulatory or other administrative contexts such as statutes was not barred because the Eleventh
were considered in Scully v. Bird, and Johnson v. Amendment prohibits suits against States; it does not
Lankford, the ultra vires inquiry also involves the bar suits against state officials for actions not
question whether the officials acted in a way that state permitted by the State under its own law. The
law forbids. No sovereign would authorize its officials sovereign could not and would not authorize its officers
to violate its own law, and if the official does so, to violate its own law; hence an action against a state
then Larson indicates that his conduct is ultra officer seeking redress for conduct not permitted by
vires, and not protected by sovereign immunity. state law is a suit against the officer, not the
sovereign. Ex parte Young concluded in as explicit a
Larson confirms that the Court's disposition of this case fashion as possible that unconstitutional action by
in 1981 -- ordering the Court of Appeals to consider state officials is not action by the State even if it
respondents' state law claims -- was fully harmonious purports to be authorized by state law, because the
with established sovereign immunity principles. The Federal Constitution strikes down the state law
jurisdiction of the federal court was established by a shield. In the tort cases, if the plaintiff proves his case,
federal claim; the Court of Appeals therefore had there is by definition no state law defense to shield the
jurisdiction to resolve the case and to grant injunctive defendant. Similarly, when the state officer violates a
relief on either federal or state grounds. Respondents state statute, the sovereign has by definition erected
pleaded a specific statutory limitation on the way in no shield against liability. These precedents make clear
which petitioners were entitled to run Pennhurst. The that there is no foundation for the contention that the
District Court and the Court of Appeals have both majority embraces -- that Ex parte Young authorizes
found that petitioners operated Pennhurst in a way injunctive relief against state officials only on the basis
that the sovereign has forbidden. Specifically, both of federal law. To the contrary, Young is as clear as a
courts concluded that petitioners placed residents in bell: the Eleventh Amendment does not apply where
Pennhurst without any consideration at all of the there is no state law shield. That simple principle
limitations on institutional confinement that are found should control this case.
in state law, and that they failed to create community
living programs that are mandated by state law. In IV
short, there can be no dispute that petitioners ran
Pennhurst in a way that the sovereign had forbidden. The majority's decision in this case is especially unwise
Under the second track of the Larson analysis, in that it overrules a long line of cases in order to reach
petitioners were acting ultra vires because they were a result that is at odds with the usual practices of this
acting in a way that the sovereign, by statute, had Court. In one of the most respected opinions ever
forbidden. written by a Member of this Court, Justice Brandeis
wrote:
Petitioners readily concede, both in their brief and at
oral argument, that the Eleventh Amendment does not "The Court [has] developed, for its own governance in
bar a suit against state officers who have acted ultra the cases confessedly within its jurisdiction, a series of
vires. The majority makes a similar concession. Yet rules under which it has avoided passing upon a large
both ignore the fact that the cases, and most part of all the constitutional questions pressed upon it
especially Larson, set out a two-step analysis for ultra for decision. They are:"
vires conduct -- conduct that is completely beyond the
scope of the officer's authority, or conduct that the
sovereign has forbidden. In fact, the majority goes so "* * * *"
far as to quote the passage from Larson indicating that
a state official acts ultra vires when he completely ". . . The Court will not pass upon a constitutional
lacks power delegated from the State, ante at 465 U. S. question although properly presented by the record, if
101, n. 11. That quotation ignores sentences there is also present some other ground upon which
immediately preceding and following the quoted the case may be disposed of. This rule has found most
passage stating in terms that, where an official violates varied application. Thus, if a case can be decided on
a statutory prohibition, he acts ultra vires and is not either of two grounds, one involving a constitutional
protected by sovereign immunity. This omission is question, the other a question of statutory construction
understandable, since petitioners' conduct in this case or general law, the Court will decide only the latter.
clearly falls into the category of conduct the sovereign
has specifically forbidden by statute. Petitioners were
told by Pennsylvania how to run Pennhurst, and there The Siler case, cited with approval by Justice Brandeis
is no dispute that they disobeyed their instructions. Yet in Ashwander, employed a remarkably similar approach
without explanation, the Court repudiates the two- to that used by the Court of Appeals in this case. A
track analysis of Larson and holds that sovereign privately owned railroad corporation brought suit
immunity extends to conduct the sovereign has against the members of the railroad commission of
statutorily prohibited. Thus, contrary to the Court's Kentucky to enjoin the enforcement of a rate schedule
assertion, Larson is in conflict with the result reached promulgated by the commission. The Federal Circuit
today. Court found that the schedule violated the plaintiff's
federal constitutional rights, and granted relief.
In fact, in this very case, we applied the Siler rule by One basic fact underlies this case: far from immunizing
remanding the case to the Court of Appeals with petitioners' conduct, the State of Pennsylvania
explicit instructions to consider whether respondents prohibited it. Respondents do not complain about the
were entitled to relief under state law. conduct of the State of Pennsylvania -- it is
Pennsylvania's commands which they seek to enforce.
Respondents seek only to have Pennhurst run the way
Not only does the Siler rule have an impressive Pennsylvania envisioned that it be run. Until today, the
historical pedigree, but it is also strongly supported by Court understood that the Eleventh Amendment does
the interest in avoiding duplicative litigation and the not shield the conduct of state officers which has been
unnecessary decision of federal constitutional prohibited by their sovereign.
questions.
Throughout its history, this Court has derived strength
from institutional self-discipline. Adherence to settled
doctrine is presumptively the correct course.
Departures are, of course, occasionally required by
changes in the fabric of our society. When a court,
rather than a legislature, initiates such a departure, it
has a special obligation to explain and to justify the
new course on which it has embarked. Today, however,
the Court casts aside well-settled respected doctrine
that plainly commands affirmance of the Court of
Appeals -- the doctrine of the law of the case, the
doctrine of stare decisis (the Court repudiates at least
28 cases) the doctrine of sovereign immunity, the
doctrine of pendent jurisdiction, and the doctrine of
judicial restraint. No sound reason justifies the further
prolongation of this litigation or this Court's voyage I respectfully dissent.
into the sea of undisciplined lawmaking.