APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

[307] Kenneth J. Mullane argued the cause and filed a brief for appellant.

Albert B. Maginnes argued the cause for the Central Hanover Bank & Trust Co., appellee. With him on the brief was J. Quincy Hunsicker, 3rd.

James N. Vaughan submitted on brief for Vaughan, appellee.

Peter Keber and C. Alexander Capron filed a brief for the New York State Bankers Association, as amicus curiae, urging affirmance.

MR. JUSTICE JACKSON delivered the opinion of the Court.

This controversy questions the constitutional sufficiency of notice to notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that by allowance of the account beneficiaries were deprived of property without due process of law. 299 N. Y. 697, 87 N. E. 2d 73. The case is here on appeal under 28 U. S. C. § 1257.

Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads have made administration of small trusts undesirable to corporate trustees. In order that donors and testators of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and some [308] thirty states other than New York have permitted pooling small trust estates into one fund for investment administration.^[1] The income, capital gains, losses and expenses of the collective trust are shared by the constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of management can be extended to those whose capital standing alone would not obtain such advantage.

Statutory authorization for the establishment of such common trust funds is provided in the New York Banking Law, § 100-c (c. 687, L. 1937, as amended by c. 602, L. 1943 and c. 158, L. 1944). Under this Act a trust company may, with approval of the State Banking Board, establish a common fund and, within prescribed limits, [309] invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive management and control is in the trust company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have ownership in any particular asset or investment of this common fund. The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate. Provisions are made for accounting twelve to fifteen months after the establishment of a fund and triennially thereafter. The decree in each such judicial settlement of accounts is made binding and conclusive as to any matter set forth in the account upon everyone having any interest in the common fund or in any participating estate, trust or fund.

In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance with these provisions, and in March, 1947, it petitioned the Surrogate's Court for settlement of its first account as common trustee. During the accounting period a total of 113 trusts, approximately half inter vivos and half testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars. The record does not show the number or residence of the beneficiaries, but they were many and it is clear that some of them were not residents of the State of New York.

The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict compliance with the minimum requirements of N. Y. Banking Law § 100-c (12): "After filing such petition [for judicial settlement of its account] the petitioner shall cause to be issued by the court in which the petition is filed and shall publish not less than once in each week [310] for four successive weeks in a newspaper to be designated by the court a notice or citation addressed generally without naming them to all parties interested in such common trust fund and in such estates, trusts or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set forth in said petition and without setting forth the residence of any such decedent or donor of any such estate, trust or fund." Thus the only notice required, and the only one given, was by newspaper publication setting forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds.

At the time the first investment in the common fund was made on behalf of each participating estate, however, the trust company, pursuant to the requirements of § 100-c (9), had notified by mail each person of full age and sound mind whose name and address were then known to it and who was "entitled to share in the income therefrom. . . [or] . . . who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice." Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and to the judicial settlement of common trust fund accounts.

Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to § 100-c (12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund; and appellee Vaughan was appointed to represent those similarly interested in the principal. There were no other appearances on behalf of any one interested in either interest or principal.

[311] Appellant appeared specially, objecting that notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the Fourteenth Amendment, and therefore that the court was without jurisdiction to render a final and binding decree. Appellant's objections were entertained and overruled, the Surrogate holding that the notice required and given was sufficient. 75 N. Y. S. 2d 397. A final decree accepting the accounts has been entered, affirmed by the Appellate Division of the Supreme Court, 275 App. Div. 769, 88 N. Y. S. 2d 907, and by the Court of Appeals of the State of New York. 299 N. Y. 697, 87 N. E. 2d 73.

The effect of this decree, as held below, is to settle "all questions respecting the management of the common fund." We understand that every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree. See Matter of Hoaglund, 194 Misc. 803, 811-812, 74 N. Y. S. 2d 156, 164, aff'd 272 App. Div. 1040, 74 N. Y. S. 2d 911, aff'd 297 N. Y. 920, 79 N. E. 2d 746; Matter of Bank of New York, 189 Misc. 459, 470, 67 N. Y. S. 2d 444, 453; Matter of Security Trust Co. of Rochester, id. 748, 760, 70 N. Y. S. 2d 260, 271; Matter of Continental Bank & Trust Co., id. 795, 797, 67 N. Y. S. 2d 806, 807-808.

We are met at the outset with a challenge to the power of the State—the right of its courts to adjudicate at all as against those beneficiaries who reside without the State of New York. It is contended that the proceeding is one in personam in that the decree affects neither title to nor possession of any res, but adjudges only personal rights of the beneficiaries to surcharge their trustee for negligence or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer v. Neff, 95 U. S. 714, the Surrogate [312] is without jurisdiction as to nonresidents upon whom personal service of process was not made.

Distinctions between actions in rem and those in personam are ancient and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own. Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of Roman Law and Their Relation to Modern Law, 298. The legal recognition and rise in economic importance of incorporeal or intangible forms of property have upset the ancient simplicity of property law and the clarity of its distinctions, while new forms of proceedings have confused the old procedural classification. American courts have sometimes classed certain actions as in rem because personal service of process was not required, and at other times have held personal service of process not required because the action was in rem. See cases collected in Freeman on Judgments, §§ 1517 et seq. (5th ed.).

Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or more indefinitely quasi in rem, or more vaguely still, "in the nature of a proceeding in rem." It is not readily apparent how the courts of New York did or would classify the present proceeding, which has some characteristics and is wanting in some features of proceedings both in rem and in personam. But in any event we think that the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state. Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power of the State to resort to constructive service in this proceeding [313] upon how its courts or this Court may regard this historic antithesis. It is sufficient to observe that, whatever the technical definition of its chosen procedure, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard.

Quite different from the question of a state's power to discharge trustees is that of the opportunity it must give beneficiaries to contest. Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

In two ways this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one in which they may be deprived of property rights and hence notice and hearing must measure up to the standards of due process.

Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries to a final settlement can be served only if interests or claims of individuals who are outside of the State can somehow be determined. A construction of the Due Process Clause which [314] would place impossible or impractical obstacles in the way could not be justified.

Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385, 394. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.

The Court has not committed itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized or what test it must meet. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. No decision constitutes a controlling or even a very illuminating precedent for the case before us. But a few general principles stand out in the books.

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U. S. 457; Grannis v. Ordean, 234 U. S. 385; Priest v. Las Vegas, 232 U. S. 604; Roller v. Holly, 176 U. S. 398. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U. S. 71. But if with due regard for the practicalities and peculiarities of the case these conditions [315] are reasonably met, the constitutional requirements are satisfied. "The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals." American Land Co. v. Zeiss, 219 U. S. 47, 67; and see Blinn v. Nelson, 222 U. S. 1, 7.

But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U. S. 352, with Wuchter v. Pizzutti, 276 U. S. 13, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.

It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice, we are unable to regard this as more than a feint.

[316] Nor is publication here reinforced by steps likely to attract the parties' attention to the proceeding. It is true that publication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, cf. Anderson National Bank v. Luckett, 321 U. S. 233; Security Savings Bank v. California, 263 U. S. 282, or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U. S. 241; Huling v. Kaw Valley R. Co., 130 U. S. 559. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, "It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it."

In the case before us there is, of course, no abandonment. On the other hand these beneficiaries do have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who in the accounting becomes their adversary. Their trustee is released from giving notice of jeopardy, and no one else is expected to do so. Not even the special guardian is required or apparently expected to communicate with his ward and client, and, of course, if such a duty were merely transferred [317] from the trustee to the guardian, economy would not be served and more likely the cost would be increased.

This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading School District, 198 U. S. 458; Blinn v. Nelson, 222 U. S. 1; and see Jacob v. Roberts, 223 U. S. 261.

Those beneficiaries represented by appellant whose interests or whereabouts could not with due diligence be ascertained come clearly within this category. As to them the statutory notice is sufficient. However great the odds that publication will never reach the eyes of such unknown parties, it is not in the typical case much more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice practicable.

Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. Whatever searches might be required in another situation under ordinary standards of diligence, in view of the character of the proceedings and the nature of the interests here involved we think them unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and extended searches are not required in the [318] name of due process. The expense of keeping informed from day to day of substitutions among even current income beneficiaries and presumptive remaindermen, to say nothing of the far greater number of contingent beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages. These are practical matters in which we should be reluctant to disturb the judgment of the state authorities.

Accordingly we overrule appellant's constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee.

As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and postoffice addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.

The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra. Certainly sending them a copy of the statute months and perhaps years in advance does not answer this purpose. The trustee periodically remits their income to them, and we think that they might reasonably expect that with or apart from their remittances word might come to them personally that steps were being taken affecting their interests.

We need not weigh contentions that a requirement of personal service of citation on even the large number of known resident or nonresident beneficiaries would, by [319] reasons of delay if not of expense, seriously interfere with the proper administration of the fund. Of course personal service even without the jurisdiction of the issuing authority serves the end of actual and personal notice, whatever power of compulsion it might lack. However, no such service is required under the circumstances. This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objection sustained would inure to the benefit of all. We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable. "Now and then an extraordinary case may turn up, but constitutional law like other mortal contrivances has to take some chances, and in the great majority of instances no doubt justice will be done." Blinn v. Nelson, supra, 7.

The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand. However it may have been in former times, the mails today are recognized as an efficient and inexpensive means of communication. Moreover, the fact that the trust company has been able to give mailed notice to known beneficiaries at the time the common trust fund was established is persuasive that postal notification at the time of accounting would not seriously burden the plan.

In some situations the law requires greater precautions in its proceedings than the business world accepts for its own purposes. In few, if any, will it be satisfied with [320] less. Certainly it is instructive, in determining the reasonableness of the impersonal broadcast notification here used, to ask whether it would satisfy a prudent man of business, counting his pennies but finding it in his interest to convey information to many persons whose names and addresses are in his files. We are not satisfied that it would. Publication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by publication that, "Great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact." McDonald v. Mabee, 243 U. S. 90, 91.

We hold that the notice of judicial settlement of accounts required by the New York Banking Law § 100-c (12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

MR. JUSTICE BURTON, dissenting.

These common trusts are available only when the instruments creating the participating trusts permit participation in the common fund. Whether or not further notice to beneficiaries should supplement the notice and representation here provided is properly within the discretion of the State. The Federal Constitution does not require it here.

[1] Ala. Code Ann., 1940, Cum. Supp. 1947, tit. 58, §§ 88 to 103, as amended, Laws 1949, Act 262; Ariz. Code Ann., 1939, Cum. Supp. 1949, §§ 51-1101 to 51-1104; Ark. Stat. Ann. 1947, §§ 58-110 to 58-112; Cal. Bank. Code Ann., Deering, 1949, § 1564; Colo. Stat. Ann., 1935, Cum. Supp. 1947, c. 18, §§ 173 to 178; Conn. Gen. Stat. 1949 Rev., § 5805; Del. Rev. Code, 1935, § 4401, as amended, Laws, 1943, c. 171, Laws 1947, c. 268; (D. C.) 63 Stat. 938; Fla. Stat., 1941, §§ 655.29 to 655.34; Ga. Code Ann., 1937, Cum. Supp. 1947, §§ 109-601 to 109-622; Idaho Code Ann., 1949, Cum. Supp. 1949, §§ 68-701 to 68-703; Ill. Rev. Stat., 1949, c. 16 1/2, §§ 57 to 63; Ind. Stat. Ann., Burns, 1950, §§ 18-2009 to 18-2014; Ky. Rev. Stat., 1948, § 287.230; La. Gen. Stat. Ann., 1939, § 9850.64; Md. Ann. Code Gen. Laws, 1939, Cum. Supp. 1947, art. 11, § 62A; Mass. Ann. Laws, 1933, Cum. Supp. 1949, c. 203A; Mich. Stat. Ann., 1943, §§ 23.1141 to 23.1153; Minn. Stat., 1945, § 48.84, as amended, Laws 1947, c. 234; N. J. Stat. Ann., 1939, Cum. Supp. 1949, §§ 17:9A-36 to 17:9A-46; N. C. Gen. Stat., 1943, §§ 36-47 to 36-52; Ohio Gen. Code Ann. (Page, 1946) §§ 715 to 720, 722; Okla. Stat., 1941, Cum. Supp. 1949, tit. 60, § 162; Pa. Stat. Ann., 1939, Cum. Supp. 1949, tit. 7, §§ 819-1109 to 819-1109d; So. Dak. Laws 1941, c. 20; Tex. Rev. Civ. Stat. Ann., 1939, Cum. Supp. 1949, art. 7425b-48; Vt. Stat., 1947 Rev., § 8873; Va. Code Ann., 1950, §§ 6-569 to 6-576; Wash. Rev. Stat. Ann., Supp. 1943, §§ 3388 to 3388-6; W. Va. Code Ann., 1949, § 4219(1) et seq.; Wis. Stat., 1947, § 223.055.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[162] Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined, post, p. 173.

Allison M. Zieve, by appointment of the Court, 532 U. S. 940, argued the cause for petitioner. With her on the briefs was Alan B. Morrison.

Jeffrey P. Minear argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and William C. Brown.^[1]

[163] Chief Justice Rehnquist delivered the opinion of the Court.

This case concerns the adequacy of the means employed by the Federal Bureau of Investigation (FBI) to provide notice to a federal prisoner of his right to contest the administrative forfeiture of property seized during the execution of a search warrant for the residence where he was arrested.

In April 1986, officers of the FBI arrested petitioner Larry Dean Dusenbery at a house trailer in Atwater, Ohio. Later that day, they obtained and executed a search warrant, seizing drugs, drug paraphernalia, several firearms, a ballistic knife, an automobile registered in the name of petitioner's stepmother, and various other items of personal property. Among these was $21,939 in cash, $394 of which had been found on petitioner's person, $7,500 in the inside pocket of a coat in the dining area and $14,045 in a briefcase found on the floor in the living room.

Two months later, petitioner pleaded guilty in the United States District Court for the Northern District of Ohio to a charge of possession with intent to distribute 813 grams of cocaine in violation of 21 U. S. C. § 841(a)(1) (1988 ed.). He was sentenced to 12 years of imprisonment followed by 6 years of special parole. Two years later, the United States, no longer expecting the firearms and knife to be used as evidence in a future prosecution, and unable to determine their rightful owner, sought and obtained an order from the District Court authorizing the FBI to destroy them. The FBI also began the process of administratively forfeiting the cash and the automobile.

At this time, designated agents of the FBI were allowed to dispose of property seized pursuant to the Controlled Substances Act, 84 Stat. 1242, 21 U. S. C. § 801 et seq. (1988 ed.), without initiating judicial proceedings if the property's value did not exceed $100,000, and if no person claimed an interest [164] in the property within 20 days after the Government published notice of its intention to forfeit and sell or otherwise dispose of it. § 881(a)(6) (subjecting to forfeiture all proceeds traceable to an unlawful exchange for a controlled substance and all moneys, negotiable instruments, and securities traceable to such an exchange); § 881(d) (providing that laws relating to summary and judicial forfeiture for violation of the customs laws apply to controlled substance forfeitures); 19 U. S. C. §§ 1607-1609 (1988 ed.) (setting forth customs law requirements for summary forfeitures).

To effect such a forfeiture, the statute required the agency to send written notice of the seizure together with information on the applicable forfeiture procedures to each party who appeared to have an interest in the property. § 1607(a). It also required the publication for at least three successive weeks of a similar notice in a newspaper of general circulation in the judicial district in which the forfeiture proceeding was brought. Ibid.; 21 CFR § 1316.75 (1988). The FBI sent letters of its intention to forfeit the cash by certified mail addressed to petitioner care of the Federal Correctional Institution (FCI) in Milan, Michigan, where he was then incarcerated; to the address of the residence where petitioner was arrested; and to an address in Randolph, Ohio, the town where petitioner's mother lived. App. 21-23. It placed the requisite legal notice in three consecutive Sunday editions of the Cleveland Plain Dealer. Id., at 24-30. Similar practices were followed with respect to the proposed forfeiture of the car. Brief for Petitioner 3. The FBI received no response to these notices within the time allotted, and so declared the items administratively forfeited. Ibid.; App. 15. An FBI agent turned over the cash to the United States Marshals Service on December 13, 1988. Id., at 16-17.

Nearly five years later, petitioner moved in the District Court pursuant to Rule 41(e) of the Federal Rules of Criminal [165] Procedure^[2] seeking return of all the property and funds seized in his criminal case. The United States responded that all of the items of petitioner's property that were not used in his drug business had been returned to him and that other items seized had long since been forfeited to the Government. The District Court denied the motion, reasoning that any challenge to the forfeiture proceedings should have been brought in a civil action, not as a motion ancillary to petitioner's now-closed criminal case. Case No. 5:95-CV-1872 (ND Ohio, Oct. 5, 1995).

The Court of Appeals for the Sixth Circuit vacated the District Court's judgment and remanded for further proceedings. Judgt. order reported at 97 F. 3d 1451 (1996), App. 31. The Court of Appeals agreed that petitioner could not pursue his claim through a Rule 41(e) motion since the criminal proceedings against him had been completed. It held that the District Court abused its discretion, however, by not construing the motion as a civil complaint seeking equitable relief for a due process challenge to adequacy of the notice of the administrative forfeiture.

Following remand, the District Court entered an order allowing discovery and subsequently presided over a telephone deposition of James Lawson, an Inmate Systems Officer who began to work in the mailroom at FCI Milan early in 1988 and who had submitted an affidavit in the case. Lawson testified that he signed the certified mail receipt for the FBI's notice to petitioner regarding the cash. App. 49-50. He also testified about the procedures within FCI Milan for accepting, logging, and delivering certified mail addressed to inmates. Id., at 50. Lawson explained that the [166] procedure would have been for him to log the mail in, for petitioner's "Unit Team" to sign for it, and for it then to be given to petitioner. Id., at 51. But he said that a paper trail no longer existed because the Bureau of Prisons (BOP) had a policy of holding prison logbooks for only one year after they were closed.^[3]Id., at 51-52.

Both parties moved for summary judgment. The District Court ruled that the Government's sending of notice by certified mail to petitioner's place of incarceration satisfied his due process rights as to the cash. Case No. 5:95-CV-1872 (ND Ohio, Jan. 19, 1999). The Court of Appeals affirmed. 223 F. 3d 422 (CA6 2000). Citing Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950), it held that the Government's notice of the cash forfeiture comported with due process even in the absence of proof that the mail actually reached petitioner. 223 F. 3d, at 424.

Because Courts of Appeals have reached differing conclusions about what the Due Process Clause requires of the United States when it seeks to provide notice to a federal inmate of its intention to forfeit property in which the inmate appears to have an interest,^[4] we granted certiorari to [167] consider the adequacy of the FBI's notice to petitioner of its intended forfeiture of the cash. 531 U. S. 1189 (2001). We now affirm the judgment below.

The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without "due process of law." From these "cryptic and abstract words," Mullane, supra, at 313, we have determined that individuals whose property interests are at stake are entitled to "notice and an opportunity to be heard." United States v. James Daniel Good Real Property, 510 U. S. 43, 48 (1993).

Petitioner urges that, in analyzing his due process claim, we follow the approach articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). Brief for Petitioner 12; Reply Brief for Petitioner 7. There we spoke of a balancing of three factors: (1) the private interest that will be affected by the official action, (2) a cost-benefit analysis of the risks of an erroneous deprivation versus the probable value of additional safeguards, and (3) the Government's interest, including the function involved and any fiscal and administrative burdens associated with using different procedural safeguards. 424 U. S., at 335. The United States, on the other hand, urges us to apply the method set forth in Mullane, supra, which espouses a more straightforward test of reasonableness under the circumstances. Brief for United States 27.

We think Mullane supplies the appropriate analytical framework. The Mathews balancing test was first conceived in the context of a due process challenge to the adequacy of administrative procedures used to terminate Social Security disability benefits. Although we have since invoked Mathews to evaluate due process claims in other [168] contexts, see Medina v. California, 505 U. S. 437, 444 (1992) (citing cases), we have never viewed Mathews as announcing an all-embracing test for deciding due process claims. Since Mullane was decided, we have regularly turned to it when confronted with questions regarding the adequacy of the method used to give notice. See, e. g., New York City v. New York, N. H. & H. R. Co., 344 U. S. 293, 296 (1953); Walker v. City of Hutchinson, 352 U. S. 112, 115 (1956); Schroeder v. City of New York, 371 U. S. 208, 210 (1962); Robinson v. Hanrahan, 409 U. S. 38, 39 (1972) (per curiam); Greene v. Lindsey, 456 U. S. 444, 448 (1982); Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 797 (1983); Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 484 (1988). We see no reason to depart from this well-settled practice.

Mullane itself involved a due process challenge to the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under state law. A trustee of such a common trust fund sought a judicial decree settling its accounts as against all parties having an interest in the fund. The only notice of the application for this decree was by court-ordered publication in a newspaper for four successive weeks. 339 U. S., at 309-310. We held that this notice was constitutionally defective as to known persons whose whereabouts were also known, because it was not "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id., at 314, 319; see also id., at 315 ("The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it").

Was the notice in this case "reasonably calculated under all the circumstances" to apprise petitioner of the pendency of the cash forfeiture? The Government here carried its burden of showing the following procedures had been used to give notice. The FBI sent certified mail addressed to [169] petitioner at the correctional facility where he was incarcerated. At that facility, prison mailroom staff traveled to the city post office every day to obtain all the mail for the institution, including inmate mail. App. 36. The staff signed for all certified mail before leaving the post office. Once the mail was transported back to the facility, certified mail was entered in a logbook maintained in the mailroom. Id., at 37. A member of the inmate's Unit Team then signed for the certified mail to acknowledge its receipt before removing it from the mailroom, and either a Unit Team member or another staff member distributed the mail to the inmate during the institution's "mail call." Id., at 37, 51.

Petitioner does not seriously contest the FBI's use of the postal service to send its certified letter to him, a method our cases have recognized as adequate for known addressees when we have found notice by publication insufficient.^[5] Tr. of Oral Arg. 11 ("This case is not really a mailed notice case because the procedures that are inadequate are the procedures that happened after the mailing"). Instead, he argues that the notice was insufficient because due process generally requires "actual notice" to interested parties prior to forfeiture, which he takes to mean actual receipt of notice.^[6] Brief for Petitioner 8, 15, 18-19; see also Tr. of Oral Arg. 23. [170] For this proposition he cites Mennonite Bd. of Missions, 462 U. S., at 796-797. But the only sentence in Mennonite arguably supporting petitioner's view appears in a footnote. That sentence reads: "Our cases have required the State to make efforts to provide actual notice to all interested parties comparable to the efforts that were previously required only in in personam actions." Id., at 797, n. 3. It does not say that the State must provide actual notice, but that it must attempt to provide actual notice. Since Mennonite concluded that mailed notice of a pending tax sale to a mortgagee of record was constitutionally sufficient, id., at 799, the sentence is at best inconclusive dicta for the view petitioner espouses.

We note that none of our cases cited by either party has required actual notice in proceedings such as this. Instead, we have allowed the Government to defend the "reasonableness and hence the constitutional validity of any chosen method . . . on the ground that it is in itself reasonably certain to inform those affected." Mullane, 339 U. S., at 315.

Petitioner argues that because he was housed in a federal prison at the time of the forfeiture, the FBI could have made arrangements with the BOP to assure the delivery of the notice in question to him. Brief for Petitioner 17. But it is hard to see why such a principle would not also apply, for example, to members of the Armed Forces both in this country and overseas. Undoubtedly the Government could make a special effort in any case (just as it did in the movie "Saving Private Ryan") to assure that a particular piece of mail reaches a particular individual who is in one way or another in the custody of the Government. It could, for example, have allowed petitioner to make an escorted visit to the post office himself in order to sign for his letter. But the Due Process Clause does not require such heroic efforts by the Government; it requires only that the Government's effort be "reasonably calculated" to apprise a party of the pendency of the action; "`[t]he criterion is not the possibility of conceivable [171] injury but the just and reasonable character of the requirements . . . .' " Mullane, supra, at 315.

Nor does the Due Process Clause require the Government to substitute the procedures proposed by petitioner for those in place at FCI Milan in 1988. See Brief for Petitioner 17 (suggesting that the Government could send the notice to a prison official with a request that a prison employee watch the prisoner open the notice, cosign a receipt, and mail the signed paper back to the agency from which it came). The suggested procedures would work primarily to bolster the Government's ability to establish that the prisoner actually received notice of the forfeiture, a problem petitioner perceives to be the FCI Milan's procedures' primary defect. See Tr. of Oral Arg. 15 (explaining that the problem is that "[t]he procedure doesn't require verification of delivery"). But as we have noted above, our cases have never required actual notice. The facts of the present case, moreover, illustrate the difficulty with such a requirement. The letter in question was sent to petitioner in 1988, but the claim of improper notice was first asserted in 1993. What might be reasonably fresh in the minds of all parties had the question arisen contemporaneously will surely be stale five years later. The issue would often turn on disputed testimony as to whether the letter was in fact delivered to petitioner. The title to property should not depend on such vagaries.

Justice Ginsburg's dissent does not contend, as petitioner does, that due process could be satisfied in this case only with actual notice. It makes an alternative argument that the FBI's notice was constitutionally flawed because it was "`substantially less likely to bring home notice' than a feasible substitute," post, at 174 (quoting Mullane, supra, at 314-315)—namely, the methods used currently by the BOP, which generally require an inmate to sign a logbook acknowledging delivery, see post, at 180, 181-182 (describing current BOP procedures and noting the practicability of BOP Unit Team member's "linger[ing]" a little longer to secure an inmate's [172] signature). Just how requiring the end recipient to sign for a piece of mail substantially improves the reliability of the delivery procedures leading up to that person's receipt, Justice Ginsburg's dissent does not persuasively explain. Nor is there any probative evidence to this effect in the record.^[7]

Even if one accepts that the BOP's current procedures improve delivery to some degree, our cases have never held that improvements in the reliability of new procedures necessarily demonstrate the infirmity of those that were replaced. Other areas of the law, moreover, have for strong policy reasons resisted rules crediting the notion that, "`because the world gets wiser as it gets older, therefore it was foolish before.' " Advisory Committee's Notes on Fed. Rule Evid. 407, 28 U. S. C. App., p. 864 (1994 ed.) (quoting Hart v. Lancashire & Yorkshire R. Co., 21 Law Times Rep. (n. s.) 261, 263 (1869),and explaining that Rule 407's prohibition against use of subsequent remedial measures to prove fault attempts to avoid discouraging persons from taking steps to further safety). In this case, we believe the same principle supports our conclusion that the Government ought not be penalized and told to "try harder," post, at 180, simply because the BOP has since upgraded its policies.

Here, the use of the mail addressed to petitioner at the penitentiary was clearly acceptable for much the same reason we have approved mailed notice in the past. Short of allowing the prisoner to go to the post office himself, the remaining portion of the delivery would necessarily depend on a system in effect within the prison itself relying on prison staff. We think the FBI's use of the system described [173] in detail above was "reasonably calculated, under all the circumstances, to apprise [petitioner] of the pendency of the action." Mullane, 339 U. S., at 314. Due process requires no more.

The judgment of the Court of Appeals is Affirmed.

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

"`The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U. S. 385, 394 [(1914)]. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). Today's decision diminishes the safeguard of notice, affording an opportunity to be heard, before one is deprived of property. As adequate to notify prisoners that the Government seeks forfeiture of their property, the Court condones a procedure too lax to reliably ensure that a prisoner will receive a legal notice sent to him. The Court does so despite the Government's total control of a prison inmate's location, and the evident feasibility of tightening the notice procedure "as [would] one desirous of actually informing [the prisoner]." Id., at 315. Because the Court, without warrant in fact or law, approves a procedure "less likely to bring home notice" than a feasible alternative, ibid., I dissent.

I

The Court correctly identifies the foundational case on reasonable notice as a due process requirement, Mullane v. Central Hanover Bank & Trust Co., and the core instruction: "[D]eprivation of . . . property by adjudication [must] be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id., at 313. Further, the Court recognizes that petitioner Dusenbery's complaint does not [174] rest on the Government's use of the postal service to dispatch, from the Federal Bureau of Investigation (FBI) to the Federal Correctional Institution (FCI) in Milan, Michigan, notice of an impending forfeiture. Ante, at 169. Were this case about the adequacy of the transmission of information from the FBI to the FCI, swift summary judgment for the Government, I agree, would be in order. But the case we confront is not about notice to the prison, the warden, or the prison mailroom personnel. It is about the adequacy of notice to an individual held in the Government's custody, a prisoner whose location the Government at all times knows and tightly controls.

What process did the Government provide for getting the FBI's forfeiture notice from the FCI's mailroom to prisoner Dusenbery's cell? On that key transmission the record is bare. It contains no statement by FCI Milan's warden concerning any set of safeguards routinely employed. The Government presented only the affidavit and telephone deposition of James Curtis Lawson, an "Inmate Systems Officer" assigned to FCI Milan's mailroom. App. 36-37, 46-53. On the mailroom to prisoner transmission, Lawson said simply this: "The [Housing] Unit Team member or a correctional staff member will [after signing the mailroom logbook] distribute the mail to the inmates during the institution's mail call." App. 37. Lawson did not know whether notice was in fact delivered to Dusenbery. Nor would he have such knowledge or information regarding any other prisoner. As Lawson clarified on deposition, he was not acquainted with particular practices or systems governing mail once it left the mailroom, because that was not "pertinent to [his] department." App. 52. According to Lawson, "[t]hat would be case workers' responsibility," ibid.; but no caseworker filled in the evidentiary gap.

Was the prison to prisoner mode of transmission described by Officer Lawson "substantially less likely to bring home notice" than a feasible substitute that would place no "impractical [175] obstacles" in the Government's way? Mullane, 339 U. S., at 314-315. The answer, in my judgment, is certainly yes. Before detailing why that is my view, I will examine what the Court does not elaborate: In full scope, what does Mullane, the foundational case, teach about the nexus to the forum and notice to interested persons necessary to make an adjudication fair and workable, and thus compatible with due process?^[8]

II

Mullane was a proceeding in which the trustee of a common trust fund sought from a New York Surrogate Court an order settling all questions concerning the management of the common fund during a statutorily specified accounting period.^[9] Many of the beneficiaries resided outside New York. Could a New York court adjudicate such a case despite the large numbers of nonresidents affected? And if a New York court could entertain the case, would notice by publication, for which the New York statute provided, suffice to inform beneficiaries of the proceeding? The Court recognized that these were separate questions calling for discrete inquiries.

New York had jurisdiction to adjudicate despite the dispersion of trust beneficiaries among several States, the Court explained, because the trust "exist[ed] by the grace of [New York's] laws and [was] administered under the supervision of its courts." Id., at 313. If New York could not take [176] hold of the case, no other State would be better situated to do so. Without a forum for periodic settlement of the trustee's accounts, the common fund device would be unworkable. Under the circumstances, New York's interest "in providing means [periodically] to close trusts [of the kind involved in Mullane was] . . . so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants." Ibid.

Having thus settled the question of the nexus between the forum and the controversy necessary to establish jurisdiction to adjudicate, the Court turned to the means by which potentially affected persons must be apprised of the proceeding: "Quite different from the question of a state's power to discharge trustees," the Court began, "is that of the [full] opportunity it must give beneficiaries to contest." Ibid.

"Personal service of written notice," the Court acknowledged, "is the classic form of notice always adequate in any type of proceeding." Ibid. But that classic form, the Court next developed, "has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents." Id., at 314. For beneficiaries whose interests or addresses were unknown to the trustee, notice by publication would do, faute de mieux. Id., at 318. But "[a]s to known present beneficiaries of known place of residence," Mullane instructed, notice by publication would not do. Ibid. Personal service on "the large number of known resident or nonresident beneficiaries," however, would "seriously interfere with the proper administration of the fund." Id., at 318-319 (delay as well as expense rendered such service impractical). For that group, the Court indicated, "ordinary mail to the record addresses," which might be sent with periodic income remittances, was the minimal due process requirement. Id., at 318. The risk that notice would not reach even all known beneficiaries, the Court reasoned, was justifiable, for the common trust

[177] "presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objection sustained would inure to the benefit of all." Id., at 319.

In a series of cases following Mullane, the Court similarly condemned notice by publication or posting as not reasonably calculated to inform persons with known interests in a proceeding. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 (1988) (notice by publication inadequate as to estate creditors whose identities were known or ascertainable by reasonably diligent efforts); Mennonite Bd. of Missions v. Adams, 462 U. S. 791 (1983) (notice by publication and posting inadequate to inform real property mortgagee of a proceeding to sell the mortgaged property for nonpayment of taxes); Greene v. Lindsey, 456 U. S. 444 (1982) (posting summons on door of a tenant's apartment provided inadequate notice of eviction proceedings); Schroeder v. City of New York, 371 U. S. 208 (1962) (publication plus signs posted on trees inadequate to notify property owners of condemnation proceedings); Walker v. City of Hutchinson, 352 U. S. 112 (1956) (publication as sole notice to property owners inadequate to inform them of condemnation proceedings). In these cases, the Court identified mail service as a satisfactory supplement to statutory provisions for publication or posting. But the decisions, it bears note, do not bless mail notice as an adequate-in-all-circumstances substitute for personal service. They home in on the particular proceedings at issue and do not imply that in the mine-run civil action, a plaintiff may dispense with the straightforward, effective steps required to secure proof of service or waiver of formal service. See Fed. Rules Civ. Proc. 4(d), 4(l ).

[178] III

Returning to the instant case and the question Mullane identified as pivotal: Was the mail delivery procedure at FCI Milan "substantially less likely to bring home notice [to prison inmates]" than a "feasible . . . substitut[e]"? 339 U. S., at 315; cf. Mennonite Bd., 462 U. S., at 803 (O'Connor, J., dissenting) (ability of "members of a particular class . . . to safeguard their interests . . . must be taken into account when we consider the `totality of the circumstances,' as required by Mullane "). Prisoner Dusenbery's situation differs dramatically from that of persons for whom we suggested ordinary mail service, without more, would suffice. Those differences, I am persuaded, are dispositive.

A beneficiary not in receipt of actual notice in Mullane would nevertheless be protected, in significant measure, by beneficiaries who did receive notice and might have advanced objections shared by the large class of similarly situated persons. Moreover, the Surrogate's Court was obliged to review the trustee's accounting before approving it. In contrast, Dusenbery's alleged ownership interest stands alone. No others are similarly situated. Dusenbery claims that the money the FBI seized at his home was not traceable to an unlawful exchange for a controlled substance. See 21 U. S. C. § 881(a)(6) (1988 ed.). Absent notice of the forfeiture proceeding, Dusenbery had no opportunity to present that claim before an impartial forum. See 19 U. S. C. § 1609 (1988 ed.) (if no claim is filed within the prescribed time, the Government shall declare the property forfeited).

Nor can any undue hardship justify a less than careful endeavor actually to inform Dusenbery that his property is the subject of an impending forfeiture. The agency responsible for giving notice of the forfeiture, here, the FBI, is part of the same Government as the prisoner's custodian, the Bureau of Prisons (BOP). As the Second Circuit observed, "[w]hen [a federal] investigating agency [seeks] a prisoner's cooperation in testifying against some important wrongdoer, [179] it has no difficulty delivering the message in a manner that insures receipt." Weng v. United States, 137 F. 3d 709, 715 (1998). Similarly, the federal forfeiting agency should encounter no difficulty in "secur[ing] the [BOP's] cooperation in assuring that the notice will be delivered to the [prisoner] and that a reliable record of the delivery will be created." Ibid.

A further factor counsels care to inform a prisoner that his Government is proceeding against him or his property. A prisoner receives his mail only through the combined good offices of two bureaucracies which he can neither monitor nor control: The postal service must move the mail from the sender to the prison, and the prison must then move the mail from the prison gates to the prisoner's hands. That the first system can be relied upon does not imply that the second is acceptable. See United States v. One Toshiba Color Television, 213 F. 3d 147, 154 (CA3 2000); accord, Weng, 137 F. 3d, at 715; cf. Houston v. Lack, 487 U. S. 266, 271 (1988) (Court recognized that "the pro se prisoner has no choice but to entrust the forwarding of [mail] to prison authorities whom he cannot control or supervise and who may have every incentive to delay"; Court therefore held that pro se prisoner's notice of appeal must be regarded as "filed" when delivered to prison authorities for mailing). In the cases in which we indicated that mail notice would be sufficient, by contrast, receipt hinged only upon the dependability of the postal service, "upon which prudent men will ordinarily rely in the conduct of important affairs." Greene, 456 U. S., at 455; see also Mullane, 339 U. S., at 319 ("[T]he mails today are recognized as an efficient and inexpensive means of communication.");United States Postal Service, 2000 Comprehensive Statement on Postal Operations 91 (Table 5.1) (on-time delivery rate of first class mail between 87% and 94%).

The majority asserts that "[t]he Government here carried its burden of showing the .. .procedures . .. used to give notice." Ante, at 168. As to the prison to prisoner transmission, [180] that assertion is groundless, for the Government carried no burden whatever. It introduced nothing to show the reasonableness or reliability of the mailroom to cell delivery at FCI Milan at the time of the forfeiture in question. See supra, at 174.

Beyond doubt, the Government can try harder, without undue inconvenience or expense. Indeed, it now does so: As the Government informed the Court on brief, prison employees currently "must not only record the receipt of the certified mail and its distribution, but the prisoner himself must sign a log book acknowledging delivery." Brief for United States 24 (citing BOP Program Statement 5800.10.409, 5800.10.409A (Nov. 3, 1995)). If a prisoner refuses to sign, a prison officer must document that refusal. BOP Operations Memorandum 035-99 (5800), p. 2 (July 19, 1999). The Government noted additionally that administrative forfeiture notices, along with "appropriately marked congressional, judicial, law enforcement, and attorney correspondence," are now marked "special mail," to be "opened only in the inmate's presence." Brief for United States 29, n. 19 (citing 28 CFR § 540.12(c) (2001) and BOP Program Statement 5800.10.35).

The Government, of course, should not be "penalized" for upgrading its policies. See ante, at 172. It would be improper to brand the BOP's 1988 procedures deficient simply because those procedures have since been improved. Nevertheless, the new rules show that substantial improvements in reliability could have been had, in 1988 and years before, at minimal expense and inconvenience. Nor will it do to label these efforts a matter of executive grace. They undeniably provide a "feasible" means "substantially [more] likely to bring home notice" than FCI Milan's prior uncertain mailroom to prison cell practice. See Mullane, 339 U. S., at 315.^[10]

[181] The Government would assign to Dusenbery the burden of showing that the mail delivery system inside the prison was unreliable at the relevant time. Brief for United States 23-24. The Court shies away from explicit agreement, for that is not what Mullane instructs. Rather, the party obliged to give notice—here, the Government—must adopt a method "reasonably calculated" to reach the intended recipient. See 339 U. S., at 318; One Toshiba Color Television, 213 F. 3d, at 155 (If the Government "chooses to rely on less than actual notice, it bears the burden of demonstrating the existence of procedures that are reasonably calculated to ensure that [actual] notice will be given."). The Government, staying "within the limits of practicability," Mullane, 339 U. S., at 318, now conforms to the foundational precedent; its prior practice fell short of the requirement that "[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," id., at 315.^[11]

The majority is surely correct that the Due Process Clause does not require "heroic efforts" to ensure actual notice. [182] Ante, at 170. But the BOP's recently installed proof of delivery procedures require no convoys of armored vehicles to "escor[t]" prisoners to the post office. Ibid. There is little danger that Hollywood will confuse the rescuers of Private Ryan, see ibid., with a BOP Unit Team member, putatively delivering certified mail to inmates in his charge at least since 1988, instructed a decade later to linger for the additional moments required to secure for each delivery a signature in a logbook.^[12] The Due Process Clause requires nothing of the Government in cases of this genre beyond the practicable, efficient, and inexpensive reform the BOP has already adopted.

Notice consistent with due process "will vary with circumstances and conditions." Mennonite Bd., 462 U. S., at 802 (O'Connor, J., dissenting) (emphasis deleted) (internal quotation marks omitted). Given the circumstances and conditions of imprisonment, the Government must have cause to be confident that legal notices to prisoners will be delivered inside the prison with the care "one desirous of actually informing the [addressee] might reasonably adopt to accomplish it." Mullane, 339 U. S., at 315. The uncertain mailroom to cell delivery system formerly in place at FCI Milan [183] fell short of that mark. Greater reliability could be achieved with modest effort. Because the Court finds that small but significant effort undue, I dissent.

[1] Julia M. Carpenter filed a brief for the DKT Liberty Project as amicus curiae urging reversal.

[2] Rule 41(e) provides that "[a] person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property."

[3] In a letter received before argument, the Solicitor General advised us that the BOP now requires the retention of certified mail logbooks for 11 years in accordance with its implementation of Government record retention policies under the Federal Records Act of 1950, 44 U. S. C. § 2901 et seq. (1994 ed.).

[4] See, e. g., Whiting v. United States, 231 F. 3d 70, 76 (CA1 2000) (due process satisfied by Government's sending certified letter to inmate at his prison facility absent proof that mail delivery was unreliable); Yeung Mung Weng v. United States, 137 F. 3d 709, 715 (CA2 1998) (mailed notice to custodial institution inadequate unless in fact delivered to the intended recipient); United States v. One Toshiba Color Television, 213 F. 3d 147, 155 (CA3 2000) (en banc) (Government bears burden of demonstrating the existence of procedures that are reasonably calculated to ensure that actual notice will be given); United States v. Minor, 228 F. 3d 352, 358 (CA4 2000) (endorsing One Toshiba Color Television, supra ); United States v. Woodall, 12 F. 3d 791, 794-795 (CA8 1993) (requiring actual notice to defendant or his counsel of agency's intent to forfeit property); United States v. Real Property, 135 F. 3d 1312, 1315 (CA9 1998) (adequate to send summons by certified mail to jail with procedures for distributing mail directly to the inmate); United States v. Clark, 84 F. 3d 378, 381 (CA10 1996) (sufficient to send certified mail to prisoner at jail where he was located).

[5] E. g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 319 (1950) (noting that the mails "are recognized as an efficient and inexpensive means of communication"); Walker v. City of Hutchinson, 352 U. S. 112, 116 (1956); Schroeder v. City of New York, 371 U. S. 208, 214 (1962); Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 798 (1983); Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 490 (1988).

[6] The Government's brief notes that the term "actual notice" is not free from ambiguity as used by this Court in cases such as Tulsa, supra, and by other courts. Brief for United States 20, n. 12 (stating that the term has been used both to distinguish notice by mail from notice by publication and to refer to the actual receipt of the notice by the intended recipient); see also Black's Law Dictionary 1087 (7th ed. 1999) (defining "actual notice" as "[n]otice given directly to, or received personally by, a party"). We think the best way to avoid this confusion is to equate, as petitioner does, "actual notice" with "receipt of notice."

[7] To try to show that there is a "significant risk," Brief for Petitioner 14, that notice mailed to a prison will not reach an inmate, petitioner has cited several cases from various Courts of Appeals involving post forfeiture challenges. As the Government argues, these cases, like petitioner's own suit here, involve only claims that notice was not received, not findings of nonreceipt.

[8] In briefing this case, the Government questioned whether it is "permissible for courts to approach the due process issue here as a matter of what is'fair' or workable." Brief for United States 31. Any doubt on that score should be dispelled. Mullane carefully explained that the due process requirement at stake is not merely permissive, it demands that both fairness and practicality be taken into account. See 339 U. S., at 313-320.

[9] The decree sought by the Mullane trustee would terminate "every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting." Id., at 311.

[10] The majority suggests that it is necessary to "explain" how "requiring the end recipient to sign for a piece of mail substantially improves the reliability of the delivery procedures leading up to that person's receipt." Ante, at 172. The signature procedure now in place offers the FBI the same security that motivates any other postal customer to pay a surcharge for certified mail, return receipt requested: A sender who knows whether delivery to the addressee was accomplished can try again if the first effort fails. Moreover, if forfeiture cannot be had absent a logbook signature or documentation that the addressee refused to sign, the BOP will have every incentive to make sure its internal procedures guarantee reliable delivery. The BOP's incentive fades if all that is required is a general statement by a mailroom employee that it is prison policy to deliver inmate mail. See supra, at 174.

[11] The majority's concern that a more demanding proof of notice requirement would undermine finality, ante, at 171, is baffling: Disputes over whether notice was sent or received would be diminished, not encouraged, by requiring proof of notice by signature. Under the regime the majority tolerates, notice may be delivered or not depending on the diligence or carelessness of the prison administration and the reliability or neglect of its Unit Teams. "The title to property should not depend on such vagaries." Ibid.

[12] The majority worries that a firmer rule on delivery might "also apply, for example, to members of the Armed Forces both in this country and overseas." Ante, at 170. Of course, many active-duty military personnel, both on and off military bases, maintain personal mailboxes and interact with local postal authorities as does any other resident. The majority is right that other members of the Armed Forces—soldiers in combat, for example—are in respects material to this case similarly situated to Dusenbery: Government authority determines their whereabouts and restricts their movements, and that same authority receives their mail at a central delivery location and must make arrangements to distribute it further. It is at least doubtful, however, that a soldier, oblivious to a pending action, would return home to find her property irrevocably forfeited to her Government because she had the misfortune to be in a combat zone too long.

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

[445] William L. Hoge III argued the cause and filed a brief for appellants.

Robert Frederick Smith argued the cause for appellees. With him on the brief was Barry L. Master.^[1]

David M. Madway filed a brief for the National Housing Law Project as amicus curiae.

JUSTICE BRENNAN delivered the opinion of the Court.

A Kentucky statute provides that in forcible entry or detainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant's apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment.

[446] I

Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky. Rev. Stat. § 454.030 (1975), which states:

"If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court."

In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant's apartment.^[2] Appellees claim never to have seen these posted summonses; they state that they did not learn of the [447] eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed.

Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U. S. C. § 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs.

On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in Weber v. Grand Lodge of Kentucky, F. & A. M., 169 F. 522 (1909), the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to § 454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that "conditions have changed since the decision in Weber . . . and. . . that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants," App. 41-42, the court nevertheless concluded that the procedures employed did not deny due [448] process in light of the fact "that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises," id., at 42.

The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. 649 F. 2d 425 (1981). Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as Pennoyer v. Neff, 95 U. S. 714 (1878); Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559 (1889); Arndt v. Griggs, 134 U. S. 316 (1890); Ballard v. Hunter, 204 U. S. 241 (1907); and Longyear v. Toolan, 209 U. S. 414 (1908), and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe Co. v. Washington, 326 U. S. 310 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U. S. 186 (1977), as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by § 454.030, the Court of Appeals noted that while there may have been "a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting `is not reasonably calculated to reach those who could easily be informed by other means at hand,' " 649 F. 2d, at 428, quoting Mullane, supra, at 319.^[3] The court held, therefore, that the notice provided [449] pursuant to § 454.030 was constitutionally deficient. We noted probable jurisdiction, 454 U. S. 938 (1981), and now affirm.

II

A

"The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385, 394 (1914). And the "right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest," Mullane, supra, at 314. Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. McDonald v. Mabee, 243 U. S. 90, 92 (1917). Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service. But we have also clearly recognized that the Due Process Clause does prescribe a constitutional minimum: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the [450] pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U. S., at 314 (emphasis added). It is against this standard that we evaluate the procedures employed in this case.

B

Appellants argue that because a forcible entry and detainer action is an action in rem, notice by posting is ipso facto constitutionally adequate. Appellees concede that posting has traditionally been deemed appropriate for in rem proceedings, but argue that detainer actions can now encompass more than the simple issue of the tenant's continued right to possession, and that they therefore require the more exacting forms of notice customarily provided for proceedings in personam. Appellants counter by conceding that if the particular detainer proceeding was one in which the landlord sought to recover past due rent, personal service would be required by Kentucky law, but argue that such claims are unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession. Tr. of Oral Arg. 19-21.

As in Mullane, we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in personam. 339 U. S., at 312. See Shaffer v. Heitner, supra, at 206. That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But " `[a]ll proceedings, like all rights, are really against persons.' "^[4] In this case, appellees [451] have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes.^[5] In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice "upon the thing itself."^[6] The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, "its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land Co. v. Hoffman, 268 U. S. 276, 283 (1925).

It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See Mullane, supra, at 316.^[7] The [452] frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests.

The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person's home would, in many [453] or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him.

But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of § 454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were "not infrequently" removed by children or other tenants before they could have their intended effect.^[8] Under these conditions, notice by [454] posting on the apartment door cannot be considered a "reliable means of acquainting interested parties of the fact that their rights are before the courts." Mullane, 339 U. S., at 315.

Of course, the reasonableness of the notice provided must be tested with reference to the existence of "feasible and customary" alternatives and supplements to the form of notice chosen. Ibid. In this connection, we reject appellants' characterization of the procedure contemplated by § 454.030 as one in which " `posting' is used as a method of service only as a last resort." Brief for Appellants 7. To be sure, the statute requires the officer serving notice to make a visit to the tenant's home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a "good percentage" of cases,^[9] posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be held constitutionally adequate. Cf. Mullane, 339 U. S., at 317-318.

[455] As noted by the Court of Appeals, and as we noted in Mullane, the mails provide an "efficient and inexpensive means of communication," id., at 319, upon which prudent men will ordinarily rely in the conduct of important affairs, id., at 319-320. Notice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.^[10] Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings. We need not go so far as to insist that in order to "dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required," McDonald v. Mabee, 243 U. S., at 92, in order to recognize that where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State's continued exclusive reliance on an ineffective means of service is not notice "reasonably calculated to reach those who could [456] easily be informed by other means at hand." Mullane, supra, at 319.^[11]

III

We conclude that in failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State has deprived them of property without the due process of law required by the Fourteenth Amendment. The judgment of the Court of Appeals is therefore

Affirmed.

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court's result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.

At a minimum, the Fourteenth Amendment requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). The question before the Court is whether the notice provided by Kentucky's statute meets this standard. In answering that question, the first "circumstances" [457] to be considered are the nature and purpose of the action for which notice is required.

Kentucky's forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky. Rev. Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances call for special procedures:

"There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property." Lindsey v. Normet, 405 U. S. 56, 72-73 (1972).

The means chosen for making service of process, therefore, must be prompt and certain, for otherwise the principal purpose of a forcible entry and detainer action could be thwarted before the judicial proceedings even began.

The Kentucky statute meets this need. It directs the process server to attempt personal service on the tenant at his residence. Ky. Rev. Stat. § 454.030 (1975). If the process server cannot find the tenant on the premises, the statute directs the server to explain and leave a copy of the notice [458] with a family member over the age of 16. Ibid. If both of these attempts fail, Kentucky authorizes the server, as a last resort, to post a copy of the notice in a conspicuous place on the premises. Ibid.

As the Court recognizes, notice procedures like Kentucky's, though "less rigorous" than mandatory personal service, nonetheless "have enjoyed substantial acceptance throughout our legal history." Ante, at 449. The weight of historical precedent is reinforced by the collective wisdom of the legislatures of the at least 11 States authorizing notice in summary eviction proceedings solely by posting or by leaving the notice at the tenant's residence.^[12] The Court itself acknowledges that "posting notice on the door of a person's home would, in many or perhaps most instances, constitute. . . a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him." Ante, at 452-453.

The Court nonetheless rejects these established procedures as unconstitutional, though it does not cite a single case, other than the decision below, supporting its position that notice by posting is constitutionally inadequate in summary eviction proceedings. Instead, the Court relies solely on the deposition testimony of a few Kentucky process servers.

The testimony is hardly compelling. For example, one process server, Mr. S. Carter Bacon, reported having seen children in the Village West housing development pull down posted writs "probably a couple of times." App. 80; App. in No. 79-3477 (CA6), p. 103. The Court neglects to mention, [459] however, that another process server, Mr. Gilbert Brutscher, cast doubt on Mr. Bacon's testimony by stating:

"I had been warned beforehand that, by Mr. Bacon, Carter Bacon, that he suspected — he wasn't certain, but he suspected that on some occasions the Writs had been torn off the doors by kids. This is what he told me. Whether that is true or not, I don't know. And I don't think that he observed that, and the six months I was working at it there was no occasion where I saw anyone tear the Writs off of the door." Id., at 112-113.

The Court also neglects to mention that another process server testified that in order to avoid problems with children, the process servers "always put [the writs] up high. So we never had any problems with that." App. 74. Corroborating this testimony, moreover, is the testimony of yet another process server, who asserted: "we always try to put the paper up above where, a, say a small child can't reach it." App. in No. 79-3477 (CA6), p. 74. This server, asked whether he had "had complaints about small children ripping them off," answered that he had never had a complaint and had never seen a child try to rip a notice off. Ibid.

Plainly, such conflicting testimony falls well short of what this Court should require before rushing to scrap Kentucky's considered legislative judgment that, as a last resort, posted notice is an appropriate form of service of process for forcible entry and detainer actions.

The Court, however, holds that notice via the mails is so far superior to posted notice that the difference is of constitutional dimension.^[13] How the Court reaches this judgment remains [460] a mystery, especially since the Court is unable, on the present record, to evaluate the risks that notice mailed to public housing projects might fail due to loss, misdelivery, lengthy delay, or theft. Furthermore, the advantages of the mails over posting, if any, are far from obvious. It is no secret, after all, that unattended mailboxes are subject to plunder by thieves. Moreover, unlike the use of the mails, posting notice at least gives assurance that the notice has gotten as far as the tenant's door.

In sum, the Court has chosen to overturn Kentucky's procedures on the basis of a wholly inadequate record. In so doing, the Court apparently indulges a presumption that the state legislation challenged here is unconstitutional until proven otherwise. Regrettably, the Court seems to forget that we have long since discarded the concept that "due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely." Ferguson v. Skrupa, 372 U. S. 726, 730 (1963). I respectfully dissent.

[1] Lynn E. Cunningham filed a brief for the Antioch School of Law et al. as amici curiae urging affirmance.

[2]"Posting" refers to the practice of placing the writ on the property by use of a thumbtack, adhesive tape, or other means. App. 74, 77 (deposition of process servers). Appellants describe the usual method of effecting service pursuant to § 454.030 in the following terms:

"The officer of the court who is charged with serving notice in a forcible entry and detainer action, usually a Jefferson County Deputy Sheriff, takes the following steps in notifying a tenant. First, the officer goes to the apartment in an effort to effectuate personal in-hand service. Second, if the named tenant is absent or will not appear at the door, personal in-hand service is made on any member of the tenant's family over sixteen years of age. Finally, if no one answers the door, a copy of the notice is posted on the premises, usually the door." Brief for Appellants 3.

[3] The Court of Appeals concluded that "[r]equiring Kentucky to provide notice by mail when personal service proves infeasible will not be overly burdensome. The cost will be minimal, and the state's conceded interest in providing a summary procedure for settlement of landlord-tenant disputes will not be seriously circumscribed." 649 F. 2d, at 428. The court then noted with approval the provisions of the New York counterpart of § 454.030, which provides that when notice is served by posting, a copy of the petition must be sent by registered or certified mail within a day of the posting. Ibid., citing Velazquez v. Thompson, 451 F. 2d 202, 205 (CA2 1971).

[4] Shaffer v. Heitner, 433 U. S. 186, 207, n. 22 (1977), quoting Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N. E. 812, 814 (Holmes, C. J.), writ of error dism'd, 179 U. S. 405 (1900).

[5] The dissent directs our attention to the "nature and purpose," of Kentucky's forcible entry and detainer action. Post, at 457. Such proceedings are designed to offer an expeditious means of determining who is entitled to retain possession of an apartment. But that hardly explains why we may dispense with the constitutional requirement of adequate notice. After all, detainer proceedings, while in some sense "summary," are proceedings in which issues of fact and law are to be resolved, and important interests in property determined. We can agree with the dissent's observation that the "means chosen for making service of process . . . must be prompt and certain." Ibid. But it is difficult to see how, from the perspective of the landlord, any of the likely supplements to the form of service currently provided under § 454.030 will render the procedure markedly less prompt or certain. More significantly, from the perspective of the tenant, it is difficult to see how a means of serving process that fails to afford actual notice in a "not insubstantial" number of cases can be deemed either prompt or certain.

[6] The Mary, 9 Cranch 126, 144 (1815).

[7] As we noted in Mullane:

"The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, . . . entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. . . . A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, . . . or that he has left some caretaker under a duty to let him know that it is being jeopardized." 339 U. S., at 316.

Of course, the Mullane discussion of the special notice rules with respect to proceedings affecting property ownership focused on the forms of notice that might be appropriate as a supplement to the direct disturbance of the property itself. But where the State has reason to believe the premises to be occupied or under the charge of a caretaker, notice posted on the premises, if sufficiently apparent, is itself a form of disturbance, likely to come to the attention of the occupants or the caretaker.

[8]The depositions before the District Court included the following statements by the process servers:

"The children — we had problems with children. They would take [the writs] off.

"They never took them off when we were present, but we, you know, assume — the Housing Authority told us that they would take them off, so we always put them up high." App. 74.

"Q. Did you ever see kids pulling them off?

"A. Yes.

"Q. You did?

"A. Uh-huh.

"Q. Did you see many?

"A. No, not too many. I did see it in one place over there.

"Q. Where was that?

"A. Village West.

"Q. How many times did you see that happen?

"A. Well, probably a couple of times." Id., at 80.

"Q. . . . Were you aware of there being any problem with children ripping the Writs off?

"A. Oh, we had plenty of trouble.

"Q. You had trouble?

"A. With kids, yeah. Yeah.

"Q. Did you ever see kids ripping them off?

"A. Yeah. I have seen them take them off of the door and I would go back and tell them to put it back. They don't know. They didn't know. They just —

.....

"Q. Were there any particular places where you saw kids ripping them off the doors?

"A. Well most of that was in Village West." Id., at 82.

[9] Id., at 76 (deposition of process server).

[10] The dissent apparently wishes to dispute the District Court's finding that "notices posted on apartment doors are often removed," and further questions our reliance on the observation in Mullane that the mails are a reliable means of communication — in light of its own observation that "unattended mailboxes are subject to plunder." Post, at 460. The dissent misconstrues the constitutional standard. In light of the findings of the courts below, we hold only that posted notice pursuant to § 454.030 is constitutionally inadequate. It is not our responsibility to prescribe the form of service that the Commonwealth should adopt. But even conceding that process served by mail is far from the ideal means of providing the notice the Due Process Clause of the Fourteenth Amendment requires, we have no hesitation in concluding that posted service accompanied by mail service, is constitutionally preferable to posted service alone.

[11] "Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency." 339 U. S., at 318. See Schroeder v. City of New York, 371 U. S. 208, 213 (1962).

[12] See Ala. Code §§ 6-6-332, 35-9-82 (1975); Colo. Rev. Stat. § 13-40-112 (1973); Fla. Stat. § 48.183 (1979); Kan. Stat. Ann. § 61-1805 (1976); Ky. Rev. Stat. § 454.030 (1975); La. Code Civ. Proc. Ann., Art. 4703 (West 1961); Miss. Code Ann. § 89-7-33 (1972); Neb. Rev. Stat. § 25-508 (1979); N. H. Rev. Stat. Ann. §§ 510:2, 540:5 (Supp. 1979); N. C. Gen. Stat. § 42-29 (1976); W. Va. Code § 56-2-1 (1966), W. Va. Rule Civ. Proc. 4(d)(1) (1982).

[13] The Court gives lipservice to the principle that "[i]t is not our responsibility to prescribe the form of service that [Kentucky] should adopt," ante, at 455, n. 9, but then goes on to do just that, first by explaining to the state legislature that, unlike notice by posting, notice by mail "would surely go a long way toward" satisfying the Court, ante, at 455, and then by remarking that, in the Court's view, the combination of posted service and mail service would be "constitutionally preferable" to posted service alone, ante, at 455, n. 9.

[222] Michael T. Kirkpatrick argued the cause for petitioner. With him on the briefs was Brian Wolfman.

Carter G. Phillips argued the cause for respondents. With him on the brief for respondent Commissioner of State Lands was Virginia A. Seitz. A. J. Kelly filed a brief for respondent Flowers.

[223] James A. Feldman argued the cause for the United States as amicus curiae in support of respondents. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Katsas, Deputy Solicitor General Hungar, Michael Jay Singer, and Susan Maxson Lyons.

Chief Justice Roberts delivered the opinion of the Court.

Before a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner "notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). We granted certiorari to determine whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property.

I

In 1967, petitioner Gary Jones purchased a house at 717 North Bryan Street in Little Rock, Arkansas. He lived in the house with his wife until they separated in 1993. Jones then moved into an apartment in Little Rock, and his wife continued to live in the North Bryan Street house. Jones paid his mortgage each month for 30 years, and the mortgage company paid Jones' property taxes. After Jones paid off his mortgage in 1997, the property taxes went unpaid, and the property was certified as delinquent.

In April 2000, respondent Mark Wilcox, the Commissioner of State Lands (Commissioner), attempted to notify Jones of his tax delinquency, and his right to redeem the property, by mailing a certified letter to Jones at the North Bryan Street address. See Ark. Code Ann. § 26-37-301 (1997). The packet of information stated that unless Jones redeemed the property, it would be subject to public sale two years later on April 17, 2002. See ibid. Nobody was home to sign for [224] the letter, and nobody appeared at the post office to retrieve the letter within the next 15 days. The post office returned the unopened packet to the Commissioner marked "`unclaimed.'" Pet. for Cert. 3.

Two years later, and just a few weeks before the public sale, the Commissioner published a notice of public sale in the Arkansas Democrat Gazette. No bids were submitted, which permitted the State to negotiate a private sale of the property. See § 26-37-202(b). Several months later, respondent Linda Flowers submitted a purchase offer. The Commissioner mailed another certified letter to Jones at the North Bryan Street address, attempting to notify him that his house would be sold to Flowers if he did not pay his taxes. Like the first letter, the second was also returned to the Commissioner marked "unclaimed." Pet. for Cert. 3. Flowers purchased the house, which the parties stipulated in the trial court had a fair market value of $80,000, for $21,042.15. Record 224. Immediately after the 30-day period for postsale redemption passed, see § 26-37-202(e), Flowers had an unlawful detainer notice delivered to the property. The notice was served on Jones' daughter, who contacted Jones and notified him of the tax sale. Id., at 11 (Exh. B).

Jones filed a lawsuit in Arkansas state court against the Commissioner and Flowers, alleging that the Commissioner's failure to provide notice of the tax sale and of Jones' right to redeem resulted in the taking of his property without due process. The Commissioner and Flowers moved for summary judgment on the ground that the two unclaimed letters sent by the Commissioner were a constitutionally adequate attempt at notice, and Jones filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the Commissioner and Flowers. App. to Pet. for Cert. 12a-13a. It concluded that the Arkansas tax sale statute, which set forth the notice procedure followed [225] by the Commissioner, complied with constitutional due process requirements.

Jones appealed, and the Arkansas Supreme Court affirmed the trial court's judgment. 359 Ark. 443, 198 S. W. 3d 520 (2004). The court noted our precedent stating that due process does not require actual notice, see Dusenbery v. United States, 534 U. S. 161, 170 (2002), and it held that attempting to provide notice by certified mail satisfied due process in the circumstances presented, 359 Ark., at 453-454, 198 S. W. 3d, at 526-527.

We granted certiorari, 545 U. S. 1165 (2005), to resolve a conflict among the Circuits and State Supreme Courts concerning whether the Due Process Clause requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered. Compare, e. g., Akey v. Clinton County, 375 F. 3d 231, 236 (CA2 2004) ("In light of the notice's return, the County was required to use `reasonably diligent efforts' to ascertain Akey's correct address"), and Kennedy v. Mossafa, 100 N. Y. 2d 1, 9, 789 N. E. 2d 607, 611 (2003) ("[W]e reject the view that the enforcing officer's obligation is always satisfied by sending the notice to the address listed in the tax roll, even where the notice is returned as undeliverable"), with Smith v. Cliffs on the Bay Condominium Assn., 463 Mich. 420, 429, 617 N. W. 2d 536, 541 (2000) (per curiam) ("The fact that one of the mailings was returned by the post office as undeliverable does not impose on the state the obligation to undertake an investigation to see if a new address . . . could be located"). We hold that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. Under the circumstances presented here, additional reasonable steps were available to the State. We therefore reverse the judgment of the Arkansas Supreme Court.

[226] II

A

Due process does not require that a property owner receive actual notice before the government may take his property. Dusenbery, supra, at 170. Rather, we have stated that due process requires the government to provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U. S., at 314. The Commissioner argues that once the State provided notice reasonably calculated to apprise Jones of the impending tax sale by mailing him a certified letter, due process was satisfied. The Arkansas statutory scheme is reasonably calculated to provide notice, the Commissioner continues, because it provides for notice by certified mail to an address that the property owner is responsible for keeping up to date. See Ark. Code Ann. § 26-35-705 (1997). The Commissioner notes this Court's ample precedent condoning notice by mail, see, e. g., Dusenbery, supra, at 169; Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 490 (1988); Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 798 (1983); Mullane, supra, at 318-319, and adds that the Arkansas scheme exceeds constitutional requirements by requiring the Commissioner to use certified mail. Brief for Respondent Commissioner 14-15.

It is true that this Court has deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent. See, e. g., Dusenbery, supra, at 168-169; Mullane, 339 U. S., at 314. In each of these cases, the government attempted to provide notice and heard nothing back indicating that anything had gone awry, and we stated that "[t]he reasonableness and hence the constitutional validity of [the] chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected." Id., at 315; see also Dusenbery, supra, at [227] 170. But we have never addressed whether due process entails further responsibility when the government becomes aware prior to the taking that its attempt at notice has failed. That is a new wrinkle, and we have explained that the "notice required will vary with circumstances and conditions." Walker v. City of Hutchinson, 352 U. S. 112, 115 (1956). The question presented is whether such knowledge on the government's part is a "circumstance and condition" that varies the "notice required."

The Courts of Appeals and State Supreme Courts have addressed this question on frequent occasions, and most have decided that when the government learns its attempt at notice has failed, due process requires the government to do something more before real property may be sold in a tax sale.^[1] See, e. g., Plemons v. Gale, 396 F. 3d 569, 576 (CA4 2005); Akey, supra, at 236; Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 468, 589 S. E. 2d 81, 85 (2003); Kennedy, supra, at 9, 789 N. E. 2d, at 611; Malone v. Robinson, 614 A. 2d 33, 38 (D. C. App. 1992) (per curiam); St. George Antiochian Orthodox Christian Church v. Aggarwal, 326 Md. 90, 103, 603 A. 2d 484, 490 (1992); Wells Fargo Credit Corp. v. Ziegler, 780 P. 2d 703, 705 (Okla. 1989); Rosenberg v. Smidt, 727 P. 2d 778, 780-783 (Alaska 1986); Giacobbi v. Hall, [228] 109 Idaho 293, 297, 707 P. 2d 404, 408 (1985); Tracy v. County of Chester, Tax Claim Bureau, 507 Pa. 288, 296, 489 A. 2d 1334, 1338-1339 (1985). But see Smith, 463 Mich., at 429, 617 N. W. 2d, at 541; Dahn v. Trownsell, 1998 SD 36, ¶ 23, 576 N. W. 2d 535, 541-542; Elizondo v. Read, 588 N. E. 2d 501, 504 (Ind. 1992); Atlantic City v. Block C-11, Lot 11, 74 N. J. 34, 39-40, 376 A. 2d 926, 928 (1977). Many States already require in their statutes that the government do more than simply mail notice to delinquent owners, either at the outset or as a followup measure if initial mailed notice is ineffective.^[2]

[229] In Mullane, we stated that "when notice is a person's due . . . [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," 339 U. S., at 315, and that assessing the adequacy of a particular form of notice requires balancing the "interest of the State" against "the individual interest sought to be protected by the Fourteenth Amendment," id., at 314. Our leading cases on notice have evaluated the adequacy of notice given to beneficiaries of a common trust fund, Mullane, supra; a mortgagee, Mennonite, 462 U. S. 791; owners of seized cash and automobiles, Dusenbery, 534 U. S. 161; Robinson v. Hanrahan, 409 U. S. 38 (1972) (per curiam); creditors of an estate, Tulsa Professional, 485 U. S. 478; and tenants living in public housing, Greene v. Lindsey, 456 U. S. 444 (1982). In this case, we evaluate the adequacy of notice prior to the State extinguishing a property owner's interest in a home.

We do not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed. If the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner's office to prepare a new stack of letters and send them again. No one "desirous of actually informing" the owners would simply shrug his shoulders as the letters disappeared and say "I tried." Failure to follow up would be unreasonable, despite the fact that the letters were reasonably calculated to reach their intended recipients when delivered to the postman.

[230] By the same token, when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. See Small v. United States, 136 F. 3d 1334, 1337 (CADC 1998). This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house. Although the State may have made a reasonable calculation of how to reach Jones, it had good reason to suspect when the notice was returned that Jones was "no better off than if the notice had never been sent." Malone, 614 A. 2d, at 37. Deciding to take no further action is not what someone "desirous of actually informing" Jones would do; such a person would take further reasonable steps if any were available.

In prior cases, we have required the government to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case. In Robinson v. Hanrahan, we held that notice of forfeiture proceedings sent to a vehicle owner's home address was inadequate when the State knew that the property owner was in prison. 409 U. S., at 40. In Covey v. Town of Somers, 351 U. S. 141 (1956), we held that notice of foreclosure by mailing, posting, and publication was inadequate when town officials knew that the property owner was incompetent and without a guardian's protection. Id., at 146-147.

The Commissioner points out that in these cases, the State was aware of such information before it calculated how best to provide notice. But it is difficult to explain why due process would have settled for something less if the government had learned after notice was sent, but before the taking occurred, that the property owner was in prison or was incompetent. Under Robinson and Covey, the government's knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation on the government's part to take additional steps to effect notice. That knowledge was one of the "practicalities and peculiarities of the case," [231] Mullane, supra, at 314-315, that the Court took into account in determining whether constitutional requirements were met. It should similarly be taken into account in assessing the adequacy of notice in this case. The dissent dismisses the State's knowledge that its notice was ineffective as "learned long after the fact," post, at 246, n. 5 (opinion of Thomas, J.), but the notice letter was promptly returned to the State two to three weeks after it was sent, and the Arkansas statutory regime precludes the State from taking the property for two years while the property owner may exercise his right to redeem, see Ark. Code Ann. § 26-37-301 (Supp. 2005).

It is certainly true, as the Commissioner and Solicitor General contend, that the failure of notice in a specific case does not establish the inadequacy of the attempted notice; in that sense, the constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc. But if a feature of the State's chosen procedure is that it promptly provides additional information to the government about the effectiveness of notice, it does not contravene the ex ante principle to consider what the government does with that information in assessing the adequacy of the chosen procedure. After all, the State knew ex ante that it would promptly learn whether its effort to effect notice through certified mail had succeeded. It would not be inconsistent with the approach the Court has taken in notice cases to ask, with respect to a procedure under which telephone calls were placed to owners, what the State did when no one answered. Asking what the State does when a notice letter is returned unclaimed is not substantively different.

The Commissioner has three further arguments for why reasonable followup measures were not required in this case. First, notice was sent to an address that Jones provided and had a legal obligation to keep updated. See Ark. Code Ann. § 26-35-705 (1997). Second, "after failing to receive a property tax bill and pay property taxes, a property holder is on [232] inquiry-notice that his property is subject to governmental taking." Brief for Respondent Commissioner 18-19. Third, Jones was obliged to ensure that those in whose hands he left his property would alert him if it was in jeopardy. None of these contentions relieves the State of its constitutional obligation to provide adequate notice.

The Commissioner does not argue that Jones' failure to comply with a statutory obligation to keep his address updated forfeits his right to constitutionally sufficient notice, and we agree. Id., at 19; see also Brief for United States as Amicus Curiae 16, n. 5 ("`[A] party's ability to take steps to safeguard its own interests does not relieve the State of its constitutional obligation'" (quoting Mennonite, 462 U. S., at 799)). In Robinson, we noted that Illinois law required each vehicle owner to register his address with the secretary of state, and that the State's vehicle forfeiture scheme provided for notice by mail to the address listed in the secretary's records. See 409 U. S., at 38, n. 1 (citing Ill. Rev. Stat., ch. 95½, § 3-405 (1971), and ch. 38, § 36-1 (1969)). But we found that the State had not provided constitutionally sufficient notice, despite having followed its reasonably calculated scheme, because it knew that Robinson could not be reached at his address of record. 409 U. S., at 39-40. Although Ark. Code Ann. § 26-35-705 provides strong support for the Commissioner's argument that mailing a certified letter to Jones at 717 North Bryan Street was reasonably calculated to reach him, it does not alter the reasonableness of the Commissioner's position that he must do nothing more when the notice is promptly returned "unclaimed."

As for the Commissioner's inquiry notice argument, the common knowledge that property may become subject to government taking when taxes are not paid does not excuse the government from complying with its constitutional obligation of notice before taking private property. We have previously stated the opposite: An interested party's "knowledge of delinquency in the payment of taxes is not equivalent [233] to notice that a tax sale is pending." Mennonite, supra, at 800. It is at least as widely known that arrestees have the right to remain silent, and that anything they say may be used against them, see Dickerson v. United States, 530 U. S. 428, 443 (2000) ("Miranda [v. Arizona, 384 U. S. 436 (1966),] has become embedded in routine police practice to the point where the warnings have become part of our national culture"), but that knowledge does not excuse a police failure to provide Miranda warnings. Arkansas affords even a delinquent taxpayer the right to settle accounts with the State and redeem his property, so Jones' failure to pay his taxes in a timely manner cannot by itself excuse inadequate notice.

Finally, the Commissioner reminds us of a statement from Mullane that the State can assume an owner leaves his property in the hands of one who will inform him if his interest is in jeopardy. 339 U. S., at 316. But in this passage, Justice Jackson writes of "libel of a ship, attachment of a chattel[,] or entry upon real estate in the name of law"—such "seiz[ures]" of property, he concluded, "may reasonably be expected to come promptly to the owner's attention." Ibid. An occupant, however, is not charged with acting as the owner's agent in all respects, and it is quite a leap from Justice Jackson's examples to conclude that it is an obligation of tenancy to follow up with certified mail of unknown content addressed to the owner. In fact, the State makes it impossible for the occupant to learn why the Commissioner is writing the owner, because an occupant cannot call for a certified letter without first obtaining the owner's signature. For all the occupant knows, the Commissioner of State Lands might write to certain residents about a variety of matters he finds important, such as state parks or highway construction; it would by no means be obvious to an occupant observing a certified mail slip from the Commissioner that the owner is in danger of losing his property. In any event, there is no record evidence that notices of attempted delivery were left at 717 North Bryan Street.

[234] Jones should have been more diligent with respect to his property, no question. People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. U. S. Const., Amdt. 14; Mennonite, supra, at 799.

B

In response to the returned form suggesting that Jones had not received notice that he was about to lose his property, the State did—nothing. For the reasons stated, we conclude the State should have taken additional reasonable steps to notify Jones, if practicable to do so. The question remains whether there were any such available steps. While "[i]t is not our responsibility to prescribe the form of service that the [government] should adopt," Greene, 456 U. S., at 455, n. 9, if there were no reasonable additional steps the government could have taken upon return of the unclaimed notice letter, it cannot be faulted for doing nothing.

We think there were several reasonable steps the State could have taken. What steps are reasonable in response to new information depends upon what the new information reveals. The return of the certified letter marked "unclaimed" meant either that Jones still lived at 717 North Bryan Street, but was not home when the postman called and did not retrieve the letter at the post office, or that Jones no longer resided at that address. One reasonable step primarily addressed to the former possibility would be for the State to resend the notice by regular mail, so that a signature was not required. The Commissioner says that use of certified mail makes actual notice more likely, because requiring the recipient's signature protects against misdelivery. But that is only true, of course, when someone is home to sign for the letter, or to inform the mail carrier that he has arrived at the wrong address. Otherwise, "[c]ertified [235] mail is dispatched and handled in transit as ordinary mail," United States Postal Service, Domestic Mail Manual § 503.3.2.1 (Mar. 16, 2006), and the use of certified mail might make actual notice less likely in some cases—the letter cannot be left like regular mail to be examined at the end of the day, and it can only be retrieved from the post office for a specified period of time. Following up with regular mail might also increase the chances of actual notice to Jones if— as it turned out—he had moved. Even occupants who ignored certified mail notice slips addressed to the owner (if any had been left) might scrawl the owner's new address on the notice packet and leave it for the postman to retrieve, or notify Jones directly.

Other reasonable followup measures, directed at the possibility that Jones had moved as well as that he had simply not retrieved the certified letter, would have been to post notice on the front door, or to address otherwise undeliverable mail to "occupant." Most States that explicitly outline additional procedures in their tax sale statutes require just such steps. See n. 2, supra. Either approach would increase the likelihood that the owner would be notified that he was about to lose his property, given the failure of a letter deliverable only to the owner in person. That is clear in the case of an owner who still resided at the premises. It is also true in the case of an owner who has moved: Occupants who might disregard a certified mail slip not addressed to them are less likely to ignore posted notice, and a letter addressed to them (even as "occupant") might be opened and read. In either case, there is a significant chance the occupants will alert the owner, if only because a change in ownership could well affect their own occupancy. In fact, Jones first learned of the State's effort to sell his house when he was alerted by one of the occupants—his daughter—after she was served with an unlawful detainer notice.

Jones believes that the Commissioner should have searched for his new address in the Little Rock phonebook [236] and other government records such as income tax rolls. We do not believe the government was required to go this far. As the Commissioner points out, the return of Jones' mail marked "unclaimed" did not necessarily mean that 717 North Bryan Street was an incorrect address; it merely informed the Commissioner that no one appeared to sign for the mail before the designated date on which it would be returned to the sender. An open-ended search for a new address— especially when the State obligates the taxpayer to keep his address updated with the tax collector, see Ark. Code Ann. § 26-35-705 (1997)—imposes burdens on the State significantly greater than the several relatively easy options outlined above.

The Commissioner complains about the burden of even those additional steps, but his argument is belied by Arkansas' current requirement that notice to homestead owners be accomplished by personal service if certified mail is returned, § 26-37-301(e) (Supp. 2005), and the fact that Arkansas transfers the cost of notice to the taxpayer or the tax sale purchaser, § 26-37-104(a). The Commissioner has offered no estimate of how many notice letters are returned, and no facts to support the dissent's assertion that the Commissioner must now physically locate "tens of thousands of properties every year." Post, at 248. Citing our decision in Greene v. Lindsey, the Solicitor General adds that posted notice could be taken down by children or vandals. But in Greene, we noted that outside the specific facts of that case, posting notice on real property is "a singularly appropriate and effective way of ensuring that a person . . . is actually apprised of proceedings against him." 456 U. S., at 452-453. Successfully providing notice is often the most efficient way to collect unpaid taxes, see Mennonite, 462 U. S., at 800, n. 5 (more effective notice may ease burden on State if recipient arranges to pay delinquent taxes prior to tax sale); Tr. of Oral Arg. 24 (85 percent of tax delinquent properties in Arkansas are redeemed upon notice of delinquency), but rather [237] than taking relatively easy additional steps to effect notice, the State undertook the burden and expense of purchasing a newspaper advertisement, conducting an auction, and then negotiating a private sale of the property to Flowers.

The Solicitor General argues that requiring further effort when the government learns that notice was not delivered will cause the government to favor modes of providing notice that do not generate additional information—for example, starting (and stopping) with regular mail instead of certified mail. We find this unlikely, as we have no doubt that the government repeatedly finds itself being asked to prove that notice was sent and received. Using certified mail provides the State with documentation of personal delivery and protection against false claims that notice was never received. That added security, however, comes at a price—the State also learns when notice has not been received. We conclude that, under the circumstances presented, the State cannot simply ignore that information in proceeding to take and sell the owner's property—any more than it could ignore the information that the owner in Robinson was in jail, or that the owner in Covey was incompetent.

Though the Commissioner argues that followup measures are not constitutionally required, he reminds us that the State did make some attempt to follow up with Jones by publishing notice in the newspaper a few weeks before the public sale. Several decades ago, this Court observed that "[c]hance alone" brings a person's attention to "an advertisement in small type inserted in the back pages of a newspaper," Mullane, 339 U. S., at 315, and that notice by publication is adequate only where "it is not reasonably possible or practicable to give more adequate warning," id., at 317. Following up by publication was not constitutionally adequate under the circumstances presented here because, as we have explained, it was possible and practicable to give Jones more adequate warning of the impending tax sale.

[238] The dissent forcefully articulates some basic principles about constitutionally required notice, principles from which we have no intention to depart. In particular, we disclaim any "new rule" that is "contrary to Dusenbery and a significant departure from Mullane." Post, at 244. In Dusenbery, the Government was aware that someone at the prison had signed for the prisoner's notice letter, and we determined that this attempt at notice was adequate, despite the fact that the State could have made notice more likely by requiring the prisoner to sign for the letter himself. 534 U. S., at 171. In this case, of course, the notice letter was returned to the Commissioner, informing him that his attempt at notice had failed.

As for Mullane, it directs that "when notice is a person's due . . . [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." 339 U. S., at 315. Mindful of the dissent's concerns, we conclude, at the end of the day, that someone who actually wanted to alert Jones that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done.

As noted, "[i]t is not our responsibility to prescribe the form of service that the [government] should adopt." Greene, supra, at 455, n. 9. In prior cases finding notice inadequate, we have not attempted to redraft the State's notice statute. See, e. g., Tulsa Professional, 485 U. S., at 490-491; Robinson, 409 U. S., at 40; Schroeder v. City of New York, 371 U. S. 208, 213-214 (1962); Walker, 352 U. S., at 116; Covey, 351 U. S., at 146-147. The State can determine how to proceed in response to our conclusion that notice was inadequate here, and the States have taken a variety of approaches to the present question. See n. 2, supra. It suffices for present purposes that we are confident that additional reasonable steps were available for Arkansas to employ before taking Jones' property.

[239] * * *

There is no reason to suppose that the State will ever be less than fully zealous in its efforts to secure the tax revenue it needs. The same cannot be said for the State's efforts to ensure that its citizens receive proper notice before the State takes action against them. In this case, the State is exerting extraordinary power against a property owner—taking and selling a house he owns. It is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed.

The Commissioner's effort to provide notice to Jones of an impending tax sale of his house was insufficient to satisfy due process given the circumstances of this case. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE ALITO took no part in the consideration or decision of this case.

JUSTICE THOMAS, with whom JUSTICE SCALIA and JUSTICE KENNEDY join, dissenting.

When petitioner failed to pay his property taxes for several consecutive years, respondent Commissioner of State Lands in Arkansas, using the record address that petitioner provided to the State, sent petitioner a letter by certified mail, noting his tax delinquency and explaining that his property would be subject to public sale if the delinquent taxes and penalties were not paid. After petitioner failed to respond, the State also published notice of the delinquency and public sale in an Arkansas newspaper. Soon after respondent Linda K. Flowers submitted a purchase offer to the State, it sent petitioner a second letter by certified mail explaining [240] that the sale would proceed if the delinquent taxes and penalties were not paid.

Petitioner argues that the State violated his rights under the Due Process Clause of the Fourteenth Amendment because, in his view, the State failed to take sufficient steps to contact him before selling his property to Flowers. Petitioner contends that once the State became aware that he had not claimed the certified mail, it was constitutionally obligated to employ additional methods to locate him.

Adopting petitioner's arguments, the Court holds today that "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." Ante, at 225. The Court concludes that it was practicable for Arkansas to take additional steps here—namely, notice by regular mail, posting notice on petitioner's door, and addressing mail to "`occupant.'" Ante, at 235. Because, under this Court's precedents, the State's notice methods clearly satisfy the requirements of the Due Process Clause, I respectfully dissent.

I

The Fourteenth Amendment prohibits the States from "depriv[ing] any person of life, liberty, or property, without due process of law." This Court has held that a State must provide an individual with notice and opportunity to be heard before the State may deprive him of his property. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). Balancing a State's interest in efficiently managing its administrative system and an individual's interest in adequate notice, this Court has held that a State must provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Id., at 313-314. As this Court has explained, "when notice is a person's due . . . [t]he means employed must be such as one desirous of actually informing the absentee [241] might reasonably adopt to accomplish it." Id., at 315. "[H]eroic efforts," however, are not required. Dusenbery v. United States, 534 U. S. 161, 170 (2002). To the contrary, we have expressly rejected "[a] construction of the Due Process Clause which would place impossible or impractical obstacles in the way [of the State]." Mullane, supra, at 313-314. Thus, "none of our cases . . . has required actual notice"; instead, "we have allowed the Government to defend the `reasonableness and hence the constitutional validity of any chosen method . . . on the ground that it is in itself reasonably certain to inform those affected.'" Dusenbery, supra, at 169-170 (quoting Mullane, supra, at 315).

The methods of notice employed by Arkansas were reasonably calculated to inform petitioner of proceedings affecting his property interest and thus satisfy the requirements of the Due Process Clause. The State mailed a notice by certified letter to the address provided by petitioner. The certified letter was returned to the State marked "unclaimed" after three attempts to deliver it. The State then published a notice of public sale containing redemption information in the Arkansas Democrat Gazette newspaper. After Flowers submitted a purchase offer, the State sent yet another certified letter to petitioner at his record address. That letter, too, was returned to the State marked "unclaimed" after three delivery attempts.^[3]

Arkansas' attempts to contact petitioner by certified mail at his "record address," without more, satisfy due process. [242] Dusenbery, supra, at 169. See also Mullane, supra, at 318; Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 490 (1988) ("We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice"); Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 792, 798 (1983) (holding that "notice mailed to [the affected party's] last known available address" is sufficient where a State seeks to sell "real property on which payments of property taxes have been delinquent" (emphasis added)). Because the notices were sent to the address provided by petitioner himself, the State had an especially sound basis for determining that notice would reach him. Moreover, Arkansas exceeded the constitutional minimum by additionally publishing notice in a local newspaper.^[4] See Mullane, supra, at 318. Due process requires nothing more—and certainly not here, where petitioner had a statutory duty to pay his taxes and to report any change of address to the state taxing authority. See Ark. Code Ann. § 26-35-705 (1997).

My conclusion that Arkansas' notice methods satisfy due process is reinforced by the well-established presumption that individuals, especially those owning property, act in their own interest. Recognizing that "`[i]t is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it,'" Mullane, supra, at 316 (quoting The Mary, 9 Cranch 126, 144 (1815)), this Court has concluded that "[t]he ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights," Mullane, 339 U. S., at 316. Consistent with this observation, Arkansas was free to "indulge the assumption" that petitioner had [243] either provided the state taxing authority with a correct and up-to-date mailing address—as required by state law—"or that he . . . left some caretaker under a duty to let him know that [his property was] being jeopardized."^[5]Ibid.

The Court does not conclude that certified mail is inherently insufficient as a means of notice, but rather that "the government's knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation on the government's part to take additional steps to effect notice." Ante, at 230. I disagree.

First, whether a method of notice is reasonably calculated to notify the interested party is determined ex ante, i. e., from the viewpoint of the government agency at the time its notice is sent. This follows from Mullane, where this Court rested its analysis on the information the sender had "at hand" when its notice was sent. 339 U. S., at 318. Relatedly, we have refused to evaluate the reasonableness of a particular method of notice by comparing it to alternative methods that are identified after the fact. See Dusenbery, 534 U. S., at 171-172. Today the Court appears to abandon both of these practices. Its rejection of Arkansas' selected method of notice—a method this Court has repeatedly concluded is constitutionally sufficient—is based upon information that was unavailable when notice was sent. Indeed, the Court's proposed notice methods—regular mail, posting, and addressing mail to "`occupant,'" ante, at 234-235—are entirely the product of post hoc considerations, including the discovery that members of petitioner's family continued to live in the house. Similarly, the Court's observation that "[t]he Commissioner[`s] complain[t] about the burden of . . . additional steps . . . is belied by Arkansas' current requirement that notice to homestead owners be accomplished by personal service if certified mail is returned," ante, at [244] 236, is contrary to Dusenbery's "conclusion that the Government ought not be penalized and told to `try harder' . . . simply because [it] has since upgraded its policies," 534 U. S., at 172.

Second, implicit in our holding that due process does not require "actual notice," see id., at 169-170, is that when the "government becomes aware . . . that its attempt at notice has failed," ante, at 227, it is not required to take additional steps to ensure that notice has been received. Petitioner's challenge to Arkansas' notice methods, and the Court's acceptance of it, is little more than a thinly veiled attack on Dusenbery. Under the majority's logic, each time a doubt is raised with respect to whether notice has reached an interested party, the State will have to consider additional means better calculated to achieve notice. Because this rule turns on speculative, newly acquired information, it has no natural end point, and, in effect, requires the States to achieve something close to actual notice. The majority's new rule is contrary to Dusenbery and a significant departure from Mullane.

The only circumstances in which this Court has found notice by mail and publication inadequate under the Due Process Clause involve situations where the state or local government knew at the outset that its notice efforts were destined to fail and knew how to rectify the problem prior to sending notice. See Robinson v. Hanrahan, 409 U. S. 38, 39 (1972) (per curiam) (intended recipient known to be in jail); Covey v. Town of Somers, 351 U. S. 141, 145 (1956) (intended recipient known to be incompetent and without a guardian).

In Robinson, the State, having arrested petitioner and having detained him in county jail, immediately instituted forfeiture proceedings against his automobile and mailed notice of those proceedings to his residential address. 409 U. S., at 38. Robinson, who was incarcerated in the county jail during the entirety of the forfeiture proceedings, did not receive notice of the proceedings until after he was released [245] and the forfeiture order had been entered. Id., at 38-39. Because the State knew beforehand that Robinson was not at, and had no access to, the address to which it sent the notice, this Court held that the State's efforts were not "`reasonably calculated'" to notify him of the pending proceedings. Id., at 40. Similarly, in Covey, the Court concluded that the methods of notice used by the town—mailing, posting, and publishing—were not reasonably calculated to inform Covey of proceedings adverse to her property interests because local officials knew prior to sending notice that she was "without mental capacity to handle her affairs" and unable to comprehend the meaning of the notices. 351 U. S., at 144, 146.

By contrast, Arkansas did not know at the time it sent notice to petitioner that its method would fail, and Arkansas did not know that petitioner no longer lived at the record address simply because letters were returned "unclaimed." Pet. for Cert. 3. "[U]nclaimed" does not necessarily mean that an address is no longer correct; it may indicate that an intended recipient has simply failed or refused to claim mail. See United States Postal Service, Domestic Mail Manual (DMM), § 507, Exh. 1.4.1, http://pe.usps.gov/ text/dmm300/507.htm.^[6] Given that the State had been using the address provided by petitioner and that petitioner had a legal duty to maintain a current mailing address with the state taxing authority, return of the mail as "unclaimed" did not arm Arkansas with the type of specific knowledge that the governments had at hand in Robinson and Covey. Cf. ante, at 234. The State cannot be charged to correct a problem of petitioner's own creation and of which it was not [246] aware.^[7] Even if the State had divined that petitioner was no longer at the record address, its publication of notice in a local newspaper would have sufficed because Mullane authorizes the use of publication when the record address is unknown. See 339 U. S., at 316 ("[P]ublication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning").

II

The Court's proposed methods, aside from being constitutionally unnecessary, are also burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State.

In Arkansas, approximately 18,000 parcels of delinquent real estate are certified annually. Tsann Kuen Enterprises Co. v. Campbell, 355 Ark. 110, 119-120, 129 S. W. 3d 822, 828 (2003). Under the Court's rule, the State will bear the burden of locating thousands of delinquent property owners. These administrative burdens are not compelled by the Due Process Clause. See Mullane, supra, at 313-314; Tulsa Professional Collection Services, Inc., 485 U. S., at 489-490 (stating that constitutionally sufficient notice "need not be inefficient or burdensome"). Here, Arkansas has determined that its law requiring property owners to maintain a current address with the state taxing authority, in conjunction with its authorization to send property notices to the record address, is an efficient and fair way to administer its tax collection system. The Court's decision today forecloses [247] such a reasonable system and burdens the State with inefficiencies caused by delinquent taxpayers.

Moreover, the Court's proposed methods are no more reasonably calculated to achieve notice than the methods employed by the State here. Regular mail is hardly foolproof; indeed, it is arguably less effective than certified mail. Certified mail is tracked, delivery attempts are recorded, actual delivery is logged, and notices are posted to alert someone at the residence that certified mail is being held at a local post office. By creating a record, these features give parties grounds for defending or challenging notice. By contrast, regular mail is untraceable; there is no record of either delivery or receipt. Had the State used regular mail, petitioner would presumably argue that it should have sent notice by certified mail because it creates a paper trail.^[8]

The Court itself recognizes the deficiencies of its proposed methods. It acknowledges that "[f]ollowing up with regular mail might . . . increase the chances of actual notice"; "occupants who ignored certified mail notice slips . . . might scrawl the owner's new address on the notice packet," ante, at 235 (emphasis added); and "a letter addressed to [occupant] might be opened and read," ibid. (emphasis added). Nevertheless, the Court justifies its redrafting of Arkansas' notice statute [248] on the ground that "[its] approach[es] would increase the likelihood that the owner would be notified that he was about to lose his property . . . ." Ibid. That, however, is not the test; indeed, we rejected such reasoning in Dusenbery. See 534 U. S., at 171 (rejecting the argument that "the FBI's notice was constitutionally flawed because it was `substantially less likely to bring home notice' than a feasible substitute" (some internal quotation marks omitted)).

The Court's suggestion that Arkansas post notice is similarly unavailing. The State's records are organized by legal description, not address, which makes the prospect of physically locating tens of thousands of properties every year, and posting notice on each, impractical. See Tsann Kuen Enterprises Co., supra, at 119-120, 129 S. W. 3d, at 828. Also, this Court has previously concluded that posting is an inherently unreliable method of notice. See Greene v. Lindsey, 456 U. S. 444, 453-454 (1982).

Similarly, addressing the mail to "`occupant,'" see ante, at 235, is no more reasonably calculated to reach petitioner. It is sheer speculation to assume, as the Court does, that although "[o]ccupants . . . might disregard a certified mail slip . . ., . . . a letter addressed to them (even as `occupant') might be opened and read." Ibid. It is at least as likely that an occupant who receives generically addressed mail will discard it as junk mail.

III

If "title to property should not depend on [factual] vagaries," Dusenbery, supra, at 171, then certainly it cannot turn on "wrinkle[s]," ante, at 227, caused by a property owner's own failure to be a prudent ward of his interests. The meaning of the Constitution should not turn on the antics of tax evaders and scofflaws. Nor is the self-created conundrum in which petitioner finds himself a legitimate ground for imposing additional constitutional obligations on the State. The State's attempts to notify petitioner by certified [249] mail at the address that he provided and, additionally, by publishing notice in a local newspaper satisfy due process. Accordingly, I would affirm the judgment of the Arkansas Supreme Court.

[1] Most Courts of Appeals have also concluded that the Due Process Clause of the Fifth Amendment requires the Federal Government to take further reasonable steps in the property forfeiture context. See, e. g., United States v. Ritchie, 342 F. 3d 903, 911 (CA9 2003); Foehl v. United States, 238 F. 3d 474, 480 (CA3 2001); Small v. United States, 136 F. 3d 1334, 1337-1338 (CADC 1998); Torres v. $36,256.80 U. S. Currency, 25 F. 3d 1154, 1161 (CA2 1994); Barrera-Montenegro v. United States, 74 F. 3d 657, 660 (CA5 1996); United States v. Rodgers, 108 F. 3d 1247, 1252-1253 (CA10 1997); see also Garcia v. Meza, 235 F. 3d 287, 291 (CA7 2000) (declining to adopt a per se rule that only examines notice at the time it is sent, but also declining to impose an affirmative duty to seek out claimants in every case where notice is returned undelivered). But see Madewell v. Downs, 68 F. 3d 1030, 1047 (CA8 1995); Sarit v. United States Drug Enforcement Admin., 987 F. 2d 10, 14-15 (CA1 1993).

[2]Many States require that notice be given to the occupants of the property as a matter of course. See Cal. Rev. & Tax. Code Ann. § 3704.7 (West Supp. 2006); Ga. Code Ann. § 48-4-45(a)(1)(B) (Supp. 2005); Ill. Comp. Stat., ch. 35, §§ 200/21-75(a), 200/22-10, 200/22-15 (West 2005); Me. Rev. Stat. Ann., Tit. 36, § 1073 (1990); Md. Tax-Prop. Code Ann. § 14-836(b)(4)(i)(2) (Lexis 2001); Mich. Comp. Laws Ann. § 211.78i(3) (West 2005); Minn. Stat. § 281.23, subd. 6 (2004); Mont. Code Ann. §§ 15-18-212(1)(a), (2)(a) (2005); N. D. Cent. Code Ann. § 57-28-04(3) (Lexis 2005); Okla. Stat., Tit. 68, § 3118(A) (West Supp. 2006); S. D. Codified Laws § 10-25-5 (2004); Utah Code Ann. § 59-2-1351(2)(a) (Lexis 2004); Wis. Stat. § 75.12(1) (2003-2004); Wyo. Stat. Ann. § 39-13-108(e)(v)(B) (1997-2005). Some States require that notice be posted on the property or at the property owner's last known address either at the outset, see Del. Code Ann., Tit. 9, §§ 8724, 8772 (1989 and Supp. 2004); Ga. Code Ann. § 48-4-78(d) (Supp. 2005); Haw. Rev. Stat. Ann. § 246-56 (2003); Md. Tax-Prop. Code Ann. § 14-836(b)(6) (Lexis 2001); Okla. Stat., Tit. 68, § 3118(A), or as a followup measure when personal service cannot be accomplished or certified mail is returned, see Fla. Stat. § 197.522(2)(a) (2003); Minn. Stat. § 281.23, subd. 6; S. C. Code Ann. § 12-51-40(c) (Supp. 2005). And a few States require a diligent inquiry to find a property owner's correct address when mailed notice is returned. See Miss. Code Ann. § 27-43-3 (1973-2002); Nev. Rev. Stat. § 361.595(3)(b) (2003); Pa. Stat. Ann., Tit. 72, § 5860.607a (Purdon 1990); R. I. Gen. Laws § 44-9-25.1 (2005).

See also 26 U. S. C. § 6335(a) (requiring the Internal Revenue Service to make a reasonable attempt to personally serve notice on a delinquent taxpayer before relying upon notice by certified mail); 28 U. S. C. § 3203(g)(1)(A)(i)(IV) (requiring written notice to tenants of real property subject to sale under the Federal Debt Collection Procedures Act of 1990); 12 U. S. C. § 3758(2)(A)(iii) (requiring written notice to occupants before foreclosure by the Secretary of Housing and Urban Development); § 3758(2)(B)(ii) (requiring that notice be posted on the property if occupants are unknown).

[3] Though the Court posits that "there is no record evidence that notices of attempted delivery were left at 717 North Bryan Street," ante, at 233, the postal carrier was required to leave notice at the address at each delivery attempt indicating that delivery of certified mail had been attempted and that the mail could be retrieved at the local post office. See United States Postal Operations Manual § 813.25 (July 2002), http:// www.nalc.org/depart/cau/pdf/manuals/pom/pomc8.pdf (all Internet materials as visited Apr. 21, 2006, and available in Clerk of Court's case file) ("The carrier must leave a notice of arrival on Form 3849 if the carrier cannot deliver the certified article for any reason").

[4] The Court found inadequate the State's attempt at notice by publication, as if that were the State's sole method for effectuating notice, see ante, at 237. But the State plainly used it here as a secondary method of notice.

[5] The issue is not, as the Court maintains, whether the current occupant is "charged with acting as the owner's agent." Ante, at 233. Rather, the issue is whether petitioner discharged his own duty to guard his interests.

[6] The Postal Service uses "Moved, Left No Address" to indicate that the "[a]ddressee moved and filed no change-of-address order," and "Not Deliverable as Addressed—Unable to Forward" to indicate that the mail is "undeliverable at address given; no change-of-address order on file; forwarding order expired." DMM § 507, Exh. 1.4.1.

[7] The Court's "storm drain" hypothetical, ante, at 229, presents the harder question of when notice is sent—at the precise moment the Commissioner places the mail in the postal carrier's hand or the split second later when he observes the departing carrier drop the mail down the storm drain. That more difficult question is not before us in this case because Arkansas learned long after the fact that its attempts had been unsuccessful.

[8] Interestingly, the Court stops short of saddling the State with the other steps that petitioner argues a State should take any time the interested party fails to claim letters mailed to his record address, see ante, at 235-236, namely, searching state tax records, the phonebook, the Internet, department of motor vehicle records, or voting rolls, contacting his employer, or employing debt collectors. Here, the Court reasons that because of the context—the fact that the letter was returned merely "unclaimed" and petitioner had a duty to maintain a current address—the State is not required to go as far as petitioner urges. Ante, at 236. Though the methods proposed by petitioner are severely flawed (for instance, the commonality of his surname "Jones" calls into question the fruitfulness of Internet and phonebook searches), there is no principled basis for the Court's conclusion that petitioner's other proposed methods would "impos[e] burdens on the State significantly greater than the several relatively easy options outlined [by the Court]." Ibid.

31 FR Serv2d 846
88 FRD 545

INSURANCE CO. OF NORTH AMERICA
v.
S/S "HELLENIC CHALLENGER"

US Dist Ct, SDNY, August 27, 1980
No. 79 Civ 2702 (CBM)

MOTLEY, District Judge.

Defendant, Hellenic Lines Limited, has moved for an order of this court to set aside the default judgment entered on February 14, 1980, awarding to plaintiff, Insurance Company of North America, damages of $33,352.02 with interest and costs for cargo damages, shortage, loss and non-delivery. Defendant advances two grounds in support of this motion: 1) defective service of process on defendant pursuant to Rule 4(d) (3), (7) of the [847] Federal Rules of Civil Procedure; and 2)·defendant's excusable neglect, mistake or inadvertence pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Finally, and in the alternative, defendant seeks to have the. default judgment set aside to the extent of the amount of damages awarded, and requests an inquest to determine separately the amount of damages to which plaintiff is entitled. The motion to set aside this judgment on the basis of improper service of process and defendant's excusable neglect is denied. Defendant's motion to set aside the damages award and request for an evidentiary hearing on the issue of damages is hereby granted.

On May 29, 1979, a United States Marshal deposited plaintiff's summons and complaint with a claims adjuster at the office of defendant. The complaint stated an admiralty and maritime claim for $33,352.02 for non-delivery, shortage, loss and damage of a shipment of pickled sheepskins shipped from Port Sudan to New York aboard defendant's vessel, the S/S Hellenic Challenger. Subsequently, the summons and complaint were misplaced and thus were never brought to the attention of the appropriate authorities.

The adjuster who had accepted service of the summons· and complaint is not expressly authorized by defendant to accept service of process; the only employees 'endowed with express authority to accept service of process on behalf of· defendant are all titled officers and the Claims Manager. At the time of service' of the Summons and Complaint, the<·Claims Manager was absent due to' illness and the adjuster, an assistant to the Claims Manager, accepted service.

Since the adjuster misplaced the summons and complaint, defendant remained unaware of the pendency of the lawsuit until March 10, 1980, when defendant's bank informed it that defendant's bank account had been attached by plaintiff. It was at this time that defendant first learned that plaintiff's counsel had filed a default judgment and that a writ of execution had been issued on the judgment for $36,392.06.

First, defendant argues that the default judgment should be set aside because service of the :summons and complaint was defective under Rules 4(d) (3), (7) of the Federal Rules of Civil Procedure; and thus rendering the subsequent judgment void on jurisdictional grounds. This court, however, rejects this contention since it finds that service on defendant was properly executed in accordance with Rules 4(d) (3), (7).

Rule 4 (d) (3) provides in relevant part:

"Service shall be made as follows:

"(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one... authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant."

Rule 4(d) (7) provides in relevant part:

"(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this Rule, it is also sufficient if the summons and complaint are served in the manner prescribed by the statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state."

[848] Rule 4(d)(3) has been liberally construed by the courts and, as interpreted, does not ,require rigid formalism. To be valid, service of process is not limited solely to officially designated officers, managing agents or agents appointed by law for the receipt of process. Rather, "[r]ules governing service of process [are] to be construed in a manner reasonably calculated to effectuate their primary purpose: to give the defendant adequate notice that an action is pending . . . [T]he rule does not require that service be made solely on a restricted class of formally titled officials, but rather permits it to be made 'upon a representative so integrated with the organization that he will know what to do with the papers. Generally, service is sufficient when made upon an individual who stands in such a position as to render it fair, reasonable and just to imply the authority on his part to receive services.'" Top Form Mills, Inc. v. Sociedad Nationale Industria Applicazioni Viscosa, 428 F Supp 1237, 1251 (SDNY 1977) (quoting Montclair Electronics, Inc. v. Electra/Midland Corp., 326 F Supp 839 (SDNY 1971)).

Plaintiff's method of service of the summons and complaint was indeed "reasonably calculated" to alert defendants to the initiation of the suit. Mr. Syed, the adjuster served with the summons and complaint, can be categorized as a representative of defendant "well-integrated" into the organization and quite familiar with the formalities associated with the receipt of service of summonses and complaints. He had accepted service of summonses and complaints on behalf of defendant on at least two previous occasions (PI Exhs L, M) in connection with his ordinary duties of receiving and investigating new claims against. defendant. Furthermore, it may be inferred from the facts presented on this motion that Mr., Syed had easy access to Mr. Diamond, the claims manager officially authorized to accept service of process, since the two men are separated from each other only by Mr. Diamond's glass-walled office. In view of these facts, this court concludes that Mr. Syed was sufficiently acquainted with the procedure associated with receipt of service of process to render it fair and just for this court to imply authority on his part to receive service of the summons and complaint. Mr. Syed's familiarity with service of process negates any and all suspicion that the U. S. Marshal delivered the summons and complaint to a representative of defendant who had infrequent contact with summonses and complaints and whose unfamiliarity with service of process increased the risk of careless or improper handling. See Goetz v. Interlake S. S. Co., 47 F2d 753 (SDNY 1931).

Next, defendant argues that the default judgment should be set aside for the reason that the loss of the summons and complaint constitutes "excusable neglect" pursuant to Rule 60(b) (1) of the Federal Rules of Civil Procedure. Rule 60(b)(l) provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . .''

While Rule 60(b) (1) is designed to grant relief for the .mistakes and excusable neglect of a party who seeks to vacate a default judgment, this remedy has been utilized by courts to rectify mistakes of attorneys but not those of clients. 'Fischer v. Dover Steamship Co., 218 F2d 682 (2d Cir 1955); Greenspun v. Bogan, 492 F2d 375 (1st Cir 1974). ''[T]he liberal construction is usually reserved for instances where error is due to failure of attorneys or other agents to act on behalf of their clients, not where the client's own internal procedures [849] are at fault." Id. at 382. See Horn v. :Intelectron Corp., 294 F Supp 1153 (SDNY 1968).

In the case at hand, the adjuster's loss of the summons and complaint clearly cannot be ascribed to· any carelessness on the part of defendant's counsel. The procedure for handling the receipt of summonses and complaints is clearly an "internal procedure" of defendant. The adjuster's loss of the summons and complaint is a mistake in the ordinary course of the internal operations of defendant's business and thus does not merit remedial relief pursuant to Rule 60(b) (1).^[1]

Finally, defendant requests an inquest to determine the amount of damages for the cargo loss and damage, claiming that the judgment was not based upon a "sum certain" as required by Rule 55(b) (1) of the Federal Rules of, Civil Procedure. It is well-established that a default judgment may· be entered only for a "sum certain." A "sum certain" is a sum which is susceptible to reliable computation or determined by the court after an accounting. See Flaks v. Koegel, 504 F2d 702 (2d Cir 1974); Ace Grain Co. v. American Eagle Fire Ins., 11 FRD 364 (SDNY 1951). Plaintiff's estimate of the cargo damage cannot be labeled as a "sum certain."

Plaintiff's damage award is based upon a report of a surveyor who assigned percentages of damage from excessive heat to each batch ·.of the cargo of pickled sheepskin. This estimate was arrived at by visual examination of the extent of damage to the cargo. This method of ascertaining the damage to cargo and arriving at a monetary estimation of the amount of damages is not a "sum certain" within the ambit of Rule 55(b)(1). It has been held that a surveyor's estimate as to the extent of cargo damage does not represent a liquidated sum certain suitable for the entry of a default judgment. "The surveyor's findings [with respect to the cargo damage] represent an opinion as to the value and other factors which the defendant is not required to accept or it is concluded thereby even though it retained the surveyor . . . . The claim, cargo damage under an insurance policy, is unliquidated and is not converted into one for a liquidated amount or a 'sum certain' by a surveyor's report intended for adjust­ mentor trial purposes. The defendant has the right to a judicial determination of the extent of. the damages claimed by plaintiff and the appropriate method for determining this issue is either by the court or upon a reference in accordance with Rule 55(b) (2)." Ace Grain Co., supra at 365-366.

In the instant case, the surveyor's estimate of the damage to the cargo is not. a binding, final determination of damages for the purposes of entry of the default judgment. ·The court concludes that the default judgment entered in this action is not based upon a sum certain and, accordingly, vacates the default judgment to the extent of the damage award.

For. the above stated reasons, defendant's motions under Rules 4(d)(3), (7) and 60 (b)(1), ( 6) are denied. Defendant's request for an inquest to . determine. the amount of damages recoverable by plaintiff is granted.

^[1] Defendant has also failed to show good cause for relief, under Rule 60(b)(6), from entry of the default judgment. See International Controls Corp. v. Vesco, 556 F2q .665 (2d Cir 1977), cert denied, 434 US 1014, 98 S Ct 730, 54 L Ed2d 758(1978)

C. C. Daniels, of New York City (Lelia Russell, Carson & Petteway, of Miami, Fla., of counsel), for appellant.

Max D. Steuer, of New York City, for respondent.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

This appeal is from a judgment entered dismissing the complaint on motion before trial. The action is on a judgment entered by default in a Florida state court, a jury having assessed the damages. The recovery there was for money loaned, money advanced for appellee, and for seduction under promise of marriage.

Appellee's answer pleads facts supporting his claim that he was fraudulently enticed into the Florida jurisdiction, appellant's state of residence, for the sole purpose of service of process. A motion by the plaintiff-appellant to strike out this defense and for summary judgment, pursuant to rule 113 of the New York Rules of Civil Practice, [314] was denied. For the purpose of such a motion, the facts alleged in the answer are deemed to be true. Rules 109, 112. Affidavits were submitted in support of and in opposition to these motions, and thereupon appellee moved to dismiss the complaint. The motion was granted.

Appellant and appellee were both married, but before this suit appellant's husband died. They had known each other for some years and had engaged in meretricious relations.

The affidavits submitted by the appellee deemed to be true for the purpose of testing the alleged error of dismissing the complaint established that he was a resident of New York and never lived in Florida. On October 25, 1935, while appellee was in Salt Lake City, Utah, he received a telegram from the appellant, which read: "Account illness home planning leaving. Please come on way back. Must see you." Upon appellee's return to New York he received a letter from appellant stating that her mother was dying in Ireland; that she was leaving the United States for good to go to her mother; that she could not go without seeing the appellee once more; and that she wanted to discuss her affairs with him before she left. Shortly after the receipt of this letter, they spoke to each other on the telephone, whereupon the appellant repeated, in a hysterical and distressed voice, the substance of her letter. Appellee promised to go to Florida in a week or ten days and agreed to notify her when he would arrive. This he did, but before leaving New York by plane he received a letter couched in endearing terms and expressing love and affection for him, as well as her delight at his coming. Before leaving New York, appellee telegraphed appellant, suggesting arrangements for their accommodations together while in Miami, Fla. She telegraphed him at a hotel in Washington, D. C., where he was to stop en route, advising him that the arrangements requested had been made. Appellee arrived at 6 o'clock in the morning at the Miami Airport and saw the appellant standing with her sister some 75 feet distant. He was met by a deputy sheriff who, upon identifying appellee, served him with process in a suit for $500,000. A photographer was present who attempted to take his picture. Thereupon a stranger introduced himself and offered to take appellee to his home, stating that he knew a lawyer who was acquainted with the appellant's attorney. The attorney whom appellee was advised to consult came to the stranger's home and seemed to know about the case. The attorney invited appellee to his office, and upon his arrival he found one of the lawyers for the appellant there. Appellee did not retain the Florida attorney to represent him. He returned to New York by plane that evening and consulted his New York counsel, who advised him to ignore the summons served in Florida. He did so, and judgment was entered by default. Within a few days after the service of process, the appellant came to New York and sought an interview with the appellee. It resulted in their meeting at the home of the appellee's attorney. She was accompanied by her Florida counsel.

These facts and reasonable deductions therefrom convincingly establish that the appellee was induced to enter the jurisdiction of the state of Florida by a fraud perpetrated upon him by the appellant in falsely representing her mother's illness, her intention to leave the United States, and her love and affection for him, when her sole purpose and apparent thought was to induce him to come within the Florida jurisdiction so as to serve him in an action for damages. Appellant does not deny making these representations. All her statements of great and undying love were disproved entirely by her appearance at the airport and participation in the happenings there. She never went to Ireland to see her mother, if indeed the latter was sick at all.

In asking for judgment based on these Florida proceedings, appellant relies upon article 4, section 1, of the United States Constitution, providing that "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State." Congress has provided that judicial proceedings duly authenticated, "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." 28 U.S.C.A. § 687. The first inquiry is what faith and credit would be given to this judgment within the state of Florida. On these facts, the service of process was fraudulent, and under the circumstances we think would have been vacated there. We are referred neither to any statutory provision of Florida, governing the vacation of service of process when affected by fraud, nor to any controlling Florida decision. We are, therefore, free [315] to apply the law of the forum where the service would have been set aside as fraudulent. Blandin v. Ostrander, 239 F. 700 (C.C.A.2); Neotex Mfg. Co. v. Eidinger, 250 App.Div. 504, 294 N.Y.S. 767 (1st Dept.); Skillman v. Toulson, 211 App.Div 336, 207 N.Y.S. 296.

This judgment is attacked for fraud perpetrated upon the appellee which goes to the jurisdiction of the Florida court over his person. A judgment procured fraudulently, as here, lacks jurisdiction and is null and void. Lucy v. Deas, 59 Fla. 552, 52 So. 515. Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347. A fraud affecting the jurisdiction is equivalent to a lack of jurisdiction. Dunlap & Co. v. Cody, 31 Iowa 260, 7 Am.Rep. 129; Duringer v. Moschino, 93 Ind. 495, 498; Abercrombie v. Abercrombie, 64 Kan. 29, 67 P. 539. The appellee was not required to proceed against the judgment in Florida. His equitable defense in answer to a suit on the judgment is sufficient. A judgment recovered in a sister state, through the fraud of the party procuring the appearance of another, is not binding on the latter when an attempt is made to enforce such judgment in another state. Gray v. Richmond Bicycle Co., 167 N.Y. 348, 355, 60 N.E. 663, 82 Am.St.Rep. 720. There is a dictum to the contrary in Capwell v. Sipe, 51 F. 667, 668 (C.C.N.D.Ohio), where the defendant was sued in the foreign court while within the jurisdiction attending another case. His objection to service of process was overruled. There is authority to like effect in Vastine v. Bast, 41 Mo. 493. But we think the weight of authority is against such view. In Jaster v. Currie, 198 U.S. 144, 25 S.Ct. 614, 49 L.Ed. 988, to which appellant refers, the court decided only that the defendant had not been enticed into the jurisdiction by fraud and, therefore, that case is not helpful. Smith v. Apple, 6 F.2d 559 (C.C.A.8) and Cragin v. Lovell, 109 U.S. 194, 3 S.Ct. 132, 27 L.Ed. 903, deal with irregularities in procedure not voiding the judgment.

The appellee was not required to make out a defense on the merits to the suit in Florida. We are not here concerned with such rule, applicable to alleged fraud in the proceedings after valid jurisdiction of the person and the subject matter has been obtained. Here the court did not duly acquire jurisdiction and no such defense to the merits need be shown. An error made in entering judgment against a party over whom the court had no jurisdiction permits a consideration of the jurisdictional question collaterally. The complaint was properly dismissed.

Judgment affirmed.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA.

[68] C. Michael Abbott argued the cause pro hac vice for appellant in No. 70-5039. With him on the brief was Bruce S. Rogow. David A. School argued the cause [69] pro hac vice for appellants in No. 70-5138. With him on the brief was Harvey N. Schmidt.

Herbert T. Schwartz, Deputy Attorney General of Florida, argued the cause for appellee Shevin in No. 70-5039. On the brief was Robert L. Shevin, Attorney General of Florida, pro se. George W. Wright, Jr., argued the cause for appellee Firestone Tire & Rubber Co. in No. 70-5039. With him on the brief was Karl B. Block, Jr. Robert F. Maxwell argued the cause for appellees in No. 70-5138 and was on the brief for appellee Sears, Roebuck & Co. J. Shane Creamer, Attorney General, and Peter W. Brown, Deputy Attorney General, filed a brief for appellee the Commonwealth of Pennsylvania in No. 70-5138.

Briefs of amici curiae urging reversal in No. 70-5039 were filed by Allan Ashman for the National Legal Aid and Defender Association and by Blair C. Shick, Jean Camper Cahn, and Barbara B. Gregg for the National Consumer Law Center of Boston College Law School et al.

Harry N. Boureau, Ross L. Malone, Robert L. Clare, Jr., and George J. Wade filed a brief for General Motors Acceptance Corp. et al. as amici curiae urging affirmance in No. 70-5039.

MR. JUSTICE STEWART delivered the opinion of the Court.

We here review the decisions of two three-judge federal District Courts that upheld the constitutionality of Florida and Pennsylvania laws authorizing the summary seizure of goods or chattels in a person's possession under a writ of replevin. Both statutes provide for the issuance of writs ordering state agents to seize a person's possessions, simply upon the ex parte application of any other person who claims a right to them and posts a [70] security bond. Neither statute provides for notice to be given to the possessor of the property, and neither statute gives the possessor an opportunity to challenge the seizure at any kind of prior hearing. The question is whether these statutory procedures violate the Fourteenth Amendment's guarantee that no State shall deprive any person of property without due process of law.

I

The appellant in No. 5039, Margarita Fuentes, is a resident of Florida. She purchased a gas stove and service policy from the Firestone Tire and Rubber Co. (Firestone) under a conditional sales contract calling for monthly payments over a period of time. A few months later, she purchased a stereophonic phonograph from the same company under the same sort of contract. The total cost of the stove and stereo was about $500, plus an additional financing charge of over $100. Under the contracts, Firestone retained title to the merchandise, but Mrs. Fuentes was entitled to possession unless and until she should default on her installment payments.

For more than a year, Mrs. Fuentes made her installment payments. But then, with only about $200 remaining to be paid, a dispute developed between her and Firestone over the servicing of the stove. Firestone instituted an action in a small-claims court for repossession of both the stove and the stereo, claiming that Mrs. Fuentes had refused to make her remaining payments. Simultaneously with the filing of that action and before Mrs. Fuentes had even received a summons to answer its complaint, Firestone obtained a writ of replevin ordering a sheriff to seize the disputed goods at once.

In conformance with Florida procedure,^[2] Firestone [71] had only to fill in the blanks on the appropriate form documents and submit them to the clerk of the small-claims court. The clerk signed and stamped the documents and issued a writ of replevin. Later the same day, a local deputy sheriff and an agent of Firestone went to Mrs. Fuentes' home and seized the stove and stereo.

Shortly thereafter, Mrs. Fuentes instituted the present action in a federal district court, challenging the constitutionality of the Florida prejudgment replevin procedures under the Due Process Clause of the Fourteenth Amendment.^[3] She sought declaratory and injunctive relief against continued enforcement of the procedural provisions of the state statutes that authorize prejudgment replevin.^[4]

The appellants in No. 5138 filed a very similar action in a federal district court in Pennsylvania, challenging the constitutionality of that State's prejudgment replevin process. Like Mrs. Fuentes, they had had possessions seized under writs of replevin. Three of the appellants had purchased personal property—a bed, a table, and other household goods—under installment sales contracts like the one signed by Mrs. Fuentes; and the sellers of the property had obtained and executed summary writs of replevin, claiming that the appellants had fallen behind in their installment payments. [72] The experience of the fourth appellant, Rosa Washington, had been more bizarre. She had been divorced from a local deputy sheriff and was engaged in a dispute with him over the custody of their son. Her former husband, being familiar with the routine forms used in the replevin process, had obtained a writ that ordered the seizure of the boy's clothes, furniture, and toys.^[5]

In both No. 5039 and No. 5138, three-judge District Courts were convened to consider the appellants' challenges to the constitutional validity of the Florida and Pennsylvania statutes. The courts in both cases upheld the constitutionality of the statutes. Fuentes v. Fair-cloth, 317 F. Supp. 954 (SD Fla); Epps v. Cortese, 326 F. Supp. 127 (ED Pa.).^[6] We noted probable jurisdiction of both appeals. 401 U. S. 906; 402 U. S. 994.

[73] II

Under the Florida statute challenged here,^[7] "[a]ny person whose goods or chattels are wrongfully detained by any other person . . . may have a writ of replevin to recover them . . . ." Fla. Stat. Ann. § 78.01 (Supp. 1972-1973). There is no requirement that the applicant make a convincing showing before the seizure [74] that the goods are, in fact, "wrongfully detained." Rather, Florida law automatically relies on the bare assertion of the party seeking the writ that he is entitled to one and allows a court clerk to issue the writ summarily. It requires only that the applicant file a complaint, initiating a court action for repossession and reciting in conclusory fashion that he is "lawfully entitled to the possession" of the property, and that he file a security bond

"in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay and that if defendant recovers judgment against him in the action, he will return the property, if return thereof is adjudged, and will pay defendant all sums of money recovered against plaintiff by defendant in the action." Fla. Stat. Ann. § 78.07 (Supp. 1972-1973).

[75] On the sole basis of the complaint and bond, a writ is issued "command[ing] the officer to whom it may be directed to replevy the goods and chattels in possession of defendant . . . and to summon the defendant to answer the complaint." Fla. Stat. Ann. § 78.08 (Supp. 1972-1973). If the goods are "in any dwelling house or other building or enclosure," the officer is required to demand their delivery; but, if they are not delivered, "he shall cause such house, building or enclosure to be broken open and shall make replevin according to the writ . . . ." Fla. Stat. Ann. § 78.10 (Supp. 1972-1973).

Thus, at the same moment that the defendant receives the complaint seeking repossession of property through court action, the property is seized from him. He is provided no prior notice and allowed no opportunity whatever to challenge the issuance of the writ. After the property has been seized, he will eventually have an opportunity for a hearing, as the defendant in the trial of the court action for repossession, which the plaintiff is required to pursue. And he is also not wholly without recourse in the meantime. For under the Florida statute, the officer who seizes the property must keep it for three days, and during that period the defendant may reclaim possession of the property by posting his own security bond in double its value. But if he does not post such a bond, the property is transferred to the party who sought the writ, pending a final judgment in the underlying action for repossession. Fla. Stat. Ann. § 78.13 (Supp. 1972-1973).

The Pennsylvania law^[8] differs, though not in its essential nature, from that of Florida. As in Florida, [76] a private party may obtain a prejudgment writ of replevin through a summary process of ex parte application to a prothonotary. As in Florida, the party seeking [77] the writ may simply post with his application a bond in double the value of the property to be seized. Pa. Rule Civ. Proc. 1073 (a). There is no opportunity for a prior hearing and no prior notice to the other party. On this basis, a sheriff is required to execute the writ by seizing the specified property. Unlike the Florida statute, however, the Pennsylvania law does not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property. The party seeking the writ is not obliged to initiate a court action for repossession.^[9] Indeed, [78] he need not even formally allege that he is lawfully entitled to the property. The most that is required is that he file an "affidavit of the value of the property to be replevied." Pa. Rule Civ. Proc. 1073 (a). If the party who loses property through replevin seizure is to get even a post-seizure hearing, he must initiate a lawsuit himself.^[10] He may also, as under Florida law, post his own counterbond within three days after the seizure to regain possession. Pa. Rule Civ. Proc. 1076.

III

Although these prejudgment replevin statutes are descended from the common-law replevin action of six centuries ago, they bear very little resemblance to it. Replevin at common law was an action for the return of specific goods wrongfully taken or "distrained." Typically, it was used after a landlord (the "distrainor") had seized possessions from a tenant (the "distrainee") to satisfy a debt allegedly owed. If the tenant then instituted a replevin action and posted security, the landlord could be ordered to return the property at [79] once, pending a final judgment in the underlying action.^[11] However, this prejudgment replevin of goods at common law did not follow from an entirely ex parte process of pleading by the distrainee. For "[t]he distrainor could always stop the action of replevin by claiming to be the owner of the goods; and as this claim was often made merely to delay the proceedings, the writ de proprietate probanda was devised early in the fourteenth century, which enabled the sheriff to determine summarily the question of ownership. If the question of ownership was determined against the distrainor the goods were delivered back to the distrainee [pending final judgment]." 3 W. Holdsworth, History of English Law 284 (1927).

Prejudgment replevin statutes like those of Florida and Pennsylvania are derived from this ancient possessory action in that they authorize the seizure of property before a final judgment. But the similarity ends there. As in the present cases, such statutes are most commonly used by creditors to seize goods allegedly wrongfully detained—not wrongfully taken—by debtors. At common law, if a creditor wished to invoke state power to recover goods wrongfully detained, he had to proceed through the action of debt or detinue.^[12] These actions, however, did not provide for a return of property before final judgment.^[13] And, more importantly, on the occasions when the common law did allow prejudgment seizure by state power, it provided some kind [80] of notice and opportunity to be heard to the party then in possession of the property, and a state official made at least a summary determination of the relative rights of the disputing parties before stepping into the dispute and taking goods from one of them.

IV

For more than a century the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Baldwin v. Hale, 1 Wall. 223, 233. See Windsor v. McVeigh, 93 U. S. 274; Hovey v. Elliott, 167 U. S. 409; Grannis v. Ordean, 234 U. S. 385. It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 552.

The primary question in the present cases is whether these state statutes are constitutionally defective in failing to provide for hearings "at a meaningful time." The Florida replevin process guarantees an opportunity for a hearing after the seizure of goods, and the Pennsylvania process allows a post-seizure hearing if the aggrieved party shoulders the burden of initiating one. But neither the Florida nor the Pennsylvania statute provides for notice or an opportunity to be heard before the seizure. The issue is whether procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another.

The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not [81] only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment— to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference. See Lynch v. Household Finance Corp., 405 U. S. 538, 552.

The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person's possessions. But the fair process of decisionmaking that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. It has long been recognized that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 170-172 (Frankfurter, J., concurring).

If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be [82] awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. "This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone." Stanley v. Illinois, 405 U. S. 645, 647.

This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing "appropriate to the nature of the case," Mullane v. Central Hanover Tr. Co., 339 U. S. 306, 313, and "depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any]," Boddie v. Connecticut, 401 U. S. 371, 378, the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. E. g., Bell v. Burson, 402 U. S. 535, 542; Wisconsin v. Constantineau, 400 U. S. 433, 437; Goldberg v. Kelly, 397 U. S. 254; Armstrong v. Manzo, 380 U. S., at 551; Mullane v. Central Hanover Tr. Co., supra, at 313; Opp Cotton Mills v. Administrator, 312 U. S. 126, 152-153; United States v. Illinois Central R. Co., 291 U. S. 457, 463; Londoner v. City & County of Denver, 210 U. S. 373, 385-386. See In re Ruffalo, 390 U. S. 544, 550-551. "That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, supra, at 378-379 (emphasis in original).

[83] The Florida and Pennsylvania prejudgment replevin statutes fly in the face of this principle. To be sure, the requirements that a party seeking a writ must first post a bond, allege conclusorily that he is entitled to specific goods, and open himself to possible liability in damages if he is wrong, serve to deter wholly unfounded applications for a writ. But those requirements are hardly a substitute for a prior hearing, for they test no more than the strength of the applicant's own belief in his rights.^[14] Since his private gain is at stake, the danger is all too great that his confidence in his cause will be misplaced. Lawyers and judges are familiar with the phenomenon of a party mistakenly but firmly convinced that his view of the facts and law will prevail, and therefore quite willing to risk the costs of litigation. Because of the understandable, selfinterested fallibility of litigants, a court does not decide a dispute until it has had an opportunity to hear both sides—and does not generally take even tentative action until it has itself examined the support for the plaintiff's position. The Florida and Pennsylvania statutes do not even require the official issuing a writ of replevin to do that much.

The minimal deterrent effect of a bond requirement is, in a practical sense, no substitute for an informed evaluation by a neutral official. More specifically, as a matter of constitutional principle, it is no replacement for the right to a prior hearing that is the only truly effective safeguard against arbitrary deprivation of property. While the existence of these other, less [84] effective, safeguards may be among the considerations that affect the form of hearing demanded by due process, they are far from enough by themselves to obviate the right to a prior hearing of some kind.

V

The right to a prior hearing, of course, attaches only to the deprivation of an interest encompassed within the Fourteenth Amendment's protection. In the present cases, the Florida and Pennsylvania statutes were applied to replevy chattels in the appellants' possession. The replevin was not cast as a final judgment; most, if not all, of the appellants lacked full title to the chattels; and their claim even to continued possession was a matter in dispute. Moreover, the chattels at stake were nothing more than an assortment of household goods. Nonetheless, it is clear that the appellants were deprived of possessory interests in those chattels that were within the protection of the Fourteenth Amendment.

A

A deprivation of a person's possessions under a prejudgment writ of replevin, at least in theory, may be only temporary. The Florida and Pennsylvania statutes do not require a person to wait until a post-seizure hearing and final judgment to recover what has been replevied. Within three days after the seizure, the statutes allow him to recover the goods if he, in return, surrenders other property—a payment necessary to secure a bond in double the value of the goods seized from him.^[15] But it is now [85] well settled that a temporary, nonfinal deprivation of property is nonetheless a "deprivation" in the terms of the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337; Bell v. Burson, 402 U. S. 535. Both Sniadach and Bell involved takings of property pending a final judgment in an underlying dispute. In both cases, the challenged statutes included recovery provisions, allowing the defendants to post security to quickly regain the property taken from them.^[16] Yet the Court firmly held that these were deprivations of property that had to be preceded by a fair hearing.

The present cases are no different. When officials of Florida or Pennsylvania seize one piece of property from a person's possession and then agree to return it if he surrenders another, they deprive him of property whether or not he has the funds, the knowledge, and the time needed to take advantage of the recovery provision. [86] The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause. While the length and consequent severity of a deprivation may be another factor to weigh in determining the appropriate form of hearing, it is not decisive of the basic right to a prior hearing of some kind.

B

The appellants who signed conditional sales contracts lacked full legal title to the replevied goods. The Fourteenth Amendment's protection of "property," however, has never been interpreted to safeguard only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to "any significant property interest," Boddie v. Connecticut, 401 U. S., at 379, including statutory entitlements. See Bell v. Burson, 402 U. S., at 539; Goldberg v. Kelly, 397 U. S., at 262.

The appellants were deprived of such an interest in the replevied goods—the interest in continued possession and use of the goods. See Sniadach v. Family Finance Corp., 395 U. S., at 342 (Harlan, J., concurring). They had acquired this interest under the conditional sales contracts that entitled them to possession and use of the chattels before transfer of title. In exchange for immediate possession, the appellants had agreed to pay a major financing charge beyond the basic price of the merchandise. Moreover, by the time the goods were summarily repossessed, they had made substantial installment payments. Clearly, their possessory interest in the goods, dearly bought and protected by contract,^[17] [87] was sufficient to invoke the protection of the Due Process Clause.

Their ultimate right to continued possession was, of course, in dispute. If it were shown at a hearing that the appellants had defaulted on their contractual obligations, it might well be that the sellers of the goods would be entitled to repossession. But even assuming that the appellants had fallen behind in their installment payments, and that they had no other valid defenses,^[18] that is immaterial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. "To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U. S. 413, 424. It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and use of the goods.^[19]

[88] C

Nevertheless, the District Courts rejected the appellants' constitutional claim on the ground that the goods seized from them—a stove, a stereo, a table, a bed, and so forth—were not deserving of due process protection, since they were not absolute necessities of life. The courts based this holding on a very narrow reading of Sniadach v. Family Finance Corp., supra, and Goldberg v. Kelly, supra, in which this Court held that the Constitution requires a hearing before prejudgment wage garnishment and before the termination of certain welfare benefits. They reasoned that Sniadach and Goldberg, as a matter of constitutional principle, established no more than that a prior hearing is required with respect to the deprivation of such basically "necessary" items as wages and welfare benefits.

This reading of Sniadach and Goldberg reflects the premise that those cases marked a radical departure from established principles of procedural due process. They did not. Both decisions were in the mainstream of past cases, having little or nothing to do with the absolute "necessities" of life but establishing that due process requires an opportunity for a hearing before a deprivation of property takes effect.^[20]E. g., Opp Cotton Mills v. Administrator, 312 U. S., at 152-153; United States v. Illinois Central R. Co., 291 U. S., at 463; Southern R. Co. v. Virginia, 290 U. S. 190; Londoner v. City & County of Denver, 210 U. S. 373; Central of Georgia v. Wright, 207 U. S. 127; Security Trust [89] Co. v. Lexington, 203 U. S. 323; Hibben v. Smith, 191 U. S. 310; Glidden v. Harrington, 189 U. S. 255. In none of those cases did the Court hold that this most basic due process requirement is limited to the protection of only a few types of property interests. While Sniadach and Goldberg emphasized the special importance of wages and welfare benefits, they did not convert that emphasis into a new and more limited constitutional doctrine.^[21]

Nor did they carve out a rule of "necessity" for the sort of nonfinal deprivations of property that they involved. That was made clear in Bell v. Burson, 402 U. S. 535, holding that there must be an opportunity for a fair hearing before mere suspension of a driver's license. A driver's license clearly does not rise to the level of "necessity" exemplified by wages and welfare benefits. Rather, as the Court accurately stated, it is an "important interest," id., at 539, entitled to the protection of procedural due process of law.

The household goods, for which the appellants contracted and paid substantial sums, are deserving of similar protection. While a driver's license, for example, "may become [indirectly] essential in the pursuit of a livelihood," ibid., a stove or a bed may be equally essential to provide a minimally decent environment for human beings in their day-to-day lives. It is, after all, such consumer goods that people work and earn a livelihood in order to acquire.

No doubt, there may be many gradations in the "importance" or "necessity" of various consumer goods. Stoves could be compared to television sets, or beds [90] could be compared to tables. But if the root principle of procedural due process is to be applied with objectivity, it cannot rest on such distinctions. The Fourteenth Amendment speaks of "property" generally. And, under our free-enterprise system, an individual's choices in the marketplace are respected, however unwise they may seem to someone else. It is not the business of a court adjudicating due process rights to make its own critical evaluation of those choices and protect only the ones that, by its own lights, are "necessary."^[22]

VI

There are "extraordinary situations" that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U. S., at 379. These situations, however, must be truly unusual.^[23] Only in a few limited situations [91] has this Court allowed outright seizure^[24] without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property [92] to collect the internal revenue of the United States,^[25] to meet the needs of a national war effort,^[26] to protect against the economic disaster of a bank failure,^[27] and to protect the public from misbranded drugs^[28] and contaminated food.^[29]

The Florida and Pennsylvania prejudgment replevin statutes serve no such important governmental or general public interest. They allow summary seizure of a person's possessions when no more than private gain is directly at stake.^[30] The replevin of chattels, as in the [93] present cases, may satisfy a debt or settle a score. But state intervention in a private dispute hardly compares to state action furthering a war effort or protecting the public health.

Nor do the broadly drawn Florida and Pennsylvania statutes limit the summary seizure of goods to special situations demanding prompt action. There may be cases in which a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods. But the statutes before us are not "narrowly drawn to meet any such unusual condition." Sniadach v. Family Finance Corp., supra, at 339. And no such unusual situation is presented by the facts of these cases.

The statutes, moreover, abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters. The State acts largely in the dark.^[31]

[94] VII

Finally, we must consider the contention that the appellants who signed conditional sales contracts thereby waived their basic procedural due process rights. The contract signed by Mrs. Fuentes provided that "in the event of default of any payment or payments, Seller at its option may take back the merchandise . . . ." The contracts signed by the Pennsylvania appellants similarly provided that the seller "may retake" or "repossess" the merchandise in the event of a "default in any payment." These terms were parts of printed form contracts, appearing in relatively small type and unaccompanied by any explanations clarifying their meaning.

In D. H. Overmyer Co. v. Frick Co., 405 U. S. 174, the Court recently outlined the considerations relevant to determination of a contractual waiver of due process rights. Applying the standards governing waiver of constitutional rights in a criminal proceeding^[32]—although not holding that such standards must necessarily apply—the Court held that, on the particular facts of that case, the contractual waiver of due process [95] rights was "voluntarily, intelligently, and knowingly" made. Id., at 187. The contract in Overmyer was negotiated between two corporations; the waiver provision was specifically bargained for and drafted by their lawyers in the process of these negotiations. As the Court noted, it was "not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion." Id., at 186. Both parties were "aware of the significance" of the waiver provision. Ibid.

The facts of the present cases are a far cry from those of Overmyer. There was no bargaining over contractual terms between the parties who, in any event, were far from equal in bargaining power. The purported waiver provision was a printed part of a form sales contract and a necessary condition of the sale. The appellees made no showing whatever that the appellants were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights.

The Court in Overmyer observed that "where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the [waiver] provision, other legal consequences may ensue." Id., at 188. Yet, as in Overmyer, there is no need in the present cases to canvass those consequences fully. For a waiver of constitutional rights in any context must, at the very least, be clear. We need not concern ourselves with the involuntariness or unintelligence of a waiver when the contractual language relied upon does not, on its face, even amount to a waiver.

The conditional sales contracts here simply provided that upon a default the seller "may take back," "may retake" or "may repossess" merchandise. The contracts [96] included nothing about the waiver of a prior hearing. They did not indicate how or through what process— a final judgment, self-help, prejudgment replevin with a prior hearing, or prejudgment replevin without a prior hearing—the seller could take back the goods. Rather, the purported waiver provisions here are no more than a statement of the seller's right to repossession upon occurrence of certain events. The appellees do not suggest that these provisions waived the appellants' right to a full post-seizure hearing to determine whether those events had, in fact, occurred and to consider any other available defenses. By the same token, the language of the purported waiver provisions did not waive the appellants' constitutional right to a preseizure hearing of some kind.

VIII

We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.^[33] Our holding, however, is a narrow one. We do not question the power of a State to seize goods before a final judgment in order to protect the security interests of creditors so long as those creditors have tested their claim to the goods through the process of a fair prior hearing. The nature and form of such prior hearings, moreover, are legitimately open to many potential variations and are a [97] subject, at this point, for legislation—not adjudication.^[34] Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. "[D]ue process is afforded only by the kinds of `notice' and `hearing' that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property . . . ." Sniadach v. Family Finance Corp., supra, at 343 (Harlan, J., concurring). See Bell v. Burson, supra, at 540; Goldberg v. Kelly, supra, at 267.

For the foregoing reasons, the judgments of the District Courts are vacated and these cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST did not participate in the consideration or decision of these cases.

MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.

Because the Court's opinion and judgment improvidently, in my view, call into question important aspects of the statutes of almost all the States governing secured transactions and the procedure for repossessing personal property, I must dissent for the reasons that follow.

First: It is my view that when the federal actions were filed in these cases and the respective District [98] Courts proceeded to judgment there were state court proceedings in progress. It seems apparent to me that the judgments should be vacated and the District Courts instructed to reconsider these cases in the light of the principles announced in Younger v. Harris, 401 U. S. 37 (1971); Samuels v. Mackell, 401 U. S. 66; Boyle v. Landry, 401 U. S. 77; and Perez v. Ledesma, 401 U. S. 82.

In No. 70-5039, the Florida statutes provide for the commencement of an action of replevin, with bond, by serving a writ summoning the defendant to answer the complaint. Thereupon the sheriff may seize the property, subject to repossession by defendant within three days upon filing of a counterbond, failing which the property is delivered to plaintiff to await final judgment in the replevin action. Fla. Stat. Ann. § 78.01 et seq. (Supp. 1972-1973). This procedure was attacked in a complaint filed by appellant Fuentes in the federal court, alleging that an affidavit in replevin had been filed by Firestone Tire & Rubber Co. in the Small Claims Court of Dade County; that a writ of replevin had been issued pursuant thereto and duly served, together with the affidavit and complaint; and that a trial date had been set in the Small Claims Court. Firestone's answer admitted that the replevin action was pending in the Small Claims Court and asserted that Mrs. Fuentes, plaintiff in the federal court and appellant here, had not denied her default or alleged that she had the right to possession of the property. Clearly, state court proceedings were pending, no bad faith or harassment was alleged, and no irreparable injury appeared that could not have been averted by raising constitutional objections in the pending state court proceeding. In this posture, it would appear that the case should be reconsidered under Younger v. Harris and companion cases, which were announced after the District Court's judgment.

[99] In No. 70-5138, Pennsylvania Rule of Civil Procedure 1073 expressly provides that an "[a]ction of replevin with bond shall be commenced by filing with the prothonotary a praecipe for a writ of replevin with bond . . . ." When the writ issues and is served, the defendant has three days to file a counterbond and should he care to have a hearing he may file his own praecipe, in which event the plaintiff must proceed further in the action by filing and serving his complaint.

In the cases before us, actions in replevin were commenced in accordance with the rules, and appellee Sears, Roebuck & Co. urged in the District Court that plaintiffs had "adequate remedies at law which they could pursue in the state court proceedings which are still pending in accordance with the statutes and rules of Pennsylvania." App. 60. Under Younger v. Harris and companion cases, the District Court's judgment should be vacated and the case reconsidered.

Second: It goes without saying that in the typical installment sale of personal property both seller and buyer have interests in the property until the purchase price is fully paid, the seller early in the transaction often having more at stake than the buyer. Nor is it disputed that the buyer's right to possession is conditioned upon his making the stipulated payments and that upon default the seller is entitled to possession. Finally, there is no question in these cases that if default is disputed by the buyer he has the opportunity for a full hearing, and that if he prevails he may have the property or its full value as damages.

The narrow issue, as the Court notes, is whether it comports with due process to permit the seller, pending final judgment, to take possession of the property through a writ of replevin served by the sheriff without affording the buyer opportunity to insist that the seller establish at a hearing that there is reasonable [100] basis for his claim of default. The interests of the buyer and seller are obviously antagonistic during this interim period: the buyer wants the use of the property pending final judgment; the seller's interest is to prevent further use and deterioration of his security. By the Florida and Pennsylvania laws the property is to all intents and purposes placed in custody and immobilized during this time. The buyer loses use of the property temporarily but is protected against loss; the seller is protected against deterioration of the property but must undertake by bond to make the buyer whole in the event the latter prevails.

In considering whether this resolution of conflicting interests is unconstitutional, much depends on one's perceptions of the practical considerations involved. The Court holds it constitutionally essential to afford opportunity for a probable-cause hearing prior to repossession. Its stated purpose is "to prevent unfair and mistaken deprivations of property." But in these typical situations, the buyer-debtor has either defaulted or he has not. If there is a default, it would seem not only "fair," but essential, that the creditor be allowed to repossess; and I cannot say that the likelihood of a mistaken claim of default is sufficiently real or recurring to justify a broad constitutional requirement that a creditor do more than the typical state law requires and permits him to do. Sellers are normally in the business of selling and collecting the price for their merchandise. I could be quite wrong, but it would not seem in the creditor's interest for a default occasioning repossession to occur; as a practical matter it would much better serve his interests if the transaction goes forward and is completed as planned. Dollar-and-cents considerations weigh heavily against false claims of default as well as against precipitate action that would allow no opportunity for mistakes to surface and be [101] corrected.^[35] Nor does it seem to me that creditors would lightly undertake the expense of instituting replevin actions and putting up bonds.

The Court relies on prior cases, particularly Goldberg v. Kelly, 397 U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971); and Stanley v. Illinois, 405 U. S. 645 (1972). But these cases provide no automatic test for determining whether and when due process of law requires adversary proceedings. Indeed, "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. . . ." "[W]hat procedures due process may require under any given set of circumstances must begin [102] with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). See also Stanley v. Illinois, supra, at 650; Goldberg v. Kelly, supra, at 263. Viewing the issue before us in this light, I would not construe the Due Process Clause to require the creditors to do more than they have done in these cases to secure possession pending final hearing. Certainly, I would not ignore, as the Court does, the creditor's interest in preventing further use and deterioration of the property in which he has substantial interest. Surely under the Court's own definition, the creditor has a "property" interest as deserving of protection as that of the debtor. At least the debtor, who is very likely uninterested in a speedy resolution that could terminate his use of the property, should be required to make those payments, into court or otherwise, upon which his right to possession is conditioned. Cf. Lindsey v. Normet, 405 U. S. 56 (1972).

Third: The Court's rhetoric is seductive, but in end analysis, the result it reaches will have little impact and represents no more than ideological tinkering with state law. It would appear that creditors could withstand attack under today's opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all. Alternatively, they need only give a few days' notice of a hearing, take possession if hearing is waived or if there is default; and if hearing is necessary merely establish probable cause for asserting that default has occurred. It is very doubtful in my mind that such a hearing would in fact result in protections for the debtor substantially different from those the present laws provide. [103] On the contrary, the availability of credit may well be diminished or, in any event, the expense of securing it increased.

None of this seems worth the candle to me. The procedure that the Court strikes down is not some barbaric hangover from bygone days. The respective rights of the parties in secured transactions have undergone the most intensive analysis in recent years. The Uniform Commercial Code, which now so pervasively governs the subject matter with which it deals, provides in Art. 9, § 9-503, that:

"Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. . . ."

Recent studies have suggested no changes in Art. 9 in this respect. See Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Article 9 of the Uniform Commercial Code, Final Report, § 9-503 (April 25, 1971). I am content to rest on the judgment of those who have wrestled with these problems so long and often and upon the judgment of the legislatures that have considered and so recently adopted provisions that contemplate precisely what has happened in these cases.

[1] Together with No. 70-5138, Parham et al. v. Cortese et al., on appeal from the United States District Court for the Eastern District of Pennsylvania.

[2] See infra, at 73-75.

[3] Both Mrs. Fuentes and the appellants in No. 5138 also challenged the prejudgment replevin procedures under the Fourth Amendment, made applicable to the States by the Fourteenth. We do not, however, reach that issue. See n. 32, infra.

[4] Neither Mrs. Fuentes nor the appellants in No. 5138 sought an injunction against any pending or future court proceedings as such. Compare Younger v. Harris, 401 U. S. 37. Rather, they challenged only the summary extra-judicial process of prejudgment seizure of property to which they had already been subjected. They invoked the jurisdiction of the federal district courts under 42 U. S. C. § 1983 and 28 U. S. C. § 1343 (3).

[5] Unlike Mrs. Fuentes in No. 5039, none of the appellants in No. 5138 was ever sued in any court by the party who initiated seizure of the property. See infra, at 77-78.

[6] Since the announcement of this Court's decision in Sniadach v. Family Finance Corp., 395 U. S. 337, summary prejudgment remedies have come under constitutional challenge throughout the country. The summary deprivation of property under statutes very similar to the Florida and Pennsylvania statutes at issue here has been held unconstitutional by at least two courts. Laprease v. Raymours Furniture Co., 315 F. Supp. 716 (NDNY); Blair v. Pitchess, 5 Cal. 3d 258, 486 P. 2d 1242. But see Brunswick Corp. v. J. & P., Inc., 424 F. 2d 100 (CA10); Wheeler v. Adams Co., 322 F. Supp. 645 (Md.); Almor Furniture & Appliances, Inc. v. MacMillan, 116 N. J. Super. 65, 280 A. 2d 862. Applying Sniadach to other closely related forms of summary prejudgment remedies, some courts have construed that decision as setting forth general principles of procedural due process and have struck down such remedies. E. g., Adams v. Egley, 338 F. Supp. 614 (SD Cal.); Collins v. The Viceroy Hotel Corp., 338 F. Supp. 390 (ND Ill.); Santiago v. McElroy, 319 F. Supp. 284 (ED Pa.); Klim v. Jones, 315 F. Supp. 109 (ND Cal.); Randone v. Appellate Dept., 5 Cal. 3d 536, 488 P. 2d 13; Larson v. Fetherston, 44 Wis. 2d 712, 172 N. W. 2d 20; Jones Press Inc. v. Motor Travel Services Inc., 286 Minn. 205, 176 N. W. 2d 87. See Lebowitz v. Forbes Leasing & Finance Corp., 326 F. Supp. 1335, 1341-1348 (ED Pa.). Other courts, however, have construed Sniadach as closely confined to its own facts and have upheld such summary prejudgment remedies. E. g., Reeves v. Motor Contract Co., 324 F. Supp. 1011 (ND Ga.); Black Watch Farms v. Dick, 323 F. Supp. 100 (Conn.); American Olean Tile Co. v. Zimmerman, 317 F. Supp. 150 (Hawaii); Young v. Ridley, 309 F. Supp. 1308 (DC); Termplan, Inc. v. Superior Court of Maricopa County, 105 Ariz. 270, 463 P. 2d 68; 300 West 154th Street Realty Co. v. Department of Buildings, 26 N. Y. 2d 538, 260 N. E. 2d 534.

[7] The relevant Florida statutory provisions are the following:

Fla. Stat. Ann. § 78.01 (Supp. 1972-1973):

"Right to replevin.—Any person whose goods or chattels are wrongfully detained by any other person or officer may have a writ of replevin to recover them and any damages sustained by reason of the wrongful caption or detention as herein provided. Or such person may seek like relief, but with summons to defendant instead of replevy writ in which event no bond is required and the property shall be seized only after judgment, such judgment to be in like form as that provided when defendant has retaken the property on a forthcoming bond."

Fla. Stat. Ann. § 78.07 (Supp. 1972-1973):

"Bond; Requisites.—Before a replevy writ issues, plaintiff shall file a bond with surety payable to defendant to be approved by the clerk in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay and that if defendant recovers judgment against him in the action, he will return the property, if return thereof is adjudged, and will pay defendant all sums of money recovered against plaintiff by defendant in the action."

Fla. Stat. Ann. § 78.08 (Supp. 1972-1973):

"Writ; form; return.—The writ shall command the officer to whom it may be directed to replevy the goods and chattels in possession of defendant, describing them, and to summon the defendant to answer the complaint."

Fla. Stat. Ann. § 78.10 (Supp. 1972-1973):

"Writ; execution on property in buildings, etc.—In executing the writ of replevin, if the property or any part thereof is secreted or concealed in any dwelling house or other building or enclosure, the officer shall publicly demand delivery thereof and if it is not delivered by the defendant or some other person, he shall cause such house, building or enclosure to be broken open and shall make replevin according to the writ; and if necessary, he shall take to his assistance the power of the county."

Fla. Stat. Ann. § 78.13 (Supp. 1972-1973):

"Writ; disposition of property levied on.—The officer executing the writ shall deliver the property to plaintiff after the lapse of three (3) days from the time the property was taken unless within the three (3) days defendant gives bond with surety to be approved by the officer in double the value of the property as appraised by the officer, conditioned to have the property forthcoming to abide the result of the action, in which event the property shall be redelivered to defendant."

[8] The basic Pennsylvania statutory provision regarding the issuance of writs of replevin is the following:

Pa. Stat. Ann., Tit. 12, § 1821. Writs of replevin authorized

"It shall and may be lawful for the justices of each county in this province to grant writs of replevin, in all cases whatsoever, where replevins may be granted by the laws of England, taking security as the said law directs, and make them returnable to the respective courts of common pleas, in the proper county, there to be determined according to law."

The procedural prerequisites to issuance of a prejudgment writ are, however, set forth in the Pennsylvania Rules of Civil Procedure. The relevant rules are the following:

"Rule 1073. Commencement of Action

"(a) An action of replevin with bond shall be commenced by filing with the prothonotary a praecipe for a writ of replevin with bond, together with

"(1) the plaintiff's affidavit of the value of the property to be replevied, and

"(2) the plaintiff's bond in double the value of the property, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that if the plaintiff fails to maintain his right of possession of the property, he shall pay to the party entitled thereto the value of the property and all legal costs, fees and damages sustained by reason of the issuance of the writ.

"(b) An action of replevin without bond shall be commenced by filing with the prothonotary

"(1) a praecipe for a writ of replevin without bond or

"(2) a complaint.

"If the action is commenced without bond, the sheriff shall not replevy the property but at any time before the entry of judgment the plaintiff, upon filing the affidavit and bond prescribed by subdivision (a) of this rule, may obtain a writ of replevin with bond, issued in the original action, and have the sheriff replevy the property. "Rule 1076. Counterbond

"(a) A counterbond may be filed with the prothonotary by a defendant or intervenor claiming the right to the possession of the property, except a party claiming only a lien thereon, within seventy-two (72) hours after the property has been replevied, or within seventy-two (72) hours after service upon the defendant when the taking of possession of the property by the sheriff has been waived by the plaintiff as provided by Rule 1077 (a), or within such extension of time as may be granted by the court upon cause shown.

"(b) The counterbond shall be in the same amount as the original bond, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that if the party filing it fails to maintain his right to possession of the property he shall pay to the party entitled thereto the value of the property, and all legal costs, fees and damages sustained by reason of the delivery of the replevied property to the party filing the counterbond.

"Rule 1077. Disposition of Replevied Property. Sheriff's Return

"(a) When a writ of replevin with bond is issued, the sheriff shall leave the property during the time allowed for the filing of a counterbond in the possession of the defendant or of any other person if the plaintiff so authorizes him in writing.

"(b) Property taken into possession by the sheriff shall be held by him until the expiration of the time for filing a counterbond. If the property is not ordered to be impounded and if no counterbond is filed, the sheriff shall deliver the property to the plaintiff.

"(c) If the property is not ordered to be impounded and the person in possession files a counterbond, the property shall be delivered to him, but if he does not file a counterbond, the property shall be delivered to the party first filing a counterbond.

"(d) When perishable property is replevied the court may make such order relating to its sale or disposition as shall be proper.

"(e) The return of the sheriff to the writ of replevin with bond shall state the disposition made by him of the property and the name and address of any person found in possession of the property."

[9] Pa. Rule Civ. Proc. 1073 (b) does establish a procedure whereby an applicant may obtain a writ by filing a complaint, initiating a later court action. See n. 7, supra. In the case of every appellant in No. 70-5138, the applicant proceeded under Rule 1073 (a) rather than 1073 (b), seizing property under no more than a security bond and initiating no court action.

[10] Pa. Rule Civ. Proc. 1037 (a) establishes the procedure for initiating such a suit:

"If an action is not commenced by a complaint [under Rule 1073 (b)], the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros."

None of the appellants in No. 70-5138 attempted to initiate the process to require the filing of a post-seizure complaint under Rule 1037 (a).

[11] See T. Plucknett, A Concise History of the Common Law 367-369 (1956); 3 W. Holdsworth, History of English Law 284-285 (1927); 2 F. Pollock & F. Maitland, History of English Law 577 (1909); J. Cobbey, Replevin 19-29 (1890).

[12] See Plucknett, supra, n. 10, at 362-365; Pollock & Maitland, supra, n. 10, at 173-175, 203-211.

[13] The creditor could, of course, proceed without the use of state power, through self-help, by "distraining" the property before a judgment. See n. 10, supra.

[14] They may not even test that much. For if an applicant for the writ knows that he is dealing with an uneducated, uninformed consumer with little access to legal help and little familiarity with legal procedures, there may be a substantial possibility that a summary seizure of property—however unwarranted—may go unchallenged, and the applicant may feel that he can act with impunity.

[15] The appellants argue that this opportunity for quick recovery exists only in theory. They allege that very few people in their position are able to obtain a recovery bond, even if they know of the possibility. Appellant Fuentes says that in her case she was never told that she could recover the stove and stereo and that the deputy sheriff seizing them gave them at once to the Firestone agent, rather than holding them for three days. She further asserts that of 442 cases of prejudgment replevin in small-claims courts in Dade County, Florida, in 1969, there was not one case in which the defendant took advantage of the recovery provision.

[16] Bell v. Burson, 402 U. S. 535, 536. Although not mentioned in the Sniadach opinion, there clearly was a quick-recovery provision in the Wisconsin prejudgment garnishment statute at issue. Wis. Stat. Ann. § 267.21 (1) (Supp. 1970-1971). Family Finance Corp. v. Sniadach,37 Wis. 2d 163, 173-174, 154 N. W. 2d 259, 265. Mr. Justice Harlan adverted to the recovery provision in his concurring opinion. 395 U. S., at 343.

These sorts of provisions for recovery of property by posting security are, of course, entirely different from the security requirement upheld in Lindsey v. Normet, 405 U. S. 56, 65. There, the Court upheld a requirement that a tenant wanting a continuance of an eviction hearing must post security for accruing rent during the continuance. The tenant did not have to post security in order to remain in possession before a hearing; rather, he had to post security only in order to obtain a continuance of the hearing. Moreover, the security requirement in Lindsey was not a recovery provision. For the tenant was not deprived of his possessory interest even for one day without opportunity for a hearing.

[17] The possessory interest of Rosa Washington, an appellant in No. 5138, in her son's clothes, furniture, and toys was no less sufficient to invoke due process safeguards. Her interest was not protected by contract. Rather, it was protected by ordinary property law, there being a dispute between her and her estranged husband over which of them had a legal right not only to custody of the child but also to possession of the chattels.

[18] Mrs. Fuentes argues that Florida law allows her to defend on the ground that Firestone breached its obligations under the sales contract by failing to repair serious defects in the stove it sold her. We need not consider this issue here. It is enough that the right to continued possession of the goods was open to some dispute at a hearing since the sellers of the goods had to show, at the least, that the appellants had defaulted in their payments.

[19] The issues decisive of the ultimate right to continued possession, of course, may be quite simple. The simplicity of the issues might be relevant to the formality or scheduling of a prior hearing. See Lindsey v. Normet, 405 U. S., at 65. But it certainly cannot undercut the right to a prior hearing of some kind.

[20] The Supreme Court of California recently put the matter accurately: "Sniadach does not mark a radical departure in constitutional adjudication. It is not a rivulet of wage garnishment but part of the mainstream of the past procedural due process decisions of the United States Supreme Court." Randone v. Appellate Dept., 5 Cal. 3d 536, 550, 488 P. 2d 13, 22.

[21] Sniadach v. Family Finance Corp., supra, at 340; Goldberg v. Kelly, 397 U. S. 254, 264. Of course, the primary issue in Goldberg was the form of hearing demanded by due process before termination of welfare benefits; the importance of welfare was directly relevant to that question.

[22] The relative weight of liberty or property interest is relevant, of course, to the form of notice and hearing required by due process. See, e. g., Boddie v. Connecticut, 401 U. S. 371, 378, and cases cited therein. But some form of notice and hearing—formal or informal— is required before deprivation of a property interest that "cannot be characterized as de minimis." Sniadach v. Family Finance Corp., supra, at 342 (Harlan, J., concurring).

[23] A prior hearing always imposes some costs in time, effort, and expense, and it is often more efficient to dispense with the opportunity for such a hearing. But these rather ordinary costs cannot outweigh the constitutional right. See Bell v. Burson, supra, at 540-541; Goldberg v. Kelly, supra,at 261. Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken.

"The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones." Stanley v. Illinois, 405 U. S. 645, 656.

[24] Of course, outright seizure of property is not the only kind of deprivation that must be preceded by a prior hearing. See, e. g., Sniadach v. Family Finance Corp., supra. In three cases, the Court has allowed the attachment of property without a prior hearing. In one, the attachment was necessary to protect the public against the same sort of immediate harm involved in the seizure cases— a bank failure. Coffin Bros. & Co. v. Bennett, 277 U. S. 29. Another case involved attachment necessary to secure jurisdiction in state court—clearly a most basic and important public interest. Ownbey v. Morgan, 256 U. S. 94. It is much less clear what interests were involved in the third case, decided with an unexplicated per curiam opinion simply citing Coffin Bros. and Ownbey. Mckay v. McInnes, 279 U. S. 820. As far as essential procedural due process doctrine goes, McKay cannot stand for any more than was established in the Coffin Bros. and Ownbey cases on which it relied completely. See Sniadach v. Family Finance Corp., supra, at 340; id.,at 344 (Harlan, J., concurring).

In cases involving deprivation of other interests, such as government employment, the Court similarly has required an unusually important governmental need to outweigh the right to a prior hearing. See, e. g., Cafeteria Workers v. McElroy, 367 U. S. 886, 895-896.

Seizure under a search warrant is quite a different matter, see n. 30, infra.

[25] Phillips v. Commissioner, 283 U. S. 589. The Court stated that "[d]elay in the judicial determination of property rights is not uncommon where it is essential that governmental needs be immediately satisfied." Id., at 597 (emphasis supplied). The Court, then relied on "the need of the government promptly to secure its revenues." Id., at 596.

[26] Central Union Trust Co. v. Garvan, 254 U. S. 554, 566; Stoehr v. Wallace, 255 U. S. 239, 245; United States v. Pfitsch, 256 U. S. 547, 553.

[27] Fahey v. Mallonee, 332 U. S. 245.

[28] Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594.

[29] North American Storage Co. v. Chicago, 211 U. S. 306.

[30] By allowing repossession without an opportunity for a prior hearing, the Florida and Pennsylvania statutes may be intended specifically to reduce the costs for the private party seeking to seize goods in another party's possession. Even if the private gain at stake in repossession actions were equal to the great public interests recognized in this Court's past decisions, see nn. 24-28, supra, the Court has made clear that the avoidance of the ordinary costs imposed by the opportunity for a hearing is not sufficient to override the constitutional right. See n. 22, supra. The appellees argue that the cost of holding hearings may be especially onerous in the context of the creditor-debtor relationship. But the Court's holding in Sniadach v. Family Finance Corp., supra,indisputably demonstrates that ordinary hearing costs are no more able to override due process rights in the creditor-debtor context than in other contexts.

In any event, the aggregate cost of an opportunity to be heard before repossession should not be exaggerated. For we deal here only with the right to an opportunity to be heard. Since the issues and facts decisive of rights in repossession suits may very often be quite simple, there is a likelihood that many defendants would forgo their opportunity, sensing the futility of the exercise in the particular case. And, of course, no hearing need be held unless the defendant, having received notice of his opportunity, takes advantage of it.

[31] The seizure of possessions under a writ of replevin is entirely different from the seizure of possessions under a search warrant. First, a search warrant is generally issued to serve a highly important governmental need—e. g., the apprehension and conviction of criminals—rather than the mere private advantage of a private party in an economic transaction. Second, a search warrant is generally issued in situations demanding prompt action. The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice. Third, the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party. It guarantees that the State will not abdicate control over the issuance of warrants and that no warrant will be issued without a prior showing of probable cause. Thus, our decision today in no way implies that there must be opportunity for an adversary hearing before a search warrant is issued. But cf. A Quantity of Books v. Kansas, 378 U. S. 205.

[32] See Brady v. United States, 397 U. S. 742, 748; Johnson v. Zerbst, 304 U. S. 458, 464. In the civil area, the Court has said that "[w]e do not presume acquiescence in the loss of fundamental rights," Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U. S. 292, 307. Indeed, in the civil no less than the criminal area, "courts indulge every reasonable presumption against waiver." Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 393.

[33] We do not reach the appellants' argument that the Florida and Pennsylvania statutory procedures violate the Fourth Amendment, made applicable to the States by the Fourteenth. See n. 2, supra. For once a prior hearing is required, at which the applicant for a writ must establish the probable validity of his claim for repossession, the Fourth Amendment problem may well be obviated. There is no need for us to decide that question at this point.

[34] Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing in preventing seizures of goods where the party seeking the writ has little probability of succeeding on the merits of the dispute.

[35] Appellants Paul and Ellen Parham admitted in their complaints that they were delinquent in their payments. They stipulated to this effect as well as to receipt of notices of delinquency prior to institution of the replevin action, and the District Court so found.

Appellant Epps alleged in his complaint that he was not in default. The defendant, Government Employees Exchange Corp., answered that Epps was in default in the amount of $311.25 as of August 9, 1970, that the entire sum due had been demanded in accordance with the relevant documents, and that Epps had failed and refused to pay that sum. The District Court did not resolve this factual dispute. It did find that Epps earned in excess of $10,000 per year and that the agreements Epps and Parham entered into complied with the provisions of Pennsylvania's Uniform Commercial Code and its Services and Installment Sales Act.

As for appellant Rosa Washington, the District Court, based on the allegations of her complaint, entered a temporary restraining order requiring that the property seized from her be returned forthwith. At a subsequent hearing the order was dissolved, the court finding "that the representations upon which the temporary restraining order of September 18, 1970, issued were incorrect, both as to allegations contained in the complaint and representations made by counsel." (App. 29.)

It was stipulated between appellant Fuentes and defendants in the District Court that Mrs. Fuentes was in default at the time the replevin action was filed and that notices to this effect were sent to her over several months prior to institution of the suit. (App. 25-26.)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[4] Henry S. Cohn, Assistant Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Clarine Nardi Riddle, Attorney General, Arnold B. Feigin and Carolyn K. Querijero, Assistant Attorneys General, and Andrew M. Calamari.

Joanne S. Faulkner argued the cause for respondent. With her on the brief were Brian Wolfman and Alan B. Morrison.^[1]

JUSTICE WHITE delivered an opinion, Parts I, II, and III of which are the opinion of the Court.^[2]

This case requires us to determine whether a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond, satisfies the Due Process Clause of the Fourteenth Amendment. We hold that, as applied to this case, it does not.

[5] I

On March 15, 1988, petitioner John F. DiGiovanni submitted an application to the Connecticut Superior Court for an attachment in the amount of $75,000 on respondent Brian K. Doehr's home in Meriden, Connecticut. DiGiovanni took this step in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr in the same court. The suit did not involve Doehr's real estate, nor did DiGiovanni have any pre-existing interest either in Doehr's home or any of his other property.

Connecticut law authorizes prejudgment attachment of real estate without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to the attachment. The State's prejudgment remedy statute provides, in relevant part:

"The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claims and (1) that the prejudgment remedy requested is for an attachment of real property . . . ." Conn. Gen. Stat. § 52-278e (1991).^[3]

[6] The statute does not require the plaintiff to post a bond to insure the payment of damages that the defendant may suffer should the attachment prove wrongfully issued or the claim prove unsuccessful.

As required, DiGiovanni submitted an affidavit in support of his application. In five one-sentence paragraphs, DiGiovanni stated that the facts set forth in his previously submitted complaint were true; that "I was willfully, wantonly and maliciously assaulted by the defendant, Brian K. Doehr"; that "[s]aid assault and battery broke my left wrist and further caused an ecchymosis to my right eye, as well as other injuries"; and that "I have further expended sums of money [7] for medical care and treatment." App. 24A. The affidavit concluded with the statement, "In my opinion, the foregoing facts are sufficient to show that there is probable cause that judgment will be rendered for the plaintiff." Ibid.

On the strength of these submissions the Superior Court Judge, by an order dated March 17, found "probable cause to sustain the validity of the plaintiff's claim" and ordered the attachment on Doehr's home "to the value of $75,000." The sheriff attached the property four days later, on March 21. Only after this did Doehr receive notice of the attachment. He also had yet to be served with the complaint, which is ordinarily necessary for an action to commence in Connecticut. Young v. Margiotta, 136 Conn. 429, 433, 71 A. 2d 924, 926 (1950). As the statute further required, the attachment notice informed Doehr that he had the right to a hearing: (1) to claim that no probable cause existed to sustain the claim; (2) to request that the attachment be vacated, modified, or dismissed or that a bond be substituted; or (3) to claim that some portion of the property was exempt from execution. Conn. Gen. Stat. § 52-278e(b) (1991).

Rather than pursue these options, Doehr filed suit against DiGiovanni in Federal District Court, claiming that § 52-278e (a)(1) was unconstitutional under the Due Process Clause of the Fourteenth Amendment.^[4] The District Court upheld the statute and granted summary judgment in favor of DiGiovanni. Pinsky v. Duncan, 716 F. Supp. 58 (Conn. 1989). On appeal, a divided panel of the United States Court of Appeals for the Second Circuit reversed. Pinsky v. Duncan, 898 F. 2d 852 (1990).^[5] Judge Pratt, who wrote the opinion [8] for the court, concluded that the Connecticut statute violated due process in permitting ex parte attachment absent a showing of extraordinary circumstances. "The rule to be derived from Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969), and its progeny, therefore, is not that postattachment hearings are generally acceptable provided that plaintiff files a factual affidavit and that a judicial officer supervises the process, but that a prior hearing may be postponed where exceptional circumstances justify such a delay, and where sufficient additional safeguards are present." Id., at 855. This conclusion was deemed to be consistent with our decision in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974), because the absence of a preattachment hearing was approved in that case based on the presence of extraordinary circumstances.

A further reason to invalidate the statute, the court ruled, was the highly factual nature of the issues in this case. In Mitchell, there were "uncomplicated matters that len[t] themselves to documentary proof" and "[t]he nature of the issues at stake minimize[d] the risk that the writ [would] be wrongfully issued by a judge." Id., at 609-610. Similarly, in Mathews v. Eldridge, 424 U. S. 319, 343-344 (1976), where an evidentiary hearing was not required prior to the termination of disability benefits, the determination of disability was "sharply focused and easily documented." Judge Pratt observed that in contrast the present case involved the fact-specific event of a fist fight and the issue of assault. He doubted that the judge could reliably determine probable cause when presented with only the plaintiff's version of the altercation. "Because the risk of a wrongful attachment is considerable under these circumstances, we conclude that dispensing with notice and opportunity for a hearing until after the attachment, without a showing of extraordinary circumstances, violates the requirements of due process." 898 F. 2d, at 856. Judge Pratt went on to conclude that in his view, the statute was also constitutionally infirm for its failure [9] to require the plaintiff to post a bond for the protection of the defendant in the event the attachment was ultimately found to have been improvident.

Judge Mahoney was also of the opinion that the statutory provision for attaching real property in civil actions, without a prior hearing and in the absence of extraordinary circumstances, was unconstitutional. He disagreed with Judge Pratt's opinion that a bond was constitutionally required. Judge Newman dissented from the holding that a hearing prior to attachment was constitutionally required and, like Judge Mahoney, disagreed with Judge Pratt on the necessity for a bond.

The dissent's conclusion accorded with the views of the Connecticut Supreme Court, which had previously upheld § 52-278e(b) in Fermont Division, Dynamics Corp. of America v. Smith, 178 Conn. 393, 423 A. 2d 80 (1979). We granted certiorari to resolve the conflict of authority. 498 U. S. 809 (1990).

II

With this case we return to the question of what process must be afforded by a state statute enabling an individual to enlist the aid of the State to deprive another of his or her property by means of the prejudgment attachment or similar procedure. Our cases reflect the numerous variations this type of remedy can entail. In Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969), the Court struck down a Wisconsin statute that permitted a creditor to effect prejudgment garnishment of wages without notice and prior hearing to the wage earner. In Fuentes v. Shevin, 407 U. S. 67 (1972), the Court likewise found a due process violation in state replevin provisions that permitted vendors to have goods seized through an ex parte application to a court clerk and the posting of a bond. Conversely, the Court upheld a Louisiana ex parte procedure allowing a lienholder to have disputed goods sequestered in Mitchell v. W. T. Grant Co., supra. Mitchell, however, carefully noted that Fuentes was [10] decided against "a factual and legal background sufficiently different . . . that it does not require the invalidation of the Louisiana sequestration statute." Id., at 615. Those differences included Louisiana's provision of an immediate postdeprivation hearing along with the option of damages; the requirement that a judge rather than a clerk determine that there is a clear showing of entitlement to the writ; the necessity for a detailed affidavit; and an emphasis on the lienholder's interest in preventing waste or alienation of the encumbered property. Id., at 615-618. In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975), the Court again invalidated an ex parte garnishment statute that not only failed to provide for notice and prior hearing but also failed to require a bond, a detailed affidavit setting out the claim, the determination of a neutral magistrate, or a prompt postdeprivation hearing. Id., at 606-608.

These cases "underscore the truism that `"[d]ue process," unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.'" Mathews v. Eldridge, supra, at 334 (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961)). In Mathews, we drew upon our prejudgment remedy decisions to determine what process is due when the government itself seeks to effect a deprivation on its own initiative. 424 U. S., at 334. That analysis resulted in the now familiar threefold inquiry requiring consideration of "the private interest that will be affected by the official action"; "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards"; and lastly "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335.

Here the inquiry is similar, but the focus is different. Prejudgment remedy statutes ordinarily apply to disputes between private parties rather than between an individual and [11] the government. Such enactments are designed to enable one of the parties to "make use of state procedures with the overt, significant assistance of state officials," and they undoubtedly involve state action "substantial enough to implicate the Due Process Clause." Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 486 (1988). Nonetheless, any burden that increasing procedural safeguards entails primarily affects not the government, but the party seeking control of the other's property. See Fuentes v. Shevin, supra, at 99-101 (WHITE, J., dissenting). For this type of case, therefore, the relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.

We now consider the Mathews factors in determining the adequacy of the procedures before us, first with regard to the safeguards of notice and a prior hearing, and then in relation to the protection of a bond.

III

We agree with the Court of Appeals that the property interests that attachment affects are significant. For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. Nor does Connecticut deny that any of these consequences occurs.

[12] Instead, the State correctly points out that these effects do not amount to a complete, physical, or permanent deprivation of real property; their impact is less than the perhaps temporary total deprivation of household goods or wages. See Sniadach, supra, at 340; Mitchell, 416 U. S., at 613. But the Court has never held that only such extreme deprivations trigger due process concern. See Buchanan v. Warley, 245 U. S. 60, 74 (1917). To the contrary, our cases show that even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection. Without doubt, state procedures for creating and enforcing attachments, as with liens, "are subject to the strictures of due process." Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 85 (1988) (citing Mitchell, supra, at 604; Hodge v. Muscatine County, 196 U. S. 276, 281 (1905)).^[6]

We also agree with the Court of Appeals that the risk of erroneous deprivation that the State permits here is substantial. By definition, attachment statutes premise a deprivation of property on one ultimate factual contingency—the award of damages to the plaintiff which the defendant may not be able to satisfy. See Ownbey v. Morgan, 256 U. S. 94, 104-105 (1921); R. Thompson & J. Sebert, Remedies: Damages, Equity and Restitution § 5.01 (1983). For attachments [13] before judgment, Connecticut mandates that this determination be made by means of a procedural inquiry that asks whether "there is probable cause to sustain the validity of the plaintiff's claim." Conn. Gen. Stat. § 52-278e(a) (1991). The statute elsewhere defines the validity of the claim in terms of the likelihood "that judgment will be rendered in the matter in favor of the plaintiff." Conn. Gen. Stat. § 52-278c(a)(2) (1991); Ledgebrook Condominium Assn. v. Lusk Corp., 172 Conn. 577, 584, 376 A. 2d 60, 63-64 (1977). What probable cause means in this context, however, remains obscure. The State initially took the position, as did the dissent below, that the statute requires a plaintiff to show the objective likelihood of the suit's success. Brief for Petitioners 12; Pinsky, 898 F. 2d, at 861-862 (Newman, J., dissenting). Doehr, citing ambiguous state cases, reads the provision as requiring no more than that a plaintiff demonstrate a subjective good-faith belief that the suit will succeed. Brief for Respondent 25-26. Ledgebrook Condominium Assn., supra, at 584, 376 A. 2d, at 63-64; Anderson v. Nedovich, 19 Conn. App. 85, 88, 561 A. 2d 948, 949 (1989). At oral argument, the State shifted its position to argue that the statute requires something akin to the plaintiff stating a claim with sufficient facts to survive a motion to dismiss.

We need not resolve this confusion since the statute presents too great a risk of erroneous deprivation under any of these interpretations. If the statute demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff's good-faith belief that the complaint is sufficient, requirement of a complaint and a factual affidavit would permit a court to make these minimal determinations. But neither inquiry adequately reduces the risk of erroneous deprivation. Permitting a court to authorize attachment merely because the plaintiff believes the defendant is liable, or because the plaintiff can make out a facially valid complaint, would permit the deprivation of the defendant's property when the claim would fail to convince a jury, when it rested on factual allegations [14] that were sufficient to state a cause of action but which the defendant would dispute, or in the case of a mere good-faith standard, even when the complaint failed to state a claim upon which relief could be granted. The potential for unwarranted attachment in these situations is self-evident and too great to satisfy the requirements of due process absent any countervailing consideration.

Even if the provision requires the plaintiff to demonstrate, and the judge to find, probable cause to believe that judgment will be rendered in favor of the plaintiff, the risk of error was substantial in this case. As the record shows, and as the State concedes, only a skeletal affidavit need be, and was, filed. The State urges that the reviewing judge normally reviews the complaint as well, but concedes that the complaint may also be conclusory. It is self-evident that the judge could make no realistic assessment concerning the likelihood of an action's success based upon these one-sided, self-serving, and conclusory submissions. And as the Court of Appeals said, in a case like this involving an alleged assault, even a detailed affidavit would give only the plaintiff's version of the confrontation. Unlike determining the existence of a debt or delinquent payments, the issue does not concern "ordinarily uncomplicated matters that lend themselves to documentary proof." Mitchell, 416 U. S., at 609. The likelihood of error that results illustrates that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights . . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 170-172 (1951) (Frankfurter, J., concurring).

What safeguards the State does afford do not adequately reduce this risk. Connecticut points out that the statute also provides an "expeditiou[s]" postattachment adversary hearing, [15] § 52-278e(c);^[7] notice for such a hearing, § 52-278e(b); judicial review of an adverse decision, § 52-2781(a); and a double damages action if the original suit is commenced without probable cause, § 52-568(a)(1). Similar considerations were present in Mitchell, where we upheld Louisiana's sequestration statute despite the lack of predeprivation notice and hearing. But in Mitchell, the plaintiff had a vendor's lien to protect, the risk of error was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documentary proof, 416 U. S., at 609-610, and the plaintiff was required to put up a bond. None of these factors diminishing the need for a predeprivation hearing is present in this case. It is true that a later hearing might negate the presence of probable cause, but this would not cure the temporary deprivation that an earlier hearing might have prevented. "The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause." Fuentes, 407 U. S., at 86.

[16] Finally, we conclude that the interests in favor of an ex parte attachment, particularly the interests of the plaintiff, are too minimal to supply such a consideration here. The plaintiff had no existing interest in Doehr's real estate when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action. Yet there was no allegation that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. Our cases have recognized such a properly supported claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. See Mitchell, supra, at 609; Fuentes, supra, at 90-92; Sniadach, 395 U. S., at 339. Absent such allegations, however, the plaintiff's interest in attaching the property does not justify the burdening of Doehr's ownership rights without a hearing to determine the likelihood of recovery.

No interest the government may have affects the analysis. The State's substantive interest in protecting any rights of the plaintiff cannot be any more weighty than those rights themselves. Here the plaintiff's interest is de minimis. Moreover, the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate postdeprivation hearing. Conn. Gen. Stat. §§ 52-278e(b) and (c) (1991); Fermont, 178 Conn., at 397-398, 423 A. 2d, at 83.

Historical and contemporary practices support our analysis. Prejudgment attachment is a remedy unknown at common law. Instead, "it traces its origin to the Custom of London, under which a creditor might attach money or goods of the defendant either in the plaintiff's own hands or in the custody of a third person, by proceedings in the mayor's court or in the sheriff's court." Ownbey, 256 U. S., at 104. Generally speaking, attachment measures in both England and this [17] country had several limitations that reduced the risk of erroneous deprivation which Connecticut permits. Although attachments ordinarily did not require prior notice or a hearing, they were usually authorized only where the defendant had taken or threatened to take some action that would place the satisfaction of the plaintiff's potential award in jeopardy. See C. Drake, Law of Suits by Attachment, §§ 40-82 (1866) (hereinafter Drake); 1 R. Shinn, Attachment and Garnishment § 86 (1896) (hereinafter Shinn). Attachments, moreover, were generally confined to claims by creditors. Drake §§ 9-10; Shinn § 12. As we and the Court of Appeals have noted, disputes between debtors and creditors more readily lend themselves to accurate ex parte assessments of the merits. Tort actions, like the assault and battery claim at issue here, do not. See Mitchell, supra, at 609-610. Finally, as we will discuss below, attachment statutes historically required that the plaintiff post a bond. Drake §§ 114-183; Shinn § 153.

Connecticut's statute appears even more suspect in light of current practice. A survey of state attachment provisions reveals that nearly every State requires either a preattachment hearing, a showing of some exigent circumstance, or both, before permitting an attachment to take place. See Appendix to this opinion. Twenty-seven States, as well as the District of Columbia, permit attachments only when some extraordinary circumstance is present. In such cases, preattachment hearings are not required but postattachment hearings are provided. Ten States permit attachment without the presence of such factors but require prewrit hearings unless one of those factors is shown. Six States limit attachments to extraordinary circumstance cases, but the writ will not issue prior to a hearing unless there is a showing of some even more compelling condition.^[8] Three States always require a [18] preattachment hearing. Only Washington, Connecticut, and Rhode Island authorize attachments without a prior hearing in situations that do not involve any purportedly heightened threat to the plaintiff's interests. Even those States permit ex parte deprivations only in certain types of cases: Rhode Island does so only when the claim is equitable; Connecticut and Washington do so only when real estate is to be attached, and even Washington requires a bond. Conversely, the States for the most part no longer confine attachments to creditor claims. This development, however, only increases the importance of the other limitations.

We do not mean to imply that any given exigency requirement protects an attachment from constitutional attack. Nor do we suggest that the statutory measures we have surveyed are necessarily free of due process problems or other constitutional infirmities in general. We do believe, however, that the procedures of almost all the States confirm our view that the Connecticut provision before us, by failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance, clearly falls short of the demands of due process.

IV

A

Although a majority of the Court does not reach the issue, JUSTICES MARSHALL, STEVENS, O'CONNOR, and I deem it appropriate to consider whether due process also requires the plaintiff to post a bond or other security in addition to requiring a hearing or showing of some exigency.^[9]

[19] As noted, the impairments to property rights that attachments effect merit due process protection. Several consequences can be severe, such as the default of a homeowner's mortgage. In the present context, it need only be added that we have repeatedly recognized the utility of a bond in protecting property rights affected by the mistaken award of prejudgment remedies. Di-Chem, 419 U. S., at 610, 611 (Powell, J., concurring in judgment); id., at 619 (BLACKMUN, J., dissenting); Mitchell, 416 U. S., at 606, n. 8.

Without a bond, at the time of attachment, the danger that these property rights may be wrongfully deprived remains unacceptably high even with such safegnards as a hearing or exigency requirement. The need for a bond is especially apparent where extraordinary circumstances justify an attachment with no more than the plaintiff's ex parte assertion of a claim. We have already discussed how due process tolerates, and the States generally permit, the otherwise impermissible chance of erroneously depriving the defendant in such situations in light of the heightened interest of the plaintiff. Until a postattachment hearing, however, a defendant has no protection against damages sustained where no extraordinary circumstance in fact existed or the plaintiff's likelihood of recovery was nil. Such protection is what a bond can supply. Both the Court and its individual Members have repeatedly found the requirement of a bond to play an essential role in reducing what would have been too great a degree of risk in precisely this type of circumstance. Mitchell, [20] supra, at 610, 619; Di-Chem, 419 U. S., at 613 (Powell, J., concurring in judgment); id., at 619 (BLACKMUN, J., dissenting); Fuentes, 407 U. S., at 101 (WHITE, J., dissenting).

But the need for a bond does not end here. A defendant's property rights remain at undue risk even when there has been an adversarial hearing to determine the plaintiff's likelihood of recovery. At best, a court's initial assessment of each party's case cannot produce more than an educated prediction as to who will win. This is especially true when, as here, the nature of the claim makes any accurate prediction elusive. See Mitchell, supra, at 609-610. In consequence, even a full hearing under a proper probable-cause standard would not prevent many defendants from having title to their homes impaired during the pendency of suits that never result in the contingency that ultimately justifies such impairment, namely, an award to the plaintiff. Attachment measures currently on the books reflect this concern. All but a handful of States require a plaintiff's bond despite also affording a hearing either before, or (for the vast majority, only under extraordinary circumstances) soon after, an attachment takes place. See Appendix to this opinion. Bonds have been a similarly common feature of other prejudgment remedy procedures that we have considered, whether or not these procedures also included a hearing. See Ownbey, 256 U. S., at 101-102, n. 1; Fuentes, supra, at 73, n. 6, 75-76, n. 7, 81-82; Mitchell, supra, at 606, and n. 6; DiChem, supra, at 602-603, n. 1, 608.

The State stresses its double damages remedy for suits that are commenced without probable cause. Conn. Gen. Stat. § 52-568(a)(1).^[10] This remedy, however, fails to make [21] up for the lack of a bond. As an initial matter, the meaning of "probable cause" in this provision is no more clear here than it was in the attachment provision itself. Should the term mean the plaintiff's good faith or the facial adequacy of the complaint, the remedy is clearly insufficient. A defendant who was deprived where there was little or no likelihood that the plaintiff would obtain a judgment could nonetheless recover only by proving some type of fraud or malice or by showing that the plaintiff had failed to state a claim. Problems persist even if the plaintiff's ultimate failure permits recovery. At best a defendant must await a decision on the merits of the plaintiff's complaint, even assuming that a § 52-568(a)(1) action may be brought as a counterclaim. Hydro Air of Connecticut, Inc. v. Versa Technologies, Inc., 99 F. R. D. 111, 113 (Conn. 1983). Settlement, under Connecticut law, precludes seeking the damages remedy, a fact that encourages the use of attachments as a tactical device to pressure an opponent to capitulate. Blake v. Levy, 191 Conn. 257, 464 A. 2d 52 (1983). An attorney's advice that there is probable cause to commence an action constitutes a complete defense, even if the advice was unsound or erroneous. Vandersluis v. Weil, 176 Conn. 353, 361, 407 A. 2d 982, 987 (1978). Finally, there is no guarantee that the original plaintiff will have adequate assets to satisfy an award that the defendant may win.

Nor is there any appreciable interest against a bond requirement. Section 52-278e(a)(1) does not require a plaintiff to show exigent circumstances nor any pre-existing interest in the property facing attachment. A party must show more than the mere existence of a claim before subjecting an opponent to prejudgment proceedings that carry a significant risk of erroneous deprivation. See Mitchell, supra, at 604-609; Fuentes, supra, at 90-92; Sniadach, 395 U. S., at 339.

[22] B

Our foregoing discussion compels the four of us to consider whether a bond excuses the need for a hearing or other safeguards altogether. If a bond is needed to augment the protections afforded by preattachment and postattachment hearings, it arguably follows that a bond renders these safeguards unnecessary. That conclusion is unconvincing, however, for it ignores certain harms that bonds could not undo but that hearings would prevent. The law concerning attachments has rarely, if ever, required defendants to suffer an encumbered title until the case is concluded without any prior opportunity to show that the attachment was unwarranted. Our cases have repeatedly emphasized the importance of providing a prompt postdeprivation hearing at the very least. Mitchell, 416 U. S., at 606; Di-Chem, 419 U. S., at 606-607. Every State but one, moreover, expressly requires a preattachment or postattachment hearing to determine the propriety of an attachment.

The necessity for at least a prompt postattachment hearing is self-evident because the right to be compensated at the end of the case, if the plaintiff loses, for all provable injuries caused by the attachment is inadequate to redress the harm inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a property can neither do so, nor otherwise satisfy that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a child's education, an entrepreneur seeking to start a business on the strength of an otherwise strong credit rating, or simply a homeowner who might face the disruption of having a mortgage placed in technical default. The extent of these harms, moreover, grows with the length of the suit. Here, oral argument indicated that civil suits in Connecticut commonly take up to four to seven years for completion. Tr. of Oral Arg. 44. Many state attachment statutes require [23] that the amount of a bond be anywhere from the equivalent to twice the amount the plaintiff seeks. See, e. g., Utah Rule of Civ. Proc. 64C(b). These amounts bear no relation to the harm the defendant might suffer even assuming that money damages can make up for the foregoing disruptions. It should be clear, however, that such an assumption is fundamentally flawed. Reliance on a bond does not sufficiently account for the harms that flow from an erroneous attachment to excuse a State from reducing that risk by means of a timely hearing.

If a bond cannot serve to dispense with a hearing immediately after attachment, neither is it sufficient basis for not providing a preattachment hearing in the absence of exigent circumstances even if in any event a hearing would be provided a few days later. The reasons are the same: a wrongful attachment can inflict injury that will not fully be redressed by recovery on the bond after a prompt postattachment hearing determines that the attachment was invalid.

Once more, history and contemporary practices support our conclusion. Historically, attachments would not issue without a showing of extraordinary circumstances even though a plaintiff bond was almost invariably required in addition. Drake §§ 4, 114; Shinn §§ 86, 153. Likewise, all but eight States currently require the posting of a bond. Out of this 42-State majority, all but one requires a preattachment hearing, a showing of some exigency, or both, and all but one expressly require a postattachment hearing when an attachment has been issued ex parte. See Appendix to this opinion. This testimony underscores the point that neither a hearing nor an extraordinary circumstance limitation eliminates the need for a bond, no more than a bond allows waiver of these other protections. To reconcile the interests of the defendant and the plaintiff accurately, due process generally requires all of the above.

[24] V

Because Connecticut's prejudgment remedy provision, Conn. Gen. Stat. § 52-278e(a)(1), violates the requirements of due process by authorizing prejudgment attachment without prior notice or a hearing, the judgment of the Court of Appeals is affirmed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

Prejudgment Attachment Statutes

-----------------------------------------------------------------------------------------------                                    Attachment                  Preattach.       Only in Exigent   Preattach.                  Hrg. Required       Circs.;        Hrg. Even in                 Unless Exigent     No Preattach.    Most Exigent    Bond       Postattach.                    Circs.          Hrg. Required       Circs.      Required   Hrg. Required-----------------------------------------------------------------------------------------------Alabama                                   X                            X            XAlaska               Preattachment hrg. always required.               XArizona              X                                                 X            XArkansas                                  X                            X            XCalifornia           X                                                 X            XColorado                                  X                            X            XConnecticut          X (or unless attachment of real estate)                        XDelaware                                  X                            X            XDC                                        X                            X            XFlorida                                   X                            X            XGeorgia                                   X                            X            XHawaii               Preattachment hrg. always required.               X            XIdaho                X                                                 X            XIllinois                                  X                            X            XIndiana                                   X                            X            XIowa                                      X                            X            XKansas                                    X                            X            XKentucky                                                 X             XLouisiana                                 X                            X            X

 [25] Maine                X                                                              XMaryland                                  X                            X            XMassachusetts        X                                                 X/O1         XMichigan                                  X                                         XMinnesota                                                X             X            XMississippi                               X                            X            XMissouri                                  X                            X            XMontana                                   X                            X            XNebraska                                  X                            X            XNevada               X                                                 X            XNew Hampshire        X                                                              XNew Jersey           X                                                 X/O          XNew Mexico                                X                            X            XNew York                                  X                            X            XNorth Carolina                            X                            X            XNorth Dakota                              X                            X            XOhio                                                     X             X            XOklahoma             X                                                 X            XOregon               Preattachment hrg. always required.               XPennsylvania         Rescinded in light of 530 F. 2d 1123 (CA3 1976).Rhode Island         X (but not if equitable claim)                    X/OSouth Carolina                            X                            X            XSouth Dakota                              X                            X            XTennessee                                 X                            X            X2Texas                                                    X             X            XUtah                                                     X             X            XVermont              X                                                              X1. An "X/O" in the "Bond Required" column indicates that a bond may berequired at the discretion of the court.2. The court may, under certain circumstances, quash the attachment atthe defendant's request without a hearing.

 [26] Virginia                                  X                            X            XWashington                                               X             X3      X                                          (except for real estate on a contract claim)West Virginia                             X                            X            XWisconsin                                 X                            X            XWyoming                                                  X             X            X-----------------------------------------------------------------------------------------------3. A bond is required except in situations in which the plaintiff seeks toattach the real property of a defendant who, after diligent efforts, cannotbe served.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE BLACKMUN joins, concurring in part and concurring in the judgment.

I agree with the Court that the Connecticut attachment statute, "as applied to this case," ante, at 4, fails to satisfy the Due Process Clause of the Fourteenth Amendment. I therefore join Parts I, II, and III of its opinion. Unfortunately, the remainder of the opinion does not confine itself to the facts of this case, but enters upon a lengthy disquisition as to what combination of safeguards are required to satisfy due process in hypothetical cases not before the Court. I therefore do not join Part IV.

As the Court's opinion points out, the Connecticut statute allows attachment not merely for a creditor's claim, but for a tort claim of assault and battery; it affords no opportunity for a predeprivation hearing; it contains no requirement that there be "exigent circumstances," such as an effort on the part of the defendant to conceal assets; no bond is required from the plaintiff; and the property attached is one in which the plaintiff has no pre-existing interest. The Court's opinion [27] is, in my view, ultimately correct when it bases its holding of unconstitutionality of the Connecticut statute as applied here on our cases of Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972), Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975). But I do not believe that the result follows so inexorably as the Court's opinion suggests. All of the cited cases dealt with personalty—bank deposits or chattels —and each involved the physical seizure of the property itself, so that the defendant was deprived of its use. These cases, which represented something of a revolution in the jurisprudence of procedural due process, placed substantial limits on the methods by which creditors could obtain a lien on the assets of a debtor prior to judgment. But in all of them the debtor was deprived of the use and possession of the property. In the present case, on the other hand, Connecticut's prejudgment attachment on real property statute, which secures an incipient lien for the plaintiff, does not deprive the defendant of the use or possession of the property.

The Court's opinion therefore breaks new ground, and I would point out, more emphatically than the Court does, the limits of today's holding. In Spielman-Fond, Inc. v. Hanson's, Inc., 379 F. Supp. 997, 999 (Ariz. 1973), the District Court held that the filing of a mechanics' lien did not cause the deprivation of a significant property interest of the owner. We summarily affirmed that decision. 417 U. S. 901 (1974). Other courts have read this summary affirmance to mean that the mere imposition of a lien on real property, which does not disturb the owner's use or enjoyment of the property, is not a deprivation of property calling for procedural due process safeguards. I agree with the Court, however, that upon analysis the deprivation here is a significant one, even though the owner remains in undisturbed possession. "For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise [28] alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause." Ante, at 11. Given the elaborate system of title records relating to real property which prevails in all of our States, a lienor need not obtain possession or use of real property belonging to a debtor in order to significantly impair its value to him.

But in Spielman-Fond, Inc., supra, there was, as the Court points out, ante, at 12, n. 4, an alternative basis available to this Court for affirmance of that decision. Arizona recognized a pre-existing lien in favor of unpaid mechanics and materialmen who had contributed labor or supplies which were incorporated in improvements to real property. The existence of such a lien upon the very property ultimately posted or noticed distinguishes those cases from the present one, where the plaintiff had no pre-existing interest in the real property which he sought to attach. Materialman's and mechanic's lien statutes award an interest in real property to workers who have contributed their labor, and to suppliers who have furnished material, for the improvement of the real property. Since neither the labor nor the material can be reclaimed once it has become a part of the realty, this is the only method by which workmen or small businessmen who have contributed to the improvement of the property may be given a remedy against a property owner who has defaulted on his promise to pay for the labor and the materials. To require any sort of a contested court hearing or bond before the notice of lien takes effect would largely defeat the purpose of these statutes.

Petitioners in their brief rely in part on our summary affirmance in Bartlett v. Williams, 464 U. S. 801 (1983). That case involved a lis pendens, in which the question presented to this Court was whether such a procedure could be valid when the only protection afforded to the owner of land affected by the lis pendens was a postsequestration hearing. [29] A notice of lis pendens is a well-established, traditional remedy whereby a plaintiff (usually a judgment creditor) who brings an action to enforce an interest in property to which the defendant has title gives notice of the pendency of such action to third parties; the notice causes the interest which he establishes, if successful, to relate back to the date of the filing of the lis pendens. The filing of such notice will have an effect upon the defendant's ability to alienate the property, or to obtain additional security on the basis of title to the property, but the effect of the lis pendens is simply to give notice to the world of the remedy being sought in the lawsuit itself. The lis pendens itself creates no additional right in the property on the part of the plaintiff, but simply allows third parties to know that a lawsuit is pending in which the plaintiff is seeking to establish such a right. Here, too, the fact that the plaintiff already claims an interest in the property which he seeks to enforce by a lawsuit distinguishes this class of cases from the Connecticut attachment employed in the present case.

Today's holding is a significant development in the law; the only cases dealing with real property cited in the Court's opinion, Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 85 (1988), and Hodge v. Muscatine County, 196 U. S. 276, 281 (1905), arose out of lien foreclosure sales in which the question was whether the owner was entitled to proper notice. The change is dramatically reflected when we compare today's decision with the almost casual statement of Justice Holmes, writing for a unanimous Court in Coffin Brothers & Co. v. Bennett, 277 U. S. 29, 31 (1928):

"[N]othing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit."

The only protection accorded to the debtor in that case was the right to contest his liability in a postdeprivation proceeding.

[30] It is both unwise and unnecessary, I believe, for the plurality to proceed, as it does in Part IV, from its decision of the case before it to discuss abstract and hypothetical situations not before it. This is especially so where we are dealing with the Due Process Clause which, as the Court recognizes, "`"unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances,"'" ante, at 10. And it is even more true in a case involving constitutional limits on the methods by which the States may transfer or create interests in real property; in other areas of the law, dicta may do little damage, but those who insure titles or write title opinions often do not enjoy the luxury of distinguishing detween dicta and holding.

The two elements of due process with which the Court concerns itself in Part IV—the requirements of a bond and of "exigent circumstances" — prove to be upon analysis so vague that the discussion is not only unnecessary, but not particularly useful. Unless one knows what the terms and conditions of a bond are to be, the requirement of a "bond" in the abstract means little. The amount to be secured by the bond and the conditions of the bond are left unaddressed —is there to be liability on the part of a plaintiff if he is ultimately unsuccessful in the underlying lawsuit, or is it instead to be conditioned on some sort of good-faith test? The "exigent circumstances" referred to by the Court are admittedly equally vague; nonresidency appears to be enough in some States, an attempt to conceal assets is required in others, an effort to flee the jurisdiction in still others. We should await concrete cases which present questions involving bonds and exigent circumstances before we attempt to decide when and if the Due Process Clause of the Fourteenth Amendment requires them as prerequisites for a lawful attachment.

JUSTICE SCALIA, concurring in part and concurring in the judgment.

Since the manner of attachment here was not a recognized procedure at common law, cf. Pacific Mut. Life Ins. Co. v. [31] Haslip, 499 U. S. 1, 24 (1991) (SCALIA, J., concurring in judgment), I agree that its validity under the Due Process Clause should be determined by applying the test we set forth in Mathews v. Eldridge, 424 U. S. 319 (1976); and I agree that it fails that test. I join Parts I and III of the Court's opinion, and concur in the judgment of the Court.

[1] Allan B. Taylor, James J. Tancredi, and Kirk D. Tavtigian, Jr., filed a brief for the Connecticut Bankers Association et al. as amici curiae urging reversal.

[2] THE CHIEF JUSTICE, JUSTICE BLACKMUN, JUSTICE KENNEDY, and JUSTICE SOUTER join Parts I, II, and III of this opinion, and JUSTICE SCALIA joins Parts I and III.

[3]The complete text of § 52-278e reads:

"Allowance of prejudgment remedy without hearing. Notice to defendant. Subsequent hearing and order. Attachment of real property of municipal officers. (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for an attachment of real property; or (2) that there is reasonable likelihood that the defendant (A) neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court, or (B) has hidden or will hide himself so that process cannot be served on him or (C) is about to remove himself or his property from this state or (D) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (E) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts or (F) has stated he is insolvent or has stated he is unable to pay his debts as they mature.

"(b) If a prejudgment remedy is granted pursuant to this section, the plaintiff shall include in the process served on the defendant the following notice prepared by the plaintiff: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST THAT THE PREJUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM EXECUTION.

"(c) The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff's claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken."

[4] Three other plaintiffs joined Doehr, challenging § 52-278e(a)(1) out of separate instances of attachment by different defendants. These other plaintiffs and defendants did not participate in the Court of Appeals and are no longer parties in this case.

[5] The Court of Appeals invited Connecticut to intervene pursuant to 28 U. S. C. § 2403(b) after oral argument. The State elected to intervene in the appeal and has fully participated in the proceedings before this Court.

[6] Our summary affirmance in Spielman-Fond, Inc. v. Hanson's, Inc., 417 U. S. 901 (1974), does not control. In Spielman-Fond, the District Court held that the filing of a mechanic's lien did not amount to the taking of a significant property interest. 379 F. Supp. 997, 999 (Ariz. 1973) (three-judge court) (per curiam). A summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion. Edelman v. Jordan, 415 U. S. 651, 671 (1974). The facts of Spielman-Fond presented an alternative basis for affirmance in any event. Unlike the case before us, the mechanic's lien statute in Spielman-Fond required the creditor to have a pre-existing interest in the property at issue. 379 F. Supp., at 997. As we explain below, a heightened plaintiff interest in certain circumstances can provide a ground for upholding procedures that are otherwise suspect. Infra, at 15.

[7] The parties vigorously dispute whether a defendant can in fact receive a prompt hearing. Doehr contends that the State's rules of practice prevent the filing of any motion—including a motion for the mandated postattachment hearing—until the return date on the complaint, which in this case was 30 days after service. Connecticut Practice Book § 114 (1988). Under state law at least 12 days must elapse between service on the defendant and the return date. Conn. Gen. Stat. § 52-46 (1991). The State counters that the postattachment hearing is available upon request. See Fermont Division, Dynamics Corp. of America v. Smith, 178 Conn. 393, 397-398, 423 A. 2d 80, 83 (1979) ("Most important, the statute affords to the defendant whose property has been attached the opportunity to obtain an immediate postseizure hearing at which the prejudgment remedy will be dissolved unless the moving party proves probable cause to sustain the validity of his claim"). We assume, without deciding, that the hearing is prompt. Even on this assumption, the State's procedures fail to provide adequate safeguards against the erroneous deprivation of the property interest at stake.

[8] One State, Pennsylvania, has not had an attachment statute or rule since the decision in Jonnet v. Dollar Savings Bank of New York City, 530 F. 2d 1123 (CA3 1976).

[9] Ordinarily we will not address a contention advanced by a respondent that would enlarge his or her rights under a judgment, without the respondent filing a cross-petition for certiorari. E. g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 119, n. 14 (1985). Here the Court of Appeals rejected Doehr's argument that § 52-278e(a)(1) violates due process in failing to mandate a preattachment bond. Nonetheless, this case involves considerations that in the past have prompted us "to consider the question highlighted by respondent." Berkemer v. McCarty, 468 U. S. 420, 435-436, n. 23 (1984). First, as our cases have shown, the notice and hearing question and the bond question are intertwined and can fairly be considered facets of the same general issue. Thus, "[w]ithout undue strain, the position taken by respondent before this Court . . . might be characterized as an argument in support of the judgment below" insofar as a discussion of notice and a hearing cannot be divorced from consideration of a bond. Ibid. Second, this aspect of prejudgment attachment "plainly warrants our attention, and with regard to which the lower courts are in need of guidance." Ibid. Third, "and perhaps most importantly, both parties have briefed and argued the question." Ibid.

[10]Section 52-568(a)(1) provides:

"Any person who commences and prosecutes any civil action or complaint against another, in his own name, or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."

Joanne S. Faulkner, New Haven, CT (Brian Wolfman, Public Citizen Litigation Group, Washington, DC, of counsel), for plaintiffs-appellants.

Matthew E. Karanian, Hartford, CT (Halloran & Sage, of counsel), for defendants-appellees.

Before: KEARSE, MINER and MAHONEY, Circuit Judges.

MINER, Circuit Judge:

Plaintiffs-appellants Sebastian and Maria Shaumyan ("the Shaumyans") brought this 42 U.S.C. § 1983 action as a class action on behalf of themselves and others against defendant-appellee Sidetex Company, Inc. ("Sidetex") and its attorney, defendant-appellee Steven Rolnick.^[1] In their complaint, [123] the Shaumyans alleged that the defendants deprived them of their property rights without due process by attaching their home pursuant to Connecticut's prejudgment attachment statute, Conn.Gen.Stat. § 52-278e(a)(1) (1991). Section 52-278e(a)(1) permits a plaintiff to attach a defendant's real property in the absence of a predeprivation hearing and without requiring that the plaintiff post a security bond. The district court granted the defendants' motion for summary judgment and dismissed the Shaumyans' complaint. See Shaumyan v. O'Neill, 716 F.Supp. 65 (D.Conn.1989) ("Shaumyan I"). In a subsequent opinion, the district court reconsidered its prior decision in light of the Supreme Court's decision in Connecticut v. Doehr, ___ U.S. ___, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), and reaffirmed its earlier holding that Connecticut's statute was constitutional as applied to the case before it. See Shaumyan v. O'Neill, 795 F.Supp. 528 (D.Conn.1992) ("Shaumyan II"). For the reasons set forth below, we affirm the district court's finding that section 52-278e(a)(1) is constitutional as applied to this debtor-creditor dispute.

BACKGROUND

Sebastian Shaumyan, a professor of linguistics at Yale University, and his wife, Maria Shaumyan, contracted with Sidetex on November 10, 1986 for repairs to be made to their home in New Haven, Connecticut. The repairs included painting as well as the installation of siding, storm windows, doors and shutters. The total contract price was $14,800.00. The contract specified that the Shaumyans were to pay a $3000 deposit, $4000 at the commencement of work, $3900 when the work was half completed, $1950 upon the completion of the siding, and $1950 upon the completion of the storm windows and shutters. After Sidetex had completed its performance, a dispute arose over the quality of the storm windows. In an attempt to satisfy the Shaumyans, Sidetex installed new storm windows and charged the Shaumyans an additional $1800, representing only the cost of materials and labor. This additional work was described in a change order executed by Professor Shaumyan and a representative of Sidetex. After Sidetex installed the new windows, the Shaumyans refused to pay an outstanding balance of $3900 due on the original contract and the $1800 balance due on the change order.

Sidetex retained Steven Rolnick, who applied for an ex parte prejudgment attachment writ against the Shaumyans' home, pursuant to section 52-278e(a)(1), by submitting an affidavit of probable cause and a copy of Sidetex's complaint to a Connecticut Superior Court judge on July 28, 1987. The affidavit of probable cause was signed by Paul Knapp, the President of Sidetex, and stated that: the Shaumyans had signed a contract with Sidetex to install storm windows in their home; the contract price was $14,800.00; Sidetex performed its obligations under the contract; the Shaumyans refused to pay the $5700 balance due despite repeated demands by Sidetex; there were no set-offs, defenses or counterclaims against the outstanding debt; and there was "probable cause to sustain the validity of the plaintiff's claim." The superior court judge granted Sidetex's application on July 30, ordering an attachment in favor of Sidetex in the amount of $6300. Sidetex then filed a breach of contract action in Connecticut Superior Court against the Shaumyans. See Sidetex Co. v. Shaumyan, No. CV 87-0261076 (Conn.Super.Ct. June 21, 1989).

While Sidetex's state court action was pending, the Shaumyans filed this action in the district court on October 19, 1987 against Sidetex and Rolnick seeking: a declaratory judgment that section 52-278e(a)(1) was unconstitutional; an injunction prohibiting Sidetex from attaching their real property; and compensatory and punitive damages together with costs and attorneys' fees. In response to the Shaumyans' suit, Sidetex released the July 30 ex parte attachment on November 6 and began [124] proceedings to obtain an attachment after a plenary hearing. After holding a hearing on December 14, 1987, a Connecticut Superior Court judge granted Sidetex's motion to attach the Shaumyans' home in the amount of $6500. This attachment was recorded on January 12, 1988. On June 21, 1989, the Connecticut Superior Court entered final judgment in favor of Sidetex on its breach of contract claim for $5700 — six hundred dollars less than the amount of its original attachment against the Shaumyans' home. Six days later, the district court granted Sidetex's motion for summary judgment and dismissed the Shaumyans' complaint.

On appeal, we remanded the case to the district court for reconsideration in light of the Supreme Court's opinion in Connecticut v. Doehr, ___ U.S. ___, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), affirming our decision in Pinsky v. Duncan, 898 F.2d 852 (2d Cir.1990), that Connecticut's prejudgment attachment statute was unconstitutional as applied to intentional tortfeasors. On remand, the district court affirmed its earlier decision upholding the constitutionality of the Connecticut statute as it was applied to the Shaumyans. The Shaumyans appeal from the judgment of the district court.

DISCUSSION

I.

Section 52-278e(a)(1) authorizes the prejudgment attachment of real property without affording prior notice or the opportunity for a prior hearing to the individual whose property is the subject of attachment. Conn.Gen.Stat. § 52-278e(a)(1) (1991). The statute also does not require a plaintiff to post a security bond to insure the payment of damages that a defendant may suffer if the attachment is later found to be wrongly issued or the claim proves to be unsuccessful. The statute does require the plaintiff to submit an affidavit of probable cause to a judge, who must then determine whether the plaintiff has demonstrated a likelihood that he will succeed on the merits before granting the writ of attachment. Id. The statute also provides for notice to be given to the defendant after the attachment, informing him that he has the right to a postdeprivation hearing: to claim that no probable cause existed to sustain the claim; to request that the attachment be vacated, modified or that a bond be substituted; or to claim that some portion of the attached property was exempt from the execution. Id. § 52-278e(b). In the event that a defendant chooses to exercise his right to a postdeprivation hearing, the court must hold such a hearing within seven business days after the defendant requests one. Id. § 52-278e(c). On appeal, the Shaumyans argue that section 52-278e(a)(1) is unconstitutional because it fails to provide for a predeprivation hearing and because it fails to provide for the posting of a bond. Before addressing these arguments, we first summarize the Supreme Court cases addressing the constitutionality of prejudgment attachment statutes.

In Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the Supreme Court held that a Wisconsin statute permitting the prejudgment garnishment of a debtor's wages without prior notice or a hearing violated the Due Process Clause of the Fourteenth Amendment. The Court took care to note that the statute allowed a court clerk rather than a judge to garnish a defendant's wages at the request of the creditor's attorney, id. at 338, 89 S.Ct. at 1821, and noted further that wages were "a specialized type of property presenting distinct problems in our economic system," id. at 340, 89 S.Ct. at 1822.

Three years after Sniadach was decided, the Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), invalidated Florida and Pennsylvania replevin statutes on due process grounds. The Florida statute allowed a creditor to seize the personal property of a debtor without a showing of probable cause, without judicial supervision, and without prior notice or a hearing. Id. at 73-74, 93, 92 S.Ct. at 1991, 2000. The Pennsylvania statute not only lacked the same procedural safeguards as the Florida statute but also failed to provide for a postdeprivation hearing. [125] Id. at 75, 92 S.Ct. at 1991. Both statutes required the plaintiff-creditor to post a security bond equal to double the amount of the seized property. Notwithstanding the security bond provisions in the statutes, the Court found the procedural safeguards to be inadequate and thus extended the due process protections it established in Sniadach to include a debtor's possessory interest in the use and enjoyment of his personal property, id. at 84, 92 S.Ct. at 1996.

In Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court declined to strike down on due process grounds a Louisiana statute that permitted a creditor-lienholder to seek the sequestration of disputed goods in an ex parte proceeding. In its decision, the Court noted that the statute: required a creditor to present a fact-specific affidavit to a judge; required a creditor to post a security bond; required the judge to hold a postdeprivation hearing immediately; and allowed the debtor to regain interim possession of the property by filing a substitute bond. Id. at 605-07, 94 S.Ct. at 1899-1900.

In the same year that it decided Mitchell, the Court affirmed without opinion Spielman-Fond, Inc. v. Hanson's, Inc., 379 F.Supp. 997 (D.Ariz.1973) (per curiam), aff'd mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). In Spielman-Fond, a three-judge court declined to strike down Arizona's mechanic's lien statute on due process grounds even though the statute did not have the procedural safeguards that were present in Mitchell. The district court upheld the statute because it did not consider the encumbrance placed on the real property by the mechanic's lien to be a "taking of a significant property interest." 379 F.Supp. at 999.

In North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Court struck down Georgia's prejudgment garnishment statute, which allowed a creditor to obtain an ex parte writ garnishing a debtor's bank account after submitting an affidavit containing only conclusory allegations to a court clerk. Like the statutes in Fuentes, the Georgia statute also required a creditor to post a bond equal to double the amount of the debt due, and it allowed a debtor to regain possession of the property by filing a substitute bond. The Court held that, like the statutes in Fuentes, the Georgia statute violated the Due Process Clause because it lacked any requirement for an affidavit of probable cause, or judicial oversight and included no provision for a hearing.

Finally, in Doehr, supra, the Court struck down the statute implicated here as applied to defendants in intentional tort cases. The Doehr Court applied the three-prong test first articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), to determine whether Connecticut's prejudgment attachment statute violated the Due Process Clause. First, the court must consider the private interests that will be affected by the prejudgment measure. Second, the court must examine the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards. And third, the court must consider the interest of the party seeking the prejudgment remedy. Doehr, ___ U.S. at ___, 111 S.Ct. at 2112. With respect to the first prong, the Doehr Court ruled that an attachment affects a significant interest in real property even though the attachment of that interest did not amount to a complete, permanent deprivation of the property. Id. at ___, 111 S.Ct. at 2113. With respect to the second prong, the Doehr Court struck down the application of section 52-278e(a)(1) to tortfeasors because it found the risk of an erroneous deprivation to be substantial. Id. at ___, 111 S.Ct. at 2114. The low standard of proof required in the affidavit of probable cause combined with the inability of a court to predict with precision the outcome of an intentional tort case with all of its complex variables outweighed the procedural safeguards provided by the postdeprivation hearing. Id. In applying the third prong of its test, the Doehr Court found that the plaintiff had no existing interest in the defendant's real property [126] when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his tort action. Id. at ____, 111 S.Ct. at 2115.

Five members of the Doehr Court declined to address the issue of whether the failure of section 52-278e(a)(1) to require that a plaintiff post a security bond violated the Due Process Clause. A plurality of four Justices, however, reached this issue and stated that due process required a plaintiff to post a security bond to obtain a prejudgment attachment. The plurality reasoned that a bond was especially necessary in tort cases because it provided an extra measure of protection against the danger of wrongful attachment in such unpredictable cases. Id. at ___, 111 S.Ct. at 2117. Having reviewed the Supreme Court's decisions discussing due process and prejudgment attachments, we now proceed to address the substance of the Shaumyans' arguments.

II.

A.

The Shaumyans first argue that section 52-278e(a)(1) is unconstitutional on its face because it fails to provide for a predeprivation hearing, as the Doehr Court required in intentional tort cases. In determining whether a statute violates the Due Process Clause, we begin with the "truism that `[d]ue process unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.'" Doehr, at ___, 111 S.Ct. at 2112 (quoting Mathews, 424 U.S. at 334, 96 S.Ct. at 902). We therefore decline to accept the Shaumyans' invitation to determine whether section 52-278e(a)(1) is prima facie unconstitutional. Rather, as in Doehr, we will determine whether the statute is unconstitutional as applied to the Shaumyans. See Doehr, ___ U.S. at ___, 111 S.Ct. at 2109 ("We hold that, as applied to this case, [section 52-278e(a)(1)] does not [satisfy the Due Process Clause].") (emphasis added).

(1)

In considering the private interests that will be affected by section 52-278e(a)(1), we find that the same property interests that were threatened by the application of section 52-278e(a)(1) to intentional tortfeasors in Doehr are present here. Like the property owner in Doehr, an attachment of the Shaumyans' home would cloud its title, impair their ability to sell or otherwise alienate their property, taint their credit rating, reduce their chances of obtaining a home equity loan or an additional mortgage, and possibly cause any existing mortgage to be cast into default. See id. at ___, 111 S.Ct. at 2113. Thus, applying the first prong set forth in Doehr supports the Shaumyans' position.

(2)

In applying the second prong of the Doehr test, we do not find that the application of section 52-278e(a)(1) to the Shaumyans would create a substantial risk of erroneous deprivation. See id. at ___, 111 S.Ct. at 2113. In determining that the submission of an affidavit of probable cause to a judge did not satisfy the Due Process Clause, the Doehr Court noted that this procedure did not protect the defendant against the uncertainties that are associated with intentional tort cases: "Unlike determining the existence of a debt or delinquent payments, the issue does not concern `ordinarily uncomplicated matters that lend themselves to documentary proof.'" Id. at ___, 111 S.Ct. at 2114 (emphasis added) (quoting Mitchell, 416 U.S. at 609, 94 S.Ct. at 1901). Later in the opinion, the Court emphasized that "disputes between debtors and creditors more readily lend themselves to accurate ex parte assessments of the merits." Doehr, ___ U.S. at ___, 111 S.Ct. at 2115; see also Union Trust Co. v. Heggelund, 219 Conn. 620, 594 A.2d 464, 466 n. 3 (1991).

The facts present in the Shaumyans' case fall into the category of cases that the Doehr Court sought to distinguish from intentional tort cases. Sidetex installed storm windows in the Shaumyans' home. The Shaumyans refused to pay an outstanding [127] sum certain due under their contract with Sidetex. Sidetex sued the Shaumyans for that sum certain and subsequently received a judgment for six hundred dollars less than the amount of the initial prejudgment attachment. The facts of the underlying claim were easily documented, and, in the absence of a substantial risk of erroneous deprivation, we find that the procedural safeguards of section 52-278e(a)(1) are similar to those in the statute that was upheld in Mitchell and therefore satisfy the second prong of the Doehr test.

(3)

The third prong of the Doehr test examines the interests of the plaintiff. In Doehr, the Court found that the plaintiff "had no existing interest in [the tortfeasor's] real estate when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action." Doehr, ___ U.S. at ___, 111 S.Ct. at 2115. Unlike the plaintiff in Doehr, Sidetex had a substantial pre-existing interest in the Shaumyans' real property. Sidetex furnished labor and materials for the improvement of the Shaumyans' home. Since neither Sidetex's labor nor its materials could be reclaimed once they became part of the Shaumyans' home, the prejudgment attachment statute provided Sidetex with a remedy to protect its interest in the Shaumyans' property. Cf. id. at ____, 111 S.Ct. at 2122 (Rehnquist, C.J., concurring) (discussing importance of mechanic's lien statutes). Therefore, even though Sidetex failed to file and perfect a mechanic's lien, Sidetex's unperfected lien nonetheless constituted an interest in the Shaumyans' real property.

In their briefs and during oral argument, both parties admitted that Sidetex could have obtained a mechanic's lien against the Shaumyans' house under Connecticut's mechanic's lien statute. We have examined that statute and the Connecticut case law interpreting it and agree with both parties that it could have been invoked in this case.^[2] Moreover, the Arizona mechanic's lien statute that was challenged in Spielman-Fond, supra, was very similar to the Connecticut mechanic's lien statute. Indeed, the Doehr Court suggested that Spielman-Fond could have been affirmed on the ground that the Arizona statute protected a creditor's pre-existing interest in property that is the subject of a mechanic's lien. See Doehr, ___ U.S. at ___ n. 4, 111 S.Ct. at 2113 n. 4. Thus, because the procedural safeguards of section 52-278e(a)(1) satisfy the second [128] and third prongs of the Doehr test as it is applied to the Shaumyans, we hold that it does not violate the Due Process Clause of the Fourteenth Amendment.

B.

The Shaumyans also argue that section 52-278e(a)(1) is unconstitutional because it does not require a plaintiff to post a security bond. A similar argument was made by the defendants in Pinsky v. Duncan, 898 F.2d 852 (2d Cir.1990), aff'd sub nom., Connecticut v. Doehr, ___ U.S. ___, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), and was rejected by two members of the panel. See Pinsky, 898 F.2d at 858-61 (Mahoney, J., concurring); id. at 864 (Newman, J., dissenting). Because only a plurality of four Justices in Doehr addressed this issue, principles of stare decisis would normally preclude us from considering this issue anew. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir.) ("`a panel of this court will not overturn a recent decision of another panel, rendered after full consideration of the very point at issue'") (quoting Kremer v. Chemical Constr. Corp., 623 F.2d 786, 788 (2d Cir. 1980), aff'd, 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990). However, because the Connecticut Supreme Court has revisited its state's vexatious litigation statute since we decided Pinsky, we will reexamine this issue in light of this new decision, although our analysis ultimately leads us to the same conclusion.

In Pinsky, the concurring and dissenting judges agreed that the failure of section 52-278e(a)(1) to require the plaintiff to post a security bond was not constitutionally defective because a defendant whose property had been wrongfully attached could bring a counterclaim for damages under Connecticut's vexatious litigation statute, Conn.Gen.Stat. § 52-568(a) (1991), instead of having to initiate a new action. See Pinsky, 898 F.2d at 860-61 (Mahoney, J., concurring); id. at 862 (Newman, J., dissenting). The concurring and dissenting opinions did not discuss the standard for determining liability under the vexatious litigation statute, however. The Connecticut vexatious litigation statute provides:

Any person who commences and prosecutes any civil action or complaint against another ... (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.

Conn.Gen.Stat. § 52-568(a). After Pinsky was decided, the Connecticut Supreme Court decided DeLaurentis v. City of New Haven, 220 Conn. 225, 597 A.2d 807 (1991). The DeLaurentis court defined probable cause to mean a "good faith belief in the facts alleged and the validity of the claim asserted." Id. 597 A.2d at 823. The court defined malice to mean "`a purpose other than that of securing the proper adjudication of the claim. . . .'" Id. at 822 n. 16 (quoting Restatement (Second) of Torts § 676 (1977)). Thus, although the standard of liability articulated by the DeLaurentis court apparently would limit the number of debtors who could bring vexatious litigation suits against creditors who attached their real property pursuant to section 52-278e(a)(1), plaintiffs like the Shaumyans may still utilize Connecticut's vexatious litigation statute to protect their interests in the absence of a security bond.

In holding that a security bond need not be posted in connection with a prejudgment attachment, we rely on the language of the Doehr plurality, the conclusion reached by the concurring and dissenting opinions in Pinsky and the absence of a bond requirement in the mechanic's lien statutes of Connecticut and other states.

In Doehr, the plurality found the statute to be defective for the additional reason that it failed to require the posting of a security bond in intentional tort cases. The plurality noted that a security bond requirement would not alleviate the need for a predeprivation hearing. Like the predeprivation hearing, the bond requirement insured against the "unacceptably high" risk that the tortfeasor's "property rights may be wrongfully deprived ... even with such safeguards as a hearing or exigency requirement." [129] Doehr, ___ U.S. at ___, 111 S.Ct. at 2117; see also North Ga. Finishing, 419 U.S. 601, 95 S.Ct. 719 (statute containing bond provision struck down); Fuentes, 407 U.S. 67, 92 S.Ct. 1983 (same). Thus, like the predeprivation hearing, the Doehr plurality justified its requirement for the posting of a security bond on the substantial risk of wrongful deprivation. As we have discussed above, ante at pp. 126-27, no such risk exists in this case, and therefore, due process does not require Sidetex to post a security bond.

We also find support in Chief Justice Rehnquist's observation in Doehr that due process would not mandate that a mechanic's lien statute like the one in Spielman-Fond require the posting of a security bond. See Doehr, ___ U.S. at ___, 111 S.Ct. at 2122 (Rehnquist, C.J., concurring) ("To require any sort of a contested court hearing or bond before the notice of [a mechanic's] lien takes effect would largely defeat the purpose of these statutes."). Because Sidetex used section 52-278e(a)(1) to achieve the same results that it could have achieved under Connecticut's mechanic's lien statute, see ante at pp. 127-28 n. 2, we see no reason why due process would require it to post a bond in one instance but not in the other. Therefore, we hold that the failure of section 52-278e(a)(1) to require Sidetex to post a security bond does not violate the Due Process Clause of the Fourteenth Amendment.

CONCLUSION

In upholding the constitutionality of section 52-278e(a)(1) against the challenges brought by the Shaumyans, Judge Nevas wrote in his second opinion that his decision was "limited exclusively to the facts of this case and its application to a breach of contract action involving an attachment of real property in which the attaching plaintiff seeks payment for material installed and labor performed on that piece of real property." Shaumyan II, 795 F.Supp. at 534. We agree, and affirm the judgment of the district court in all respects.

[1] Subsequent to the filing of the Shaumyans' complaint, the other named parties to this action entered into a stipulation of dismissal and are no longer parties to this appeal. See Shaumyan v. O'Neill, 795 F.Supp. 528, 528 n. 1 (D.Conn.1992). The district court never certified the class action.

[2]Conn.Gen.Stat. § 49-33 (1991) applies to:

any person [who] has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . .

(emphasis added). Subsequent to oral argument, the Shaumyans submitted a letter to this Court in which they argued that Connecticut's mechanic's lien statute did not in fact apply to the facts of their case. They contended that section 49-33(a) "applies only to `materials furnished or services rendered in the construction, raising, removal or repairs of any building,'" and that "[r]enovation, remodeling, alteration or improvement is not included within the statute, which is strictly construed." We have examined the cases cited by the Shaumyans in support of their new argument and find them to be unpersuasive. The statute was amended by the Connecticut legislature in 1974 to include the language underscored above. The cases cited all interpret the statute as it existed prior to the addition of the 1974 language, and the Shaumyans conspicuously omit the added language from their quotation of the statute in their letter to this Court. See, e.g., Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 429 A.2d 796 (1980); see also Stone v. Rosenfield, 141 Conn. 188, 104 A.2d 545 (1954); New Haven Orphan Asylum v. James A. Haggerty Co., 108 Conn. 232, 142 A. 847 (1928). Although, to date, no Connecticut court has authoritatively interpreted the new statutory language, we are satisfied that the work performed by Sidetex constituted an "improvement" to the Shaumyans' property and thus would have allowed Sidetex to obtain a mechanic's lien against the Shaumyans' home. Cf. Nickel Mine Brook Assocs. v. Joseph E. Sakal, P.C., 217 Conn. 361, 585 A.2d 1210, 1212 (1991) (where the court refused to allow an attorney who assisted his client in obtaining a zoning change to file a mechanic's lien against his client's rezoned property but noted that the statute's provisions "should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials.").

        After Congress passed a resolution — the Authorization for Use of Military Force (AUMF) — empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Yaser Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S.C. Hamdi's father filed this habeas petition on his behalf under 28 U.S.C. § 2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi's capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi's trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S. allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C.

[542 U.S. 508]

§ 4001(a) — which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" — the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

        Held: The judgment is vacated, and the case is remanded.

        316 F. 3d 450, vacated and remanded.

        JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. P. 509.

        JUSTICE SOUTER, joined by JUSTICE GINSBURG, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 540-541, 553.

        O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SOUTER, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which GINSBURG, J., joined, post, p. 539. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 554. THOMAS, J., filed a dissenting opinion, post, p. 579.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

        Frank W. Dunham, Jr., argued the cause for petitioners. With him on the briefs were Geremy C. Kamens, Kenneth P. Troccoli, and Frances H. Pratt.

        Deputy Solicitor General Clement argued the cause for respondents. With him on the brief were Solicitor General Olson, Gregory G. Garre, and John A. Drennan.^*

[542 U.S. 509]

        JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.

        At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner Yaser Hamdi's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

[542 U.S. 510]

        On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these "acts of treacherous violence," Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force (AUMF), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.

        This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely — without formal charges or proceedings — unless and until it makes the

[542 U.S. 511]

determination that access to counsel or further process is warranted.

        In June 2002, Hamdi's father, Esam Fouad Hamdi, filed the present petition for a writ of habeas corpus under 28 U. S. C. § 2241 in the Eastern District of Virginia, naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the petition that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son "without access to legal counsel or notice of any charges pending against him." App. 103, 104. The petition contends that Hamdi's detention was not legally authorized. Id., at 105. It argues that, "[a]s an American citizen, . . . Hamdi enjoys the full protections of the Constitution," and that Hamdi's detention in the United States without charges, access to an impartial tribunal, or assistance of counsel "violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution." Id., at 107. The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) "[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (5) order that Hamdi be released from his "unlawful custody." Id., at 108-109. Although his habeas petition provides no details with regard to the factual circumstances surrounding his son's capture and detention, Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do "relief work," and that he had been in that country less than two months before September 11, 2001, and could not have received military training. Id., at 188-189. The 20-year-old was traveling on his own for the first time, his father says, and "[b]ecause of his lack of experience, he was

[542 U.S. 512]

trapped in Afghanistan once the military campaign began." Ibid.

        The District Court found that Hamdi's father was a proper next friend, appointed the federal public defender as counsel for the petitioners, and ordered that counsel be given access to Hamdi. Id., at 113-116. The United States Court of Appeals for the Fourth Circuit reversed that order, holding that the District Court had failed to extend appropriate deference to the Government's security and intelligence interests. 296 F. 3d 278, 279, 283 (2002). It directed the District Court to consider "the most cautious procedures first," id., at 284, and to conduct a deferential inquiry into Hamdi's status, id., at 283. It opined that "if Hamdi is indeed an `enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one." Ibid.

        On remand, the Government filed a response and a motion to dismiss the petition. It attached to its response a declaration from one Michael Mobbs (hereinafter Mobbs Declaration), who identified himself as Special Advisor to the Under Secretary of Defense for Policy. Mobbs indicated that in this position, he has been "substantially involved with matters related to the detention of enemy combatants in the current war against the al Qaeda terrorists and those who support and harbor them (including the Taliban)." App. 148. He expressed his "familiar[ity]" with Department of Defense and United States military policies and procedures applicable to the detention, control, and transfer of al Qaeda and Taliban personnel, and declared that "[b]ased upon my review of relevant records and reports, I am also familiar with the facts and circumstances related to the capture of ... Hamdi and his detention by U. S. military forces." Ibid.

        Mobbs then set forth what remains the sole evidentiary support that the Government has provided to the courts for Hamdi's detention. The declaration states that Hamdi "traveled to Afghanistan" in July or August 2001, and that

[542 U.S. 513]

he thereafter "affiliated with a Taliban military unit and received weapons training." Ibid. It asserts that Hamdi "remained with his Taliban unit following the attacks of September 11" and that, during the time when Northern Alliance forces were "engaged in battle with the Taliban," "Hamdi's Taliban unit surrendered" to those forces, after which he "surrender[ed] his Kalishnikov assault rifle" to them. Id., at 148-149. The Mobbs Declaration also states that, because al Qaeda and the Taliban "were and are hostile forces engaged in armed conflict with the armed forces of the United States," "individuals associated with" those groups "were and continue to be enemy combatants." Id., at 149. Mobbs states that Hamdi was labeled an enemy combatant "[b]ased upon his interviews and in light of his association with the Taliban." Ibid. According to the declaration, a series of "U. S. military screening team[s]" determined that Hamdi met "the criteria for enemy combatants," and "[a] subsequent interview of Hamdi has confirmed the fact that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant." Id., at 149-150.

        After the Government submitted this declaration, the Fourth Circuit directed the District Court to proceed in accordance with its earlier ruling and, specifically, to "`consider the sufficiency of the Mobbs declaration as an independent matter before proceeding further.'" 316 F. 3d 450, 462 (2003). The District Court found that the Mobbs Declaration fell "far short" of supporting Hamdi's detention. App. 292. It criticized the generic and hearsay nature of the affidavit, calling it "little more than the government's `say-so.'" Id., at 298. It ordered the Government to turn over numerous materials for in camera review, including copies of all of Hamdi's statements and the notes taken from interviews with him that related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators who had questioned Hamdi and their names and addresses;

[542 U.S. 514]

statements by members of the Northern Alliance regarding Hamdi's surrender and capture; a list of the dates and locations of his capture and subsequent detentions; and the names and titles of the United States Government officials who made the determinations that Hamdi was an enemy combatant and that he should be moved to a naval brig. Id., at 185-186. The court indicated that all of these materials were necessary for "meaningful judicial review" of whether Hamdi's detention was legally authorized and whether Hamdi had received sufficient process to satisfy the Due Process Clause of the Constitution and relevant treaties or military regulations. Id., at 291-292.

        The Government sought to appeal the production order, and the District Court certified the question of whether the Mobbs Declaration, "`standing alone, is sufficient as a matter of law to allow a meaningful judicial review of [Hamdi's] classification as an enemy combatant.'" 316 F. 3d, at 462. The Fourth Circuit reversed, but did not squarely answer the certified question. It instead stressed that, because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Id., at 459. Concluding that the factual averments in the Mobbs Declaration, "if accurate," provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi pursuant to the President's war powers, it ordered the habeas petition dismissed. Id., at 473. The Fourth Circuit emphasized that the "vital purposes" of the detention of uncharged enemy combatants — preventing those combatants from rejoining the enemy while relieving the military of the burden of litigating the circumstances of wartime captures halfway around the globe — were interests "directly derived from the war powers of Articles I and II." Id., at 465-466. In that court's view, because "Article III contains nothing analogous to the specific powers of war so

[542 U.S. 515]

carefully enumerated in Articles I and II," id., at 463, separation of powers principles prohibited a federal court from "delv[ing] further into Hamdi's status and capture," id., at 473. Accordingly, the District Court's more vigorous inquiry "went far beyond the acceptable scope of review." Ibid.

        On the more global question of whether legal authorization exists for the detention of citizen enemy combatants at all, the Fourth Circuit rejected Hamdi's arguments that 18 U. S. C. § 4001(a) and Article 5 of the Geneva Convention rendered any such detentions unlawful. The court expressed doubt as to Hamdi's argument that § 4001(a), which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," required express congressional authorization of detentions of this sort. But it held that, in any event, such authorization was found in the post-September 11 AUMF. 316 F. 3d, at 467. Because "capturing and detaining enemy combatants is an inherent part of warfare," the court held, "the `necessary and appropriate force' referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops." Ibid.; see also id., at 467-468 (noting that Congress, in 10 U. S. C. § 956(5), had specifically authorized the expenditure of funds for keeping prisoners of war and persons whose status was determined "to be similar to prisoners of war," and concluding that this appropriation measure also demonstrated that Congress had "authoriz[ed these individuals'] detention in the first instance"). The court likewise rejected Hamdi's Geneva Convention claim, concluding that the convention is not self-executing and that, even if it were, it would not preclude the Executive from detaining Hamdi until the cessation of hostilities. 316 F. 3d, at 468-469.

        Finally, the Fourth Circuit rejected Hamdi's contention that its legal analyses with regard to the authorization for the detention scheme and the process to which he was constitutionally

[542 U.S. 516]

entitled should be altered by the fact that he is an American citizen detained on American soil. Relying on Ex parte Quirin, 317 U. S. 1 (1942), the court emphasized that "[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." 316 F. 3d, at 475. "The privilege of citizenship," the court held, "entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there." Ibid.

        The Fourth Circuit denied rehearing en banc, 337 F. 3d 335 (2003), and we granted certiorari. 540 U. S. 1099 (2004). We now vacate the judgment below and remand.

        The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was "`part of or supporting forces hostile to the United States or coalition partners'" in Afghanistan and who "`engaged in an armed conflict against the United States'" there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

        The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution.

[542 U.S. 517]

We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF.

        Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi's principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. § 4001(a). Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Congress passed § 4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. § 811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese-American internment camps of World War II. H. R. Rep. No. 92-116 (1971); id., at 4 ("The concentration camp implications of the legislation render it abhorrent"). The Government again presses two alternative positions. First, it argues that § 4001(a), in light of its legislative history and its location in Title 18, applies only to "the control of civilian prisons and related detentions," not to military detentions. Brief for Respondents 21. Second, it maintains that § 4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress"—the AUMF. Id., at 21-22. Again, because we conclude that the Government's second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied § 4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that § 4001(a) applies to military detentions).

[542 U.S. 518]

        The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

        The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, supra, at 28, 30. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is `neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war'" (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when `no quarter' was the rule on the battlefield. . . . It is now recognized that `Captivity is neither a punishment nor an act of vengeance,' but `merely a temporary detention which is devoid of all penal character.' . . . `A prisoner of war is no convict; his imprisonment is a simple war measure'" (citations omitted)); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on

[542 U.S. 519]

must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released" (footnotes omitted)).

        There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code ¶ 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p. 273, ¶ 153 (1880) (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

        In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

        Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject.

[542 U.S. 520]

The Government responds that "the detention of enemy combatants during World War II was just as `indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not farfetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

        It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after "conclusion of peace"); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301 ("conclusion of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them `without delay after the cessation of active hostilities,' unless they are

[542 U.S. 521]

being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences" (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).

        Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e. g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); Dept. of Defense, News Transcript, Gen. J. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

        Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government's authority to seize

[542 U.S. 522]

enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.¹

        Moreover, as JUSTICE SCALIA acknowledges, the Court in Ex parte Quirin, 317 U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 570 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128-129, on which JUSTICE SCALIA relies. See ibid. Both Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), and M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which JUSTICE SCALIA cites them—that the military does not have authority to try an American citizen accused of spying against his country during wartime—Quirin makes undeniably clear that this is not the law today.

[542 U.S. 523]

Haupt, like the citizens in Smith and M'Connell, was accused of being a spy. The Court in Quirin found him "subject to trial and punishment by [a] military tribuna[l]" for those acts, and held that his citizenship did not change this result. 317 U. S., at 31, 37-38.

        Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent—particularly when doing so gives rise to a host of new questions never dealt with by this Court—is unjustified and unwise.

        To the extent that JUSTICE SCALIA accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because "[i]n Quirin it was uncontested that the petitioners were members of enemy forces," while Hamdi challenges his classification as an enemy combatant. Post, at 571. But it is unclear why, in the paradigm outlined by JUSTICE SCALIA, such a concession should have any relevance. JUSTICE SCALIA envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 554. He does not explain how his historical analysis supports the addition of a third option—detention under some other process after concession of enemy-combatant status—or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.

        Further, JUSTICE SCALIA largely ignores the context of this case: a United States citizen captured in a foreign combat zone. JUSTICE SCALIA refers to only one case involving

[542 U.S. 524]

this factual scenario — a case in which a United States citizen-prisoner of war (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148.

        JUSTICE SCALIA'S treatment of that case—in a footnote—suffers from the same defect as does his treatment of Quirin: Because JUSTICE SCALIA finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner "conceded" enemy-combatant status is beside the point. See supra, at 523. JUSTICE SCALIA can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process.

        Moreover, JUSTICE SCALIA presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 577. This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.

        Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that "extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay" does not comport with

[542 U.S. 525]

the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and "constitutionally intolerable." Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.

        Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e. g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755; Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289, 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. § 2241. Brief for Respondents 12. Further, all agree that § 2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, § 2243 provides that "the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts," and § 2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.

[542 U.S. 526]

        The simple outline of § 2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, id., at 37-38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.

        First, the Government urges the adoption of the Fourth Circuit's holding below—that because it is "undisputed" that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi's seizure cannot in any way be characterized as "undisputed," as "those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances." 337 F. 3d, at 357 (opinion of Luttig, J.); see also id., at 371-372 (opinion of Motz, J.). Further, the "facts" that constitute the alleged concession are insufficient to support Hamdi's detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States" to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that

[542 U.S. 527]

"[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan." App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was "captured in a zone of active combat" operations in a foreign theater of war, 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States." Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.

        The Government's second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. Id., at 34 ("Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination" (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 455-457 (1985) (explaining that the some evidence standard "does not require" a "weighing of the evidence," but rather calls for assessing "whether there is any evidence in the record that could support the conclusion"))). Under this review, a court would assume the accuracy of the Government's articulated

[542 U.S. 528]

basis for Hamdi's detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F. 3d, at 473-474 (declining to address whether the "some evidence" standard should govern the adjudication of such claims, but noting that "[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm" the legality of Hamdi's detention).

        In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law. See, e. g., Zadvydas v. Davis, 533 U. S. 678, 690 (2001); Addington v. Texas, 441 U. S. 418, 425-427 (1979). He argues that the Fourth Circuit inappropriately "ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely," Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be "meaningful judicial review." App. 291.

        Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use

[542 U.S. 529]

for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). See, e. g., Heller v. Doe, 509 U. S. 312, 330-331 (1993); Zinermon v. Burch, 494 U. S. 113, 127-128 (1990); United States v. Salerno, 481 U. S. 739, 746 (1987); Schall v. Martin, 467 U. S. 253, 274-275 (1984); Addington v. Texas, supra, at 425. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute procedural safeguards." Ibid. We take each of these steps in turn.

        It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi's "private interest ... affected by the official action," ibid., is the most elemental of liberty interests—the interest in being free from physical detention by one's own government. Foucha v. Louisiana, 504 U. S. 71, 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action"); see also Parham v. J. R., 442 U. S. 584, 600 (1979) (noting the "substantial liberty interest in not being confined unnecessarily"). "In our society liberty is the norm," and detention without trial "is the carefully limited exception." Salerno, supra, at 755. "We have always been careful not to `minimize the importance and fundamental nature' of the individual's

[542 U.S. 530]

right to liberty," Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today.

        Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for "[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," Jones v. United States, 463 U. S. 354, 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property"); see also id., at 266 (noting "the importance to organized society that procedural due process be observed," and emphasizing that "the right to procedural due process is `absolute' in the sense that it does not depend upon the merits of a claimant's substantive assertions"). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13-22 (noting ways in which "[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions"). Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 ("[The Founders] knew—the history of the world told them—the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time,

[542 U.S. 531]

was especially hazardous to freemen"). Because we live in a society in which "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty," O'Connor v. Donaldson, 422 U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.

        On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra, at 518, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting the reluctance of the courts "to intrude upon the authority of the Executive in military and national security affairs"); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952) (acknowledging "broad powers in military commanders engaged in day-to-day fighting in a theater of war").

        The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging

[542 U.S. 532]

battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46-49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.

        Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) ("The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action"); see also United States v. Robel, 389 U. S. 258, 264 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile").

        With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, "the risk of an erroneous deprivation"

[542 U.S. 533]

of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the "additional or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probable value" and the burdens they may impose on the military in such cases. Mathews, 424 U. S., at 335.

        We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (1985) ("An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case'" (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 617 (1993) ("due process requires a `neutral and detached judge in the first instance'" (quoting Ward v. Monroeville, 409 U. S. 57, 61-62 (1972))). "For more than a century the central meaning of procedural due process has been clear: `Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard `must be granted at a meaningful time and in a meaningful manner.'" Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

        At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be

[542 U.S. 534]

accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of an erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U. S., at 335.²

        We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3-4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments

[542 U.S. 535]

that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant's acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233-234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").

        In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.

        In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination

[542 U.S. 536]

of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court

[542 U.S. 537]

with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

        Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding—one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e. g., St. Cyr, supra; Hill, 472 U. S., at 455-457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker.

        Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42-43 (discussing the "secure interrogation environment," and noting that military interrogations require a controlled "interrogation dynamic" and "a relationship of trust and dependency" and are "a critical source" of

[542 U.S. 538]

"timely and effective intelligence") with Concrete Pipe, 508 U. S., at 617-618 ("[O]ne is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge ... which might lead him not to hold the balance nice, clear and true" (internal quotation marks omitted)). That even purportedly fair adjudicators "are disqualified by their interest in the controversy to be decided is, of course, the general rule." Tumey v. Ohio, 273 U. S. 510, 522 (1927). Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause.

        There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, ch. 1, § 1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government's case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's return. We anticipate

[542 U.S. 539]

that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

        Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.

        The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.

        It is so ordered.

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Notes:

* Briefs of amici curiae urging reversal were filed for the American Bar Association by Dennis W. Archer and Barry Sullivan; for AmeriCares et al. by Steven M. Pesner, Michael Small, and Jeffrey P. Kehne; for the American Civil Liberties Union et al. by Steven R. Shapiro, Sharon M. McGowan, David Saperstein, Jeffrey Sinensky, Kara Stein, and Arthur Bryant; for the Cato Institute by Timothy Lynch; for Global Rights by James F. Fitzpatrick, Kathleen A. Behan, and Gay J. McDougall; for William J. Aceves et al. by Douglas W. Baruch; for Charles B. Gittings, Jr., by Donald G. Rehkopf, Jr.; for the Honorable Nathaniel R. Jones et al. by Robert P. LoBue; for Douglas Peterson et al. by Philip Allen Lacovara and Andrew J. Pincus; and for Mary Robinson et al. by Harold Hongju Koh and Jonathan M. Freiman.

        Briefs of amici curiae urging affirmance were filed for the American Center for Law & Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, John P. Tuskey, and Shannon D. Woodruff; for the Center for American Unity et al. by Barnaby W. Zall; for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III; for Citizens for the Common Defence by Adam H. Charnes; and for the Washington Legal Foundation et al. by Thomas V. Loran, William T. DeVinney, Daniel J. Popeo, and Richard A. Samp.

        A brief of amici curiae urging affirmance in No. 03-6696 and reversal in No. 03-1027 was filed for Senator John Cornyn et al. by Senator Cornyn, pro se.

        Karen B. Tripp filed a brief for the Eagle Forum Education & Legal Defense Fund as amicus curiae.

1. Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.

2. Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.

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        JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part, dissenting in part, and concurring in the judgment.

        According to Yaser Hamdi's petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged

[542 U.S. 540]

him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an "enemy combatant," the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.¹ The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.

        In these proceedings on Hamdi's petition, he seeks to challenge the facts claimed by the Government as the basis for holding him as an enemy combatant. And in this Court he presses the distinct argument that the Government's claim, even if true, would not implicate any authority for holding him that would satisfy 18 U. S. C. § 4001(a) (Non-Detention Act), which bars imprisonment or detention of a citizen "except pursuant to an Act of Congress."

        The Government responds that Hamdi's incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President's power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether "some evidence" supports Hamdi's designation, see Brief for Respondents 34-36; if there is "some evidence," Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation

[542 U.S. 541]

when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 ("[H]e has an opportunity to explain it in his own words" "[d]uring interrogation"). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government's concession of jurisdiction to hear Hamdi's habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional.

        The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government's position that if Hamdi's designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by § 4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 517-521. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.

        The Government's first response to Hamdi's claim that holding him violates § 4001(a), prohibiting detention of citizens "except pursuant to an Act of Congress," is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority § 4001(a) demands: a general authorization to the Department of Defense to pay for detaining "prisoners of war" and "similar" persons, 10 U. S. C. § 956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government

[542 U.S. 542]

argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.

        The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Should the severity of the Act be relieved when the Government's stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act "pursuant" to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 548-549, the answer has to be no. For a number of reasons, the prohibition within § 4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.

        First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U. S. C. § 811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U. S. 214 (1944). See H. R. Rep. No. 92-116, pp. 2, 4-5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express

[542 U.S. 543]

procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id., at 5 (mere repeal "might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act "remains as the only existing barrier against the future exercise of executive power which resulted in" the Japanese internment); cf. id., at 31548 (in the absence of further procedural provisions, even § 4001(a) "will virtually leave us stripped naked against the great power ... which the President has"). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of § 4001(a) as enacted.

        The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us § 4001(a) provides a powerful reason to think that § 4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that § 4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940's were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo, 323 U. S. 283, 285-288 (1944), the statute said nothing whatever about the detention of those who might be removed, id., at 300-301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id., at 287-293. When, therefore, Congress repealed the 1950 Act and adopted § 4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing "accommodations"

[542 U.S. 544]

for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be "pursuant to an Act of Congress," then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.

        Second, when Congress passed § 4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended § 4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu. Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus "unlawfully detained." 323 U.S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty:

        "In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between ... liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." Id., at 300.

        Congress's understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and § 4001(a) must be read to have teeth in its demand for congressional authorization.

        Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason

[542 U.S. 545]

to read § 4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.

        Under this principle of reading § 4001(a) robustly to require a clear statement of authorization to detain, none of the Government's arguments suffices to justify Hamdi's detention.

        First, there is the argument that § 4001(a) does not even apply to wartime military detentions, a position resting on the placement of § 4001(a) in Title 18 of the United States Code, the gathering of federal criminal law. The text of the

[542 U.S. 546]

statute does not, however, so limit its reach, and the legislative history of the provision shows its placement in Title 18 was not meant to render the statute more restricted than its terms. The draft of what is now § 4001(a) as contained in the original bill prohibited only imprisonment unauthorized by Title 18. See H. R. Rep. No. 92-116, at 4. In response to the Department of Justice's objection that the original draft seemed to assume wrongly that all provisions for the detention of convicted persons would be contained in Title 18, the provision was amended by replacing a reference to that title with the reference to an "Act of Congress." Id., at 3. The Committee on the Judiciary, discussing this change, stated that "[limiting] detention of citizens ... to situations in which ... an Act of Congres[s] exists" would "assure that no detention camps can be established without at least the acquiescence of the Congress." Id., at 5. See also supra, at 542-544. This understanding, that the amended bill would sweep beyond imprisonment for crime and apply to Executive detention in furtherance of wartime security, was emphasized in an extended debate. Representative Ichord, chairman of the House Internal Security Committee and an opponent of the bill, feared that the redrafted statute would "deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises." 117 Cong. Rec., at 31542. Representative Railsback, the bill's sponsor, spoke of the bill in absolute terms: "[I]n order to prohibit arbitrary executive action, [the bill] assures that no detention of citizens can be undertaken by the Executive without the prior consent of the Congress." Id., at 31551. This legislative history indicates that Congress was aware that § 4001(a) would limit the Executive's power to detain citizens in wartime to protect national security, and it is fair to say that the prohibition was thus intended to extend not only to the exercise of power to vindicate the interests underlying domestic criminal law, but to statutorily unauthorized

[542 U.S. 547]

detention by the Executive for reasons of security in wartime, just as Hamdi claims.²

        Next, there is the Government's claim, accepted by the plurality, that the terms of the Force Resolution are adequate to authorize detention of an enemy combatant under the circumstances described,³ a claim the Government fails to support sufficiently to satisfy § 4001(a) as read to require a clear statement of authority to detain. Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo, it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit. See, e.g., 18 U. S. C.

[542 U.S. 548]

§ 2339A (material support for various terrorist acts); § 2339B (material support to a foreign terrorist organization); § 2332a (use of a weapon of mass destruction, including conspiracy and attempt); § 2332b(a)(1) (acts of terrorism "transcending national boundaries," including threats, conspiracy, and attempt); 18 U. S. C. § 2339C (2000 ed., Supp. II) (financing of certain terrorist acts); see also 18 U. S. C. § 3142(e) (pretrial detention). See generally Brief for Janet Reno et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, pp. 14-19, and n. 17 (listing the tools available to the Executive to fight terrorism even without the power the Government claims here); Brief for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, p. 23, n. 27.⁴

        Even so, there is one argument for treating the Force Resolution as sufficiently clear to authorize detention of a citizen consistently with § 4001(a). Assuming the argument to be sound, however, the Government is in no position to claim its advantage.

        Because the Force Resolution authorizes the use of military force in acts of war by the United States, the argument goes, it is reasonably clear that the military and its Commander in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. Brief for Respondents 20-22; see ante, at 517-521 (accepting this argument). Accordingly, the United States may detain captured enemies, and Ex parte Quirin, 317 U. S. 1 (1942), may perhaps be claimed for the proposition that the American citizenship of such a captive does not as such limit the Government's power to deal with

[542 U.S. 549]

him under the usages of war. Id., at 31, 37-38. Thus, the Government here repeatedly argues that Hamdi's detention amounts to nothing more than customary detention of a captive taken on the field of battle: if the usages of war are fairly authorized by the Force Resolution, Hamdi's detention is authorized for purposes of § 4001(a).

        There is no need, however, to address the merits of such an argument in all possible circumstances. For now it is enough to recognize that the Government's stated legal position in its campaign against the Taliban (among whom Hamdi was allegedly captured) is apparently at odds with its claim here to be acting in accordance with customary law of war and hence to be within the terms of the Force Resolution in its detention of Hamdi. In a statement of its legal position cited in its brief, the Government says that "the Geneva Convention applies to the Taliban detainees." Office of the White House Press Secretary, Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), www.whitehouse.gov/news/releases/2002/ 02/20020207-13.html (as visited June 18, 2004, and available in Clerk of Court's case file) (hereinafter White House Press Release) (cited in Brief for Respondents 24, n. 9). Hamdi presumably is such a detainee, since according to the Government's own account, he was taken bearing arms on the Taliban side of a field of battle in Afghanistan. He would therefore seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party. Article 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364.

        By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision

[542 U.S. 550]

that even in cases of doubt, captives are entitled to be treated as prisoners of war "until such time as their status has been determined by a competent tribunal." Art. 5, 6 U. S. T., at 3324. The Government answers that the President's determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi's status and removes any doubt that would trigger application of the Convention's tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, ch. 1, §§ 1-5, 1-6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual's status. See, e. g., id., § 1-6 ("A competent tribunal shall be composed of three commissioned officers"; a "written record shall be made of proceedings"; "[p]roceedings shall be open" with certain exceptions; "[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings," "allowed to attend all open sessions," "allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal," and to "have a right to testify"; and a tribunal shall determine status by a "[p]reponderance of evidence"). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an "[i]nnocent civilian who should be immediately returned to his home or released." Id., § 1-6e(10)(c). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that "[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed." Id., § 1-6g. The regulation

[542 U.S. 551]

also incorporates the Geneva Convention's presumption that in cases of doubt, "persons shall enjoy the protection of the . . . Convention until such time as their status has been determined by a competent tribunal." Id., § 1-6a. Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.

        Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the Force Resolution. I conclude accordingly that the Government has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of § 4001(a).

        It is worth adding a further reason for requiring the Government to bear the burden of clearly justifying its claim to be exercising recognized war powers before declaring § 4001(a) satisfied. Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U. S. C. § 1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado.

        Since the Government has given no reason either to deflect the application of § 4001(a) or to hold it to be satisfied, I need

[542 U.S. 552]

to go no further; the Government hints of a constitutional challenge to the statute, but it presents none here. I will, however, stray across the line between statutory and constitutional territory just far enough to note the weakness of the Government's mixed claim of inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war. It is in fact in this connection that the Government developed its argument that the exercise of war powers justifies the detention, and what I have just said about its inadequacy applies here as well. Beyond that, it is instructive to recall Justice Jackson's observation that the President is not Commander in Chief of the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 643-644 (1952) (concurring opinion); see also id., at 637-638 (Presidential authority is "at its lowest ebb" where the President acts contrary to congressional will).

        There may be room for one qualification to Justice Jackson's statement, however: in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority, see supra, at 547-548). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years. Cf. Ex parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified only by "actual and present" necessity as in a genuine invasion that closes civilian courts).

        Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of § 4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."

[542 U.S. 553]

        Because I find Hamdi's detention forbidden by § 4001(a) and unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, a showing that the detention conforms to the laws of war, or a demonstration that § 4001(a) is unconstitutional. I would therefore vacate the judgment of the Court of Appeals and remand for proceedings consistent with this view.

        Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight Members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi's status as an enemy combatant is unnecessary, the terms of the plurality's remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity.

        It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decisionmaker, see ante, at 533; nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel, see ante, at 539. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on

[542 U.S. 554]

Hamdi, see ante, at 534, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 538.

        Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit's judgment and remanding the case.

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Notes:

1. The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39-46.

2. Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Ex parte Endo, 323 U.S. 283, 285-288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.

3. As noted, supra, at 541, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U.S.C. § 956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money.

4. Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh, 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309 F. Supp. 2d 789, 796 (ED Va. 2004).

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        JUSTICE SCALIA, with whom JUSTICE STEVENS joins, dissenting.

        Petitioner Yaser Hamdi, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the plurality's evident unease as it seeks to reconcile the two, I do not agree with its resolution.

        Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the judgment below.

        The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite

[542 U.S. 555]

imprisonment at the will of the Executive. Blackstone stated this principle clearly:

        "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper . . . there would soon be an end of all other rights and immunities. . . . To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. . . .

        "To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, . . . that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 131-133 (1765) (hereinafter Blackstone).

        These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone's understanding — due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned

[542 U.S. 556]

—found expression in the Constitution's Due Process and Suspension Clauses. See Amdt. 5; Art. I, § 9, cl. 2.

        The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e. g., 2 & 3 Philip & Mary, ch. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States § 1783, p. 661 (1833) (hereinafter Story) (equating "due process of law" with "due presentment or indictment, and being brought in to answer thereto by due process of the common law"). The Due Process Clause "in effect affirms the right of trial according to the process and proceedings of the common law." Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) ("When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted" (internal quotation marks omitted)).

        To be sure, certain types of permissible noncriminal detention — that is, those not dependent upon the contention that the citizen had committed a criminal act — did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions — civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, Wilm. 77, 88-92, 97 Eng. Rep. 29, 36-37 (H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing.

[542 U.S. 557]

Cf. Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment").

        These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. It was not always effective. For example, in Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627), King Charles I detained without charge several individuals for failing to assist England's war against France and Spain. The prisoners sought writs of habeas corpus, arguing that without specific charges, "imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually." Id., at 8. The Attorney General replied that the Crown's interest in protecting the realm justified imprisonment in "a matter of state . . . not ripe nor timely" for the ordinary process of accusation and trial. Id., at 37. The court denied relief, producing widespread outrage, and Parliament responded with the Petition of Right, accepted by the King in 1628, which expressly prohibited imprisonment without formal charges, see 3 Car. 1, ch. 1, §§ 5, 10.

        The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, described by Blackstone as a "second magna carta, and stable bulwark of our liberties." 1 Blackstone 133. The Act governed all persons "committed or detained . . . for any crime." § 3. In cases other than felony or treason plainly expressed in the warrant of commitment, the Act required release upon appropriate sureties (unless the commitment was for a nonbailable offense). Ibid. Where the commitment was for felony or high treason, the Act did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time. § 7. If the prisoner was not "indicted some Time in the next Term,"

[542 U.S. 558]

the judge was "required . . . to set at Liberty the Prisoner upon Bail" unless the King was unable to produce his witnesses. Ibid. Able or no, if the prisoner was not brought to trial by the next succeeding term, the Act provided that "he shall be discharged from his Imprisonment." Ibid. English courts sat four terms per year, see 3 Blackstone 275-277, so the practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under § 7 would not exceed approximately three to six months.

        The writ of habeas corpus was preserved in the Constitution — the only common-law writ to be explicitly mentioned. See Art. I, § 9, cl. 2. Hamilton lauded "the establishment of the writ of habeas corpus" in his Federalist defense as a means to protect against "the practice of arbitrary imprisonments . . . in all ages, [one of] the favourite and most formidable instruments of tyranny." The Federalist No. 84, supra, at 444. Indeed, availability of the writ under the new Constitution (along with the requirement of trial by jury in criminal cases, see Art. III, § 2, cl. 3) was his basis for arguing that additional, explicit procedural protections were unnecessary. See The Federalist No. 83, at 433.

        The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.

        JUSTICE O'CONNOR, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained

[542 U.S. 559]

until the cessation of hostilities and then released. Ante, at 518-519. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

        As early as 1350, England's Statute of Treasons made it a crime to "levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere." 25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High Treason, Sir Michael Foster explained:

        "With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places.

        "The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies.

        "States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed. . . . And if the Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act." A Report of Some Proceedings on the Commission . . . for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases, Introduction, § 1, p. 183; Ch. 2, § 8, p. 216; § 12, p. 219.

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        Subjects accused of levying war against the King were routinely prosecuted for treason. E.g., Harding's Case, 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St. Tr. 63 (K. B. 1696); Trial of Vaughan, 13 How. St. Tr. 485 (K. B. 1696); Trial of Downie, 24 How. St. Tr. 1 (1794). The Founders inherited the understanding that a citizen's levying war against the Government was to be punished criminally. The Constitution provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"; and establishes a heightened proof requirement (two witnesses) in order to "convic[t]" of that offense. Art. III, § 3, cl. 1.

        In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U. S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U. S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80-84 (2003); see also Cramer v. United States, 325 U. S. 1 (1945).

        The modern treason statute is 18 U. S. C. § 2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy. See, e.g., § 32 (destruction of aircraft or aircraft facilities), § 2332a (use of

[542 U.S. 561]

weapons of mass destruction), § 2332b (acts of terrorism transcending national boundaries), § 2339A (providing material support to terrorists), § 2339B (providing material support to certain terrorist organizations), § 2382 (misprision of treason), § 2383 (rebellion or insurrection), § 2384 (seditious conspiracy), § 2390 (enlistment to serve in armed hostility against the United States). See also 31 CFR § 595.204 (2003) (prohibiting the "making or receiving of any contribution of funds, goods, or services" to terrorists); 50 U. S. C. § 1705(b) (criminalizing violations of 31 CFR § 595.204). The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col. 5.

        There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods. Blackstone explained:

        "And yet sometimes, when the state is in real danger, even this [i. e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. . . . In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it[s] liberty

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for a while, in order to preserve it for ever." 1 Blackstone 132.

        Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature's explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion. E. g., 1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal with Shay's Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts p. 510.

        Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, § 9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story § 1336, at 208-209.

        The Suspension Clause was by design a safety valve, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis," Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 650 (1952) (Jackson,

[542 U.S. 563]

J., concurring). Very early in the Nation's history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the Government. See 16 Annals of Congress 402-425 (1807). During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension (e. g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization, e. g., Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136-138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id., at 138-139.

        Two later Acts of Congress provided broad suspension authority to governors of U. S. possessions. The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion. Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 692. In 1905 the writ was suspended for nine months by proclamation of the Governor. See Fisher v. Baker, 203 U. S. 174, 179-181 (1906). The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof). Ch. 339, § 67, 31 Stat. 153.

        Of course the extensive historical evidence of criminal convictions and habeas suspensions does not necessarily refute the Government's position in this case. When the writ is

[542 U.S. 564]

suspended, the Government is entirely free from judicial oversight. It does not claim such total liberation here, but argues that it need only produce what it calls "some evidence" to satisfy a habeas court that a detained individual is an enemy combatant. See Brief for Respondents 34. Even if suspension of the writ on the one hand, and committal for criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war against their own country, it is theoretically possible that the Constitution does not require a choice between these alternatives.

        I believe, however, that substantial evidence does refute that possibility. First, the text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ. In the United States, this Act was read as "enforc[ing] the common law," Ex parte Watkins, 3 Pet. 193, 202 (1830), and shaped the early understanding of the scope of the writ. As noted above, see supra, at 557-558, § 7 of the Act specifically addressed those committed for high treason, and provided a remedy if they were not indicted and tried by the second succeeding court term. That remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King. Rather, if the prisoner was not indicted and tried within the prescribed time, "he shall be discharged from his Imprisonment." 31 Car. 2, c. 2, § 7. The Act does not contain any exception for wartime. That omission is conspicuous, since § 7 explicitly addresses the offense of "High Treason," which often involved offenses of a military nature. See cases cited supra, at 560.

        Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ. In 1788, Thomas Jefferson wrote to James Madison questioning the need for a Suspension Clause in cases of rebellion in the proposed

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Constitution. His letter illustrates the constraints under which the Founders understood themselves to operate:

        "Why suspend the Hab. corp. in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime. Of course the judge will remand them. If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages." 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956).

        A similar view was reflected in the 1807 House debates over suspension during the armed uprising that came to be known as Burr's conspiracy:

        "With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for farther prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they will not fail to receive the punishment merited by their crimes, and inflicted by the laws of their country." 16 Annals of Congress, at 405 (remarks of Rep. Burwell).

        The absence of military authority to imprison citizens indefinitely in wartime — whether or not a probability of treason had been established by means less than jury trial — was confirmed by three cases decided during and immediately after the War of 1812. In the first, In re Stacy, 10 Johns.

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*328 (N. Y. 1813), a citizen was taken into military custody on suspicion that he was "carrying provisions and giving information to the enemy." Id., at *330 (emphasis deleted). Stacy petitioned for a writ of habeas corpus, and, after the defendant custodian attempted to avoid complying, Chief Justice Kent ordered attachment against him. Kent noted that the military was "without any color of authority in any military tribunal to try a citizen for that crime" and that it was "holding him in the closest confinement, and contemning the civil authority of the state." Id., at *333-*334.

        Two other cases, later cited with approval by this Court in Ex parte Milligan, 4 Wall. 2, 128-129 (1866), upheld verdicts for false imprisonment against military officers. In Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), the court affirmed an award of damages for detention of a citizen on suspicion that he was, among other things, "an enemy's spy in time of war." Id., at *265. The court held that "[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy." Ibid. "If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority." Id., at *266. Finally, in M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), a jury awarded $9,000 for false imprisonment after a military officer confined a citizen on charges of treason; the judges on appeal did not question the verdict but found the damages excessive, in part because "it does not appear that [the defendant] . . . knew [the plaintiff] was a citizen." Id., at *238 (Spencer, J.). See generally Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War, 98 Nw. U. L. Rev. 1567 (2004).

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        President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted. See Special Session Message, 6 Messages and Papers 20-31.

        Further evidence comes from this Court's decision in Ex parte Milligan, supra. There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id., at 6-7. The Court rejected in no uncertain terms the Government's assertion that military jurisdiction was proper "under the `laws and usages of war,'" id., at 121:

        "It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed," ibid.¹

        Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the

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law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than Milligan's trial by military tribunal.

        Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war:

        "If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he `conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended." Id., at 122.

        Thus, criminal process was viewed as the primary means — and the only means absent congressional action suspending the writ — not only to punish traitors, but to incapacitate them.

        The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that

[542 U.S. 569]

Use shall be for a longer Term than two Years." U.S. Const., Art. I, § 8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

        "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

        A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

        The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Herbert Haupt, was a U. S. citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id., at 18-19, unnumbered note; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later.

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        Only three paragraphs of the Court's lengthy opinion dealt with the particular circumstances of Haupt's case. See id., at 37-38, 45-46. The Government argued that Haupt, like the other petitioners, could be tried by military commission under the laws of war. In agreeing with that contention, Quirin purported to interpret the language of Milligan quoted above (the law of war "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed") in the following manner:

        "Elsewhere in its opinion . . . the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war . . . ." 317 U. S., at 45.

        In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President's suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court's categorical language about the law of war's inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war,

[542 U.S. 571]

while mentioned earlier in the opinion, see id., at 118, were made relevant and brought to bear in the Court's later discussion, see id., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress's authorized suspension of the writ for (as the Court described it) "all parties, not prisoners of war, resident in their respective jurisdictions, . . . who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired," id., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional suspension of the writ, no exception to the right to trial by jury for citizens who could be called "belligerents" or "prisoners of war."²

        But even if Quirin gave a correct description of Milligan, or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were "admitted enemy invaders," 317 U. S., at 47 (emphasis added), and it was "undisputed" that they had landed in the United States in service of German forces, id., at 20. The specific holding of the Court was only that, "upon the conceded facts," the petitioners were "plainly within [the] boundaries" of military jurisdiction, id., at 46 (emphasis added).³ But where those jurisdictional facts are not conceded—where

[542 U.S. 572]

the petitioner insists that he is not a belligerent —Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.⁴

[542 U.S. 573]

        It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so.

        The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides:

        "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." § 2(a).

[542 U.S. 574]

        This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality's view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283, 300 (1944), and Duncan v. Kahanamoku, 327 U. S. 304, 314-316, 324 (1946); or with the clarity necessary to overcome the statutory prescription that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U. S. C. § 4001(a).⁵ But even if it

[542 U.S. 575]

did, I would not permit it to overcome Hamdi's entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

        It should not be thought, however, that the plurality's evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest . . . against the Government's asserted interest," ante, at 529 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury. See ante, at 533-534. It claims authority to engage in this sort of "judicious balancing" from Mathews v. Eldridge, 424 U.S. 319 (1976), a case involving ... the withdrawal of disability benefits! Whatever the merits of this technique when newly

[542 U.S. 576]

recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.

        Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ—disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 539. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 538. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him.

        There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the

[542 U.S. 577]

other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

        Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U.S. 763, 769-771 (1950); Reid v. Covert, 354 U.S. 1, 74-75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 502-504 (SCALIA, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (brief detention pending judicial determination after warrantless arrest); United States v. Salerno, 481 U.S. 739 (1987) (pretrial detention under the Bail Reform Act). The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state.

        I frankly do not know whether these tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation. It is far beyond

[542 U.S. 578]

my competence, or the Court's competence, to determine that. But it is not beyond Congress's. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ—which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. See 3 Story § 1336, at 208-209.⁶ If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.

        The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared,

        "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33 (A. Hamilton).

[542 U.S. 579]

        The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

        Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

---------------

Notes:

1. As I shall discuss presently, see infra, at 570-572, the Court purported to limit this language in Ex parte Quirin, 317 U. S. 1, 45 (1942). Whatever Quirin's effect on Milligan's precedential value, however, it cannot undermine its value as an indicator of original meaning. Cf. Reid v. Covert, 354 U. S. 1, 30 (1957) (plurality opinion) (Milligan remains "one of the great landmarks in this Court's history").

2. Without bothering to respond to this analysis, the plurality states that Milligan "turned in large part" upon the defendant's lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly said so. Ante, at 522. Neither is true. To the extent, however, that prisoner-of-war status was relevant in Milligan, it was only because prisoners of war received different statutory treatment under the conditional suspension then in effect.

3. The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See In re Territo, 156 F.2d 142, 143-145 (CA9 1946); Colepaugh v. Looney, 235 F.2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which "a United States citizen [was] captured in a foreign combat zone," ante, at 523. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality's complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied.

4. The plurality's assertion that Quirin somehow "clarifies" Milligan, ante, at 523, is simply false. As I discuss supra, at 570-571 and this page, the Quirin Court propounded a mistaken understanding of Milligan; but nonetheless its holding was limited to "the case presented by the present record," and to "the conceded facts," and thus avoided conflict with the earlier case. See 317 U. S., at 45-46 (emphasis added). The plurality, ignoring this expressed limitation, thinks it "beside the point" whether belligerency is conceded or found "by some other process" (not necessarily a jury trial) "that verifies this fact with sufficient certainty." Ante, at 523. But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen's liberty depends. The plurality's claim that Quirin's one-paragraph discussion of Milligan provides a "[c]lear ... disavowal" of two false imprisonment cases from the War of 1812, ante, at 522, thus defies logic; unlike the plaintiffs in those cases, Haupt was concededly a member of an enemy force.

        The Government also cites Moyer v. Peabody, 212 U. S. 78 (1909), a suit for damages against the Governor of Colorado, for violation of due process in detaining the alleged ringleader of a rebellion quelled by the state militia after the Governor's declaration of a state of insurrection and (he contended) suspension of the writ "as incident thereto." Ex parte Moyer, 35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia detention after state suspension to federal standing-army detention without suspension) is simply that "[s]o long as such arrests [were] made in good faith and in the honest belief that they [were] needed in order to head the insurrection off," 212 U. S., at 85, an action in damages could not lie. This "good-faith" analysis is a forebear of our modern doctrine of qualified immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232, 247-248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about 2½ months, see 212 U. S., at 85, roughly the length of time permissible under the 1679 Habeas Corpus Act, see supra, at 557-558.

        In addition to Moyer v. Peabody, JUSTICE THOMAS relies upon Luther v. Borden, 7 How. 1 (1849), a case in which the state legislature had imposed martial law—a step even more drastic than suspension of the writ. See post, at 590-591 (dissenting opinion). But martial law has not been imposed here, and in any case is limited to "the theatre of active military operations, where war really prevails," and where therefore the courts are closed. Ex parte Milligan, 4 Wall. 2, 127 (1866); see also id., at 129-130 (distinguishing Luther).

5. The plurality rejects any need for "specific language of detention" on the ground that detention of alleged combatants is a "fundamental incident of waging war." Ante, at 519. Its authorities do not support that holding in the context of the present case. Some are irrelevant because they do not address the detention of American citizens. E.g., Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002). The plurality's assertion that detentions of citizen and alien combatants are equally authorized has no basis in law or common sense. Citizens and noncitizens, even if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U.S. 763 (1950); Rev. Stat. 4067, 50 U.S.C. § 21 (Alien Enemy Act). That captivity may be consistent with the principles of international law does not prove that it also complies with the restrictions that the Constitution places on the American Government's treatment of its own citizens. Of the authorities cited by the plurality that do deal with detention of citizens, Quirin, supra, and Territo, supra, have already been discussed and rejected. See supra, at 571-572, and n. 3. The remaining authorities pertain to U.S. detention of citizens during the Civil War, and are irrelevant for two reasons: (1) the Lieber Code was issued following a congressional authorization of suspension of the writ, see Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863, 12 Stat. 755, §§ 1, 2; and (2) citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power.

6. JUSTICE THOMAS worries that the constitutional conditions for suspension of the writ will not exist "during many . . . emergencies during which ... detention authority might be necessary," post, at 594. It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.

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        JUSTICE THOMAS, dissenting.

        The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U.S. 319 (1976). I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government's compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.

[542 U.S. 580]

        "It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). The national security, after all, is the primary responsibility and purpose of the Federal Government. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment); The Federalist No. 23, pp. 146-147 (J. Cooke ed. 1961) (A. Hamilton) ("The principle purposes to be answered by Union are these — The common defence of the members—the preservation of the public peace as well against internal convulsions as external attacks"). But because the Founders understood that they could not foresee the myriad potential threats to national security that might later arise, they chose to create a Federal Government that necessarily possesses sufficient power to handle any threat to the security of the Nation. The power to protect the Nation

        "ought to exist without limitation . . . [b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed." Id., at 147.

        See also id., Nos. 34 and 41.

        The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id.,

[542 U.S. 581]

No. 70, at 471 (A. Hamilton). The principle "ingredien[t]" for "energy in the executive" is "unity." Id., at 472. This is because "[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." Ibid.

        These structural advantages are most important in the national-security and foreign-affairs contexts. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id., No. 74, at 500 (A. Hamilton). Also for these reasons, John Marshall explained that "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 10 Annals of Cong. 613 (1800); see id., at 613-614. To this end, the Constitution vests in the President "[t]he executive Power," Art. II, § 1, provides that he "shall be Commander in Chief of the" Armed Forces, § 2, and places in him the power to recognize foreign governments, § 3.

        This Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion.

        "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.... Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance ... is a question to be decided by him." Prize Cases, 2 Black 635, 668, 670 (1863).

        The Court has acknowledged that the President has the authority to "employ [the Nation's Armed Forces] in the manner he may deem most effectual to harass and conquer and

[542 U.S. 582]

subdue the enemy." Fleming v. Page, 9 How. 603, 615 (1850). With respect to foreign affairs as well, the Court has recognized the President's independent authority and need to be free from interference. See, e. g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (explaining that the President "has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results"); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948).

        Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson's words, speaking for the Court:

        "The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility

[542 U.S. 583]

and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Ibid.

        Several points, made forcefully by Justice Jackson, are worth emphasizing. First, with respect to certain decisions relating to national security and foreign affairs, the courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld. Second, even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because "[t]hey are delicate, complex, and involve large elements of prophecy." Ibid. Third, the Court in Chicago & Southern Air Lines and elsewhere has correctly recognized the primacy of the political branches in the foreign-affairs and national-security contexts.

        For these institutional reasons and because "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act," it should come as no surprise that "[s]uch failure of Congress ... does not, `especially ... in the areas of foreign policy and national security,' imply `congressional disapproval' of action taken by the Executive." Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (quoting Agee, 453 U.S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U.S., at 678. As far as the courts are concerned, "the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to `invite' `measures on independent presidential responsibility.'" Ibid. (quoting Youngstown, 343 U.S., at 637 (Jackson, J., concurring)).

[542 U.S. 584]

        Finally, and again for the same reasons, where "the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action `would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.'" Dames & Moore, supra, at 668 (quoting Youngstown, supra, at 637 (Jackson, J., concurring)). That is why the Court has explained, in a case analogous to this one, that "the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U.S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission "must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress"). This deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin, supra, at 25 ("We are not here concerned with any question of the guilt or innocence of petitioners"). See also Hirabayashi v. United States, 320 U.S. 81, 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29-30 (1827).

        To be sure, the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Ex parte Endo, 323 U.S. 283 (1944), the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. It did so because the

[542 U.S. 585]

Government's asserted reason for the detention had nothing to do with the congressional and executive authorities upon which the Government relied. Those authorities permitted detention for the purpose of preventing espionage and sabotage and thus could not be pressed into service for detaining a loyal citizen. See id., at 301-302. Further, the Court "stress[ed] the silence ... of the [relevant] Act and the Executive Orders." Id., at 301 (emphasis added); see also id., at 301-304. The Court sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivably be implicated given the Government's factual allegations. And in Youngstown, Justice Jackson emphasized that "Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure." 343 U.S., at 639 (concurring opinion). See also Milligan, supra, at 134 (Chase, C. J., concurring in judgment) (noting that the Government failed to comply with statute directly on point).

        I acknowledge that the question whether Hamdi's executive detention is lawful is a question properly resolved by the Judicial Branch, though the question comes to the Court with the strongest presumptions in favor of the Government. The plurality agrees that Hamdi's detention is lawful if he is an enemy combatant. But the question whether Hamdi is actually an enemy combatant is "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Chicago & Southern Air Lines, 333 U.S., at 111. That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is

[542 U.S. 586]

committed to other branches.¹ In the words of then-Judge Scalia:

        "In Old Testament days, when judges ruled the people of Israel and led them into battle, a court professing the belief that it could order a halt to a military operation in foreign lands might not have been a startling phenomenon. But in modern times, and in a country where such governmental functions have been committed to elected delegates of the people, such an assertion of jurisdiction is extraordinary. The [C]ourt's decision today reflects a willingness to extend judicial power into areas where we do not know, and have no way of finding out, what serious harm we may be doing." Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1550-1551 (CADC 1984) (en banc) (dissenting opinion) (footnote omitted).

        See also id., at 1551, n. 1 (noting that "[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief"). The decision whether someone is an enemy combatant is, no doubt, "delicate, complex, and involv[es] large elements of prophecy," Chicago & Southern Air Lines, supra, at 111, which, incidentally might in part explain why "the Government has never provided any court with the full criteria that it uses in classifying individuals as such," ante, at 516. See also infra, at 597-598 (discussing other military decisions).

        "`The war power of the national government is "the power to wage war successfully."'" Lichter v. United States, 334

[542 U.S. 587]

U.S. 742, 767, n. 9 (1948) (quoting Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238 (1917)). It follows that this power "is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict," In re Yamashita, 327 U.S. 1, 12 (1946); see also Stewart v. Kahn, 11 Wall. 493, 507 (1871), and quite obviously includes the ability to detain those (even United States citizens) who fight against our troops or those of our allies, see, e.g., Quirin, 317 U.S., at 28-29, 30-31; id., at 37-39; Duncan v. Kahanamoku, 327 U.S. 304, 313-314 (1946); W. Winthrop, Military Law and Precedents 788 (2d ed. rev. 1920); W. Whiting, War Powers Under the Constitution of the United States 167 (43d ed. 1871); id., at 44-46 (noting that Civil War "rebels" may be treated as foreign belligerents); see also ante, at 518-519.

        Although the President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized the President to do so. See ante, at 517. The Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11, 2001. Indeed, the Court has previously concluded that language materially identical to the AUMF authorizes the Executive to "make the ordinary use of the soldiers ...; that he may kill persons who resist and, of course, that he may use the milder measure of seizing [and detaining] the bodies of those whom he considers to stand in the way of restoring peace." Moyer v. Peabody, 212 U.S. 78, 84 (1909).

        The plurality, however, qualifies its recognition of the President's authority to detain enemy combatants in the war on terrorism in ways that are at odds with our precedent. Thus, the plurality relies primarily on Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners

[542 U.S. 588]

of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364, for the proposition that "[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities." Ante, at 520. It then appears to limit the President's authority to detain by requiring that "the record establis[h] that United States troops are still involved in active combat in Afghanistan" because, in that case, detention would be "part of the exercise of `necessary and appropriate force.'" Ante, at 521. But I do not believe that we may diminish the Federal Government's war powers by reference to a treaty and certainly not to a treaty that does not apply. See n. 6, infra. Further, we are bound by the political branches' determination that the United States is at war. See, e.g., Ludecke v. Watkins, 335 U.S. 160, 167-170 (1948); Prize Cases, 2 Black, at 670; Mott, 12 Wheat., at 30. And, in any case, the power to detain does not end with the cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343 U.S. 341, 360 (1952); Johnson v. Eisentrager, 339 U.S. 763, 786 (1950); cf. Moyer, supra, at 85.

        Accordingly, the President's action here is "supported by the strongest of presumptions and the widest latitude of judicial interpretation." Dames & Moore, 453 U.S., at 668 (internal quotation marks omitted).² The question becomes whether the Federal Government (rather than the President acting alone) has power to detain Hamdi as an enemy combatant. More precisely, we must determine whether the Government may detain Hamdi given the procedures that were used.

[542 U.S. 589]

        I agree with the plurality that the Federal Government has power to detain those that the Executive Branch determines to be enemy combatants. See ante, at 518. But I do not think that the plurality has adequately explained the breadth of the President's authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings. In my view, the structural considerations discussed above, as recognized in our precedent, demonstrate that we lack the capacity and responsibility to second-guess this determination.

        This makes complete sense once the process that is due Hamdi is made clear. As an initial matter, it is possible that the Due Process Clause requires only "that our Government must proceed according to the `law of the land'—that is, according to written constitutional and statutory provisions." In re Winship, 397 U.S. 358, 382 (1970) (Black, J., dissenting). I need not go this far today because the Court has already explained the nature of due process in this context.

        In a case strikingly similar to this one, the Court addressed a Governor's authority to detain for an extended period a person the executive believed to be responsible, in part, for a local insurrection. Justice Holmes wrote for a unanimous Court:

        "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." Moyer, 212 U.S., at 85 (citation omitted; emphasis added).

[542 U.S. 590]

        The Court answered Moyer's claim that he had been denied due process by emphasizing that

        "it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus summary proceedings suffice for taxes, and executive decisions for exclusion from the country.... Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power." Id., at 84-85 (citations omitted).

        In this context, due process requires nothing more than a good-faith executive determination.³ To be clear: The Court has held that an executive, acting pursuant to statutory and constitutional authority, may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken.

        Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court discussed the President's constitutional and statutory authority, in response to a request from a state legislature or executive, "`to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress [an] insurrection.'" Id., at 43 (quoting Act of Feb. 28, 1795). The Court explained that courts could not review the President's decision to recognize one of the competing legislatures or executives. See 7 How., at 43. If a court could second-guess this determination, "it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained

[542 U.S. 591]

by the troops in the service of the United States." Ibid. "If the judicial power extends so far," the Court concluded, "the guarantee contained in the Constitution of the United States [referring to Art. IV, § 4] is a guarantee of anarchy, and not of order." Ibid. The Court clearly contemplated that the President had authority to detain as he deemed necessary, and such detentions evidently comported with the Due Process Clause as long as the President correctly decided to call forth the militia, a question the Court said it could not review.

        The Court also addressed the natural concern that placing "this power in the President is dangerous to liberty, and may be abused." Id., at 44. The Court noted that "[a]ll power may be abused if placed in unworthy hands," and explained that "it would be difficult . . . to point out any other hands in which this power would be more safe, and at the same time equally effectual." Ibid. Putting that aside, the Court emphasized that this power "is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals." Ibid. Finally, the Court explained that if the President abused this power "it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it." Id., at 45.

        Almost 140 years later, in United States v. Salerno, 481 U. S. 739, 748 (1987), the Court explained that the Due Process Clause "lays down [no] categorical imperative." The Court continued:

        "We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Ibid.

[542 U.S. 592]

        The Court cited Ludecke v. Watkins, 335 U. S. 160 (1948), for this latter proposition even though Ludecke actually involved detention of enemy aliens. See also Selective Draft Law Cases, 245 U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11, 27-29 (1905) (upholding legislated mass vaccinations and approving of forced quarantines of Americans even if they show no signs of illness); cf. Kansas v. Hendricks, 521 U. S. 346 (1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909).

        The Government's asserted authority to detain an individual that the President has determined to be an enemy combatant, at least while hostilities continue, comports with the Due Process Clause. As these cases also show, the Executive's decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the warmaking function. See Part I, supra.

        I therefore cannot agree with JUSTICE SCALIA'S conclusion that the Government must choose between using standard criminal processes and suspending the writ. See ante, at 578 (dissenting opinion). JUSTICE SCALIA relies heavily upon Ex parte Milligan, 4 Wall. 2 (1866), see ante, at 567-568, 570-572, and three cases decided by New York state courts in the wake of the War of 1812, see ante, at 565-566. I admit that Milligan supports his position. But because the Executive Branch there, unlike here, did not follow a specific statutory mechanism provided by Congress, the Court did not need to reach the broader question of Congress' power, and its discussion on this point was arguably dicta, see 4 Wall., at 122, as four Justices believed, see id., at 132, 134-136 (Chase, C. J., joined by Wayne, Swayne, and Miller, JJ., concurring in judgment).

        More importantly, the Court referred frequently and pervasively to the criminal nature of the proceedings instituted

[542 U.S. 593]

against Milligan. In fact, this feature serves to distinguish the state cases as well. See In re Stacy, 10 Johns. *328, *334 (N. Y. 1813) ("A military commander is here assuming criminal jurisdiction over a private citizen" (emphasis added)); Smith v. Shaw, 12 Johns. *257, *265 (N. Y. 1815) (Shaw "might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy" (emphasis added)); M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815) (same for treason).

        Although I do acknowledge that the reasoning of these cases might apply beyond criminal punishment, the punishment-nonpunishment distinction harmonizes all of the precedent. And, subsequent cases have at least implicitly distinguished Milligan in just this way. See, e. g., Moyer, 212 U. S., at 84-85 ("Such arrests are not necessarily for punishment, but are by way of precaution"). Finally, Quirin overruled Milligan to the extent that those cases are inconsistent. See Quirin, 317 U. S., at 45 (limiting Milligan to its facts). Because the Government does not detain Hamdi in order to punish him, as the plurality acknowledges, see ante, at 518-519, Milligan and the New York cases do not control.

        JUSTICE SCALIA also finds support in a letter Thomas Jefferson wrote to James Madison. See ante, at 564. I agree that this provides some evidence for his position. But I think this plainly insufficient to rebut the authorities upon which I have relied. In any event, I do not believe that JUSTICE SCALIA'S evidence leads to the necessary "clear conviction that [the detention is] in conflict with the Constitution or laws of Congress constitutionally enacted," Quirin, supra, at 25, to justify nullifying the President's wartime action.

        Finally, JUSTICE SCALIA'S position raises an additional concern. JUSTICE SCALIA apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, JUSTICE SCALIA would require Congress to suspend the writ. See ante, at 577-578. But the fact that the writ may

[542 U.S. 594]

not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, § 9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally⁴ and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy. JUSTICE SCALIA'S position might therefore require one or both of the political branches to act unconstitutionally in order to protect the Nation. But the power to protect the Nation must be the power to do so lawfully.

        Accordingly, I conclude that the Government's detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his authority. Hamdi thereby received all the process to which he was due under the circumstances. I therefore believe that this is no occasion to balance the competing interests, as the plurality unconvincingly attempts to do.

        Although I do not agree with the plurality that the balancing approach of Mathews v. Eldridge, 424 U. S. 319 (1976), is the appropriate analytical tool with which to analyze this case,⁵ I cannot help but explain that the plurality misapplies its chosen framework, one that if applied correctly would probably lead to the result I have reached. The plurality devotes two paragraphs to its discussion of the Government's interest, though much of those two paragraphs explain why the Government's concerns are misplaced. See ante, at 531-532.

[542 U.S. 595]

But: "It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Agee, 453 U. S., at 307 (quoting Aptheker, 378 U. S., at 509). In Moyer, the Court recognized the paramount importance of the Governor's interest in the tranquility of a Colorado town. At issue here is the far more significant interest of the security of the Nation. The Government seeks to further that interest by detaining an enemy soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the Government avers has become all the more important in the war on terrorism. See Brief for Respondents 15; App. 347-351.

        Additional process, the Government explains, will destroy the intelligence gathering function. Brief for Respondents 43-45. It also does seem quite likely that, under the process envisioned by the plurality, various military officials will have to take time to litigate this matter. And though the plurality does not say so, a meaningful ability to challenge the Government's factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.

        The plurality manages to avoid these problems by discounting or entirely ignoring them. After spending a few sentences putatively describing the Government's interests, the plurality simply assures the Government that the alleged burdens "are properly taken into account in our due process analysis." Ante, at 532. The plurality also announces that "the risk of an erroneous deprivation of a detainee's liberty interest is unacceptably high under the Government's proposed rule." Ante, at 532-533 (internal quotation marks omitted). But there is no particular reason to believe that the federal courts have the relevant information and expertise

[542 U.S. 596]

to make this judgment. And for the reasons discussed in Part I, supra, there is every reason to think that courts cannot and should not make these decisions.

        The plurality next opines that "[w]e think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts." Ante, at 534. Apparently by limiting hearings "to the alleged combatant's acts," such hearings "meddl[e] little, if at all, in the strategy or conduct of war." Ante, at 535. Of course, the meaning of the combatant's acts may become clear only after quite invasive and extensive inquiry. And again, the federal courts are simply not situated to make these judgments.

        Ultimately, the plurality's dismissive treatment of the Government's asserted interests arises from its apparent belief that enemy-combatant determinations are not part of "the actual prosecution of a war," ibid., or one of the "central functions of warmaking," ante, at 534. This seems wrong: Taking and holding enemy combatants is a quintessential aspect of the prosecution of war. See, e. g., ante, at 518-519; Quirin, 317 U. S., at 28. Moreover, this highlights serious difficulties in applying the plurality's balancing approach here. First, in the war context, we know neither the strength of the Government's interests nor the costs of imposing additional process.

        Second, it is at least difficult to explain why the result should be different for other military operations that the plurality would ostensibly recognize as "central functions of warmaking." As the plurality recounts:

        "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." Ante, at 533 (internal quotation marks omitted).

[542 U.S. 597]

        See also ibid. ("notice" of the Government's factual assertions and "a fair opportunity to rebut [those] assertions before a neutral decisionmaker" are essential elements of due process). Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis seems to require notice to potential targets. To take one more example, in November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. See Priest, CIA Killed U. S. Citizen In Yemen Missile Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality's due process would seem to require notice and opportunity to respond here as well. Cf. Tennessee v. Garner, 471 U. S. 1 (1985). I offer these examples not because I think the plurality would demand additional process in these situations but because it clearly would not. The result here should be the same.

        I realize that many military operations are, in some sense, necessary. But many, if not most, are merely expedient, and I see no principled distinction between the military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations. In truth, I doubt that there is any sensible, bright-line distinction. It could be argued that bombings and missile strikes are an inherent part of war, and as long as our forces do not violate the laws of war, it is of no constitutional moment that civilians might be killed. But this does not serve to distinguish this case because it is also consistent with the laws of war to detain enemy combatants exactly as the Government has detained Hamdi.⁶ This, in fact, bolsters my argument in Part III to the extent that

[542 U.S. 598]

the laws of war show that the power to detain is part of a sovereign's war powers.

        Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government's overriding interest in protecting the Nation. If a deprivation of liberty can be justified by the need to protect a town, the protection of the Nation, a fortiori, justifies it.

        I acknowledge that under the plurality's approach, it might, at times, be appropriate to give detainees access to counsel and notice of the factual basis for the Government's determination. See ante, at 532-533. But properly accounting for the Government's interests also requires concluding that access to counsel and to the factual basis would not always be warranted. Though common sense suffices, the Government thoroughly explains that counsel would often destroy the intelligence gathering function. See Brief for Respondents 42-43. See also App. 347-351 (affidavit of Col. D. Woolfolk). Equally obvious is the Government's interest in not fighting the war in its own courts, see, e. g., Johnson v. Eisentrager, 339 U. S., at 779, and protecting classified information, see, e. g., Department of Navy v. Egan, 484 U. S. 518, 527 (1988) (President's "authority to classify and control access to information bearing on national security and to determine" who gets access "flows primarily from [the Commander in Chief Clause] and exists quite apart from any explicit congressional grant"); Agee, 453 U. S., at 307 (upholding revocation of former CIA employee's passport in large part by reference to the Government's need "to protect the secrecy of [its] foreign intelligence operations").⁷

[542 U.S. 599]

        For these reasons, I would affirm the judgment of the Court of Appeals.

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Notes:

1. Although I have emphasized national-security concerns, the President's foreign-affairs responsibilities are also squarely implicated by this case. The Government avers that Northern Alliance forces captured Hamdi, and the District Court demanded that the Government turn over information relating to statements made by members of the Northern Alliance. See 316 F.3d 450, 462 (CA4 2003).

2. It could be argued that the habeas statutes are evidence of congressional intent that enemy combatants are entitled to challenge the factual basis for the Government's determination. See, e.g., 28 U.S.C. §§ 2243, 2246. But factual development is needed only to the extent necessary to resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U.S. 275, 284 (1941).

3. Indeed, it is not even clear that the Court required good faith. See Moyer, 212 U.S., at 85 ("It is not alleged that [the Governor's] judgment was not honest, if that be material, or that [Moyer] was detained after fears of the insurrection were at an end").

4. I agree with JUSTICE SCALIA that this Court could not review Congress' decision to suspend the writ. See ante, at 577-578.

5. Evidently, neither do the parties, who do not cite Mathews even once.

6. Hamdi's detention comports with the laws of war, including the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364. See Brief for Respondents 22-24.

7. These observations cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424 U. S. 319 (1976), in this context. It is, for example, difficult to see how the plurality can insist that Hamdi unquestionably has the right to access to counsel in connection with the proceedings on remand, when new information could become available to the Government showing that such access would pose a grave risk to national security. In that event, would the Government need to hold a hearing before depriving Hamdi of his newly acquired right to counsel even if that hearing would itself pose a grave threat?

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[291] [292] [293] Arthur A. Schulcz, Sr. argued the cause and filed the briefs for appellants.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. Wit him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and I. Glenn Cohen, Attorney.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

Appellants, current and former Navy chaplains of "non-liturgical Protestant" faiths and their endorsing agency, brought suit alleging the Navy has unconstitutionally established and maintained a religious quota system for the promotion, assignment, and retention of Navy chaplains that disadvantages chaplains of non-liturgical Protestant faiths. In the midst of discovery, Appellants moved for preliminary and structural injunctions and for partial summary judgment. The district court denied the motion in its entirety, finding, in particular, that Appellants had failed to demonstrate the irreparable injury necessary to warrant preliminary injunctive relief. We affirm the district court as to its denial of a structural injunction, and we have no jurisdiction to review its denial of partial summary judgment; however, because we conclude Appellants have satisfied the requisite showing of irreparable harm for an Establishment Clause violation, we vacate the district court's judgment denying preliminary injunctive relief and remand for the district court to proceed with the remainder of the preliminary injunction determination.

I

The United States Navy maintains a Chaplain Corps to "meet the spiritual needs of those who serve in the Navy and their families." Adair v. England, 183 F.Supp.2d 31, 35 (D.D.C.2002) (citation and internal quotation mark omitted). Chaplains serve as Naval officers and, like other military officers, both regular and reserve, receive periodic reviews by promotion selection boards that determine which officers should be recommended for promotion. Id. at 35-36; 10 U.S.C. §§ 611, 14101. Any officer a promotion selection board considers but does not recommend for promotion is deemed to have "failed of selection" (FOS) to the higher grade. 10 U.S.C. §§ 627, 14051. The military may convene a special selection board for officers who were erroneously not considered by a promotion selection board, or who were considered but did not receive lawful or proper consideration. Id. §§ 628, 14502; SECNAV Instruction 1401.1B, Special Promotion Selection Boards for Commissioned and Warrant Officers in the Navy and Marine Corps ¶ 4(b) (Dep't of the Navy Apr. 25, 1997).

Federal law mandates separation from military service based on criteria relating to age, grade, and failures of selection. In general, naval reserve officers who have not been recommended for promotion to the grade of rear admiral (lower half) must be separated from the military on the last day of the month they reach 60 years of [294] age.^[1] 10 U.S.C. § 14509. The Secretary of the Navy is afforded some flexibility to deviate from this rule, however. Provided a reserve officer in the Chaplain Corps has not twice failed to be promoted to the next higher grade, the Secretary may retain the chaplain until age 67. Id. § 14703(a)(2). Ordinarily, a second FOS makes separation mandatory, e.g., id. §§ 14505-14506, but even officers who would otherwise be precluded from further service for having twice failed of selection may, "subject to the needs of the service," be considered for continuation under regulations prescribed by the Secretary of Defense, id. § 14701(a)(1); SECNAV Instruction 1920.7B, Continuation on Active Duty of Regular Commissioned Officers and Reserve Officers on the Reserve Active Status List (RASL) in the Navy and Marine Corps (Dep't of the Navy Jan. 30, 2006); DoD Directive 1320.8, Continuation of Regular Commissioned Officers on Active Duty and Reserve Commissioned Officers on the Reserve Active Status List (Dep't of Defense Oct. 21, 1996).^[2] Chaplains retained under this continuation exception may also serve until age 67. SECNAV Instruction 1920.7B ¶ 8; DoD Directive 1320.8 ¶ 4.9.

The Secretary of the Navy has issued instructions describing the qualifications for eligibility as a Chaplain Corps officer. "To be eligible for appointment . . . in either the active-duty or Reserve components, or for voluntary recall from the Reserve component to the active-duty list," an applicant must, among other requirements, "be able to complete 20 years of active commissioned service by age 60," a benchmark that may be raised to age 62 in certain instances. SECNAV Instruction 1120.4, Appointment of Regular and Reserve Officers in the Chaplain Corps of the Navy ¶ 6(b) (Dep't of the Navy May 14, 1986). Applicants who will be unable to complete 20 years of active commissioned service by age 60 must, before their appointment, acknowledge in writing that they are ineligible for appointment to regular service. Id. ¶ 6. In addition, applicants who will be unable to complete 20 years of creditable service for retirement must similarly acknowledge the same in writing. Id.

The Navy divides its chaplains into four categories according to common faith group characteristics: Catholic, liturgical Protestant, non-liturgical Protestant, and "special worship." "Liturgical Protestant" refers to Protestant denominations that trace their origins to the Reformation, retain an established liturgy in their worship services, and practice infant baptism; it includes Lutheran, Episcopal, Methodist, Presbyterian, and Congregational faiths. Adair, 183 F.Supp.2d at 36. "Nonliturgical Protestant" refers to Protestant denominations that do not have a formal liturgy or order in their worship services, that baptize only those who have reached the age of reason, and whose clergy generally do not wear religious vestments during services; it includes Baptist, Evangelical, Pentecostal, and Charismatic faiths. Id.; see also In re England, 375 F.3d 1169, [295] 1172 (D.C.Cir.2004).^[3]

Plaintiffs-Appellants are a group of current and former Navy chaplains of nonliturgical Protestant faiths and their recognized endorsing agency, the Chaplaincy of Full Gospel Churches.^[4] They filed two separate suits against the Secretary of the Navy and other Navy personnel in their official capacities and the Navy itself, Appellees here. In both actions, Appellants alleged "the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments," In re England, 375 F.3d at 1174, and these practices work to the detriment of non-liturgical Christian chaplains. In 2000, the district court consolidated the two cases for the purpose of addressing and resolving pretrial motions. Mem. Op. Den. the Pls.' Mot. for Prelim. and Structural Inj.; Den. the Pls.' Mot. for Partial Summ. J. Without Prejudice 2 n. 2 (Feb. 7, 2005) (Mem.Op.). A prolonged series of motions and petitions followed. See, e.g., Adair v. England, 417 F.Supp.2d 1 (D.D.C.2006); Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (D.D.C.2004); Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (D.D.C.2003), rev'd, In re England, 375 F.3d at 1169, cert. denied, 543 U.S. 1152, 125 S.Ct. 1343, 161 L.Ed.2d 116 (2005); Chaplaincy of Full Gospel Churches v. Johnson, 276 F.Supp.2d 82 (D.D.C.2003); Chaplaincy of Full Gospel Churches v. Johnson, 276 F.Supp.2d 79 (D.D.C.2003); Adair v. Johnson, 216 F.R.D. 183 (D.D.C. 2003); Adair v. England, 217 F.Supp.2d 7 (D.D.C.2002); Adair v. England, 209 F.R.D. 5 (D.D.C.2002); Adair v. England, 209 F.R.D. 1 (D.D.C.2002); Adair v. England, 217 F.Supp.2d 1 (D.D.C.2002); Adair v. England, 193 F.Supp.2d 196 (D.D.C. 2002); Adair, 183 F.Supp.2d at 31; see also Mem. Op. at 2 (describing the case's "wearisome, piecemeal litigation").

The instant appeal stems from the district court's denial of Appellants' latest motion, filed in the midst of discovery. Appellants' Interrogatory No. 9 requested a list of chaplains on active duty over age 62 and their denominations. From the Navy's response, Appellants identified fifteen Catholic reserve chaplains over age 62, fourteen of whom are lieutenants or lieutenant commanders who have twice failed of selection and yet remain on active duty. Mem. of P. & A. in Supp. of Pls.' Mot. for a Prelim. and Structural Inj. and Partial Summ. J. 8 (June 5, 2003) (Pls.' Mem.); Appellants' Br. 11. Appellants also identified seven of these FOS Catholic chaplains as age 67 or greater. Pls.' Mem. at 8.

Armed with this evidence, Appellants moved for preliminary and structural injunctions and partial summary judgment. Appellants contended the age 60 ceiling established by 10 U.S.C. § 14509 prohibits the Navy from allowing the identified reserve lieutenant and lieutenant commander chaplains over age 62 to remain on active duty. Id. Even if the chaplains remained in service past age 60 under 10 U.S.C. § 14703, Appellants argued, the Navy violated [296] that provision's absolute age limit of 67 by retaining seven chaplains of or over that age. Id. Appellants also maintained that none of the chaplains over age 62 possessed sufficient time in service to qualify for retirement and the resulting pension, id., and that the Navy gave those chaplains over age 67 a "4109" personnel classification, meaning "retired reservist recalled to active duty," even though none of them possessed the requisite time in service to qualify for retirement and for the Navy legally to recall them. Id. at 9.^[5]

The Navy's actions, in Appellants' words, evidence a "well established practice of allowing Catholic Naval Reserve chaplains, and only Catholic chaplains," to remain on active duty beyond mandatory separation age limits, constituting "religious favoritism" in violation of the Establishment Clause. Id. at 1-2. Appellants also accused the Navy of "fraud in covering up this illegal retention" by wrongfully employing the "4109" classification with respect to Catholic chaplains over age 67. Id. at 1. The Navy's "scheme," according to Appellants, "appears on its face to have no other purpose but to allow these over-age chaplains to illegally qualify for retirement." Id. Appellants sought relief that would, among other things, "require the Navy to separate immediately those chaplains it has allowed to continue on active duty beyond age 60." Id. at 22.

The district court denied the motion in its entirety. The district court first rejected preliminary injunctive relief because Appellants failed to demonstrate any irreparable injury. Mem. Op. at 5. In so doing, it repudiated Appellants' argument that violation of the law, including the First Amendment and, specifically, the Establishment Clause, per se constitutes irreparable harm. Id. at 6-7. The district court then denied partial summary judgment because adequate time for discovery had not passed. Id. at 8. Appellants timely appealed.

II

We begin on a brief jurisdictional note. We have jurisdiction to review the district court's denial of preliminary injunctive relief, see 28 U.S.C. § 1292(a)(1); however, as a general rule, we lack jurisdiction to hear an appeal of a district court's denial of summary judgment, partial or otherwise. E.g., Johnson v. Greater Se. Comm. Hosp. Corp., 951 F.2d 1268, 1277 (D.C.Cir.1991). Appellants offer no reasons to deviate from this principle, so we confine the remainder of our analysis to the district court's denial of the requested preliminary injunction.^[6]

[297] "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is "an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004). To warrant preliminary injunctive relief, the moving party must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. E.g., Mova Pharm. Corp., 140 F.3d 1060, 1066 (D.C.Cir.1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)) (internal quotation marks omitted). A district court must "balance the strengths of the requesting party's arguments in each of the four required areas." CityFed, 58 F.3d at 747. If the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak. Id. Despite this flexibility, though, a movant must demonstrate "at least some injury" for a preliminary injunction to issue, id. (quoting Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C.Cir.1986)) (internal quotation marks omitted), for "the basis of injunctive relief in the federal courts has always been irreparable harm," Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)) (brackets and internal quotation marks omitted). A movant's failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief. See, e.g., Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1210-11 (D.C.Cir.1989).

We review a district court's weighing of the four preliminary injunction factors and its ultimate decision to issue or deny such relief for abuse of discretion, though any legal conclusions upon which the district court relies, including whether Appellants have demonstrated irreparable injury, are reviewed de novo. Mova Pharm. Corp., 140 F.3d at 1066; Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 614 (D.C.Cir.1992).

A

This court has set a high standard for irreparable injury. First, the injury "must be both certain and great; it must be actual and not theoretical." Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam). The moving party must show "[t]he injury complained of is of such imminence that there is a `clear and present' need for equitable relief to prevent irreparable harm." Id. (citations, brackets, and internal quotation marks omitted). Second, the injury must be beyond remediation. As we have stated:

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary [298] course of litigation weighs heavily against a claim of irreparable harm.

Id. (quoting Va. Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)) (internal quotation marks omitted).

Appellants fail to articulate a tangible injury that is either "certain and great" or irreparable. Appellants argue the Navy's allegedly unlawful practice of retaining Catholic chaplains past applicable age limits precludes non-liturgical Protestant chaplains from advancing to higher grades, since Congress and the Navy cap the number of officers per grade. See 10 U.S.C. §§ 523(a)(2), 12011(a)(2); Decl. of Captain Lyman M. Smith 2 (noting that Congress provides an annual authorization of officers by grade, which the Navy further breaks down by community, for example, Chaplain Corps). Such an injury is far too speculative to warrant preliminary injunctive relief. At most, the Navy's purported practice reduces Appellants' opportunities for promotion, which are themselves dependent upon the number of Chaplain Corps vacancies Congress and the Navy authorize each year. Appellants perhaps inadvertently reveal the hypothetical nature of their tangible injury when they refer to "the ultimate relief which would eventually follow resolution of these cases, e.g., possible promotions." Appellants' Reply Br. 20 (emphasis added). This statement underscores the absence in this proceeding of any discrete injury that is "of such imminence" that equitable relief is urgently necessary.

In addition, Appellants' asserted tangible injury is redressable. The Navy is authorized to convene special selection boards to review a previous non-promotion. 10 U.S.C. §§ 628, 14502; SECNAV Instruction 1401.1B. Within the reserves, the Navy may convene such a board if an "officer or former officer" failed to receive a promotion selection board's recommendation because, among other reasons, the initial board acted "contrary to law" or its action "involved [a] material error of fact." 10 U.S.C. § 14502(b)(1)(A); SECNAV Instruction 1401.1B ¶ 8(a)(1)-(2). If the special selection board recommends the promotion of a current officer, that officer "shall, as soon as practicable, be appointed to the next higher grade" and "shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that officer's grade, and the same position on the active duty list [or] the reserve active status list . . . that officer would have had" if the original promotion selection board had correctly recommended the officer for promotion. 10 U.S.C. § 14502(e)(1)-(2); SECNAV Instruction 1401.B ¶ 14. Former officers who prevail before the special selection board are entitled to revision of their military record "to correct an error or remove an injustice resulting from not being selected for promotion" by the initial board. 10 U.S.C. § 14502(e)(3). Monetary remedies are available to such officers "if, as a result of correcting a record, [an] amount is found to be due." Id. § 1552; see also, e.g., Marsh v. Johnson, 263 F.Supp.2d 49, 51 (D.D.C.2003) (describing correction of record and back payment award to retired officer after special selection board's reversal of previous failure to recommend for promotion). These measures ensure that, should the courts eventually conclude the Navy has an unlawful practice of retaining Catholic chaplains past applicable age limits to the detriment of non-liturgical Protestant chaplains, "adequate compensatory or other corrective relief" is available to Appellants, belying their claims of irreparable tangible harm at this point.

B

Having failed to assert a tangible injury that constitutes irreparable harm, [299] Appellants are left to argue that the Navy's alleged violation of the Establishment Clause per se constitutes irreparable harm. The district court rejected this proposition, but we disagree.

Appellants' argument that they would suffer irreparable harm without a preliminary injunction rests on a statement by a three-Justice plurality in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 373., 96 S.Ct. 2673 Because Appellants claim Appellees' practice of retaining overage Catholic chaplains constitutes an impermissible denominational preference in violation of the Establishment Clause, they urge us to apply the language of the Elrod plurality on its face and conclude that Appellants have demonstrated irreparable injury — specifically, the harm that flows from the "forbidden message" of marginalization Appellees' actions send to Appellants. Appellants' Br. 20. They note several of our sister circuits have employed Elrod to find irreparable harm where moving parties alleged a violation of the Establishment Clause — in other words, the precise context in which we find ourselves. See ACLU of Ky. v. McCreary County, 354 F.3d 438, 445 (6th Cir.2003), aff'd on other grounds, ___ U.S. ___, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir.1996); Parents' Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir.1986).

Appellees, in contrast, maintain Elrod is inapposite because that case involved political speech and expression, a context far removed from the Establishment Clause allegations Appellants advance. They also assert the rationale underlying the Elrod plurality's statement was a concern that without preliminary injunctive relief, the First Amendment rights to speech and expression would be "chilled" during the pendency of litigation, a harm that could not be redressed after final judgment. Appellees maintain Appellants have not identified any constitutionally protected behavior that may be chilled in the absence of a preliminary injunction; accordingly, they claim, the concerns motivating the Elrod plurality are not present here and Appellants' mere allegations, without more, do not support a finding of irreparable injury.

At first blush, Appellees appear to have the better of this debate. Elrod involved political speech and freedom of expression. There, Republican patronage employees of a county sheriff's department brought suit against, among others, a newly elected county sheriff who was a Democrat. Elrod, 427 U.S. at 350, 96 S.Ct. 2673 (plurality opinion). At the time, it was common for an incoming sheriff of a different political party to replace non-civil-service employees with members of his own party when the existing employees lacked or failed to obtain requisite support from, or failed to affiliate with, the new sheriff's political party. Id. at 351, 96 S.Ct. 2673. The Elrod plaintiffs alleged they had been discharged, or threatened with discharge, solely for these reasons and claimed a violation of, inter alia, the First Amendment. Id. at 350, 96 S.Ct. 2673. Upon review, a plurality consisting of Justices Brennan, White, and Marshall, with Justice Brennan writing, held, after lengthy discussion, that patronage dismissals are unconstitutional under the First Amendment and that plaintiffs had therefore stated a claim. Id. at 373, 96 S.Ct. 2673. The plurality then briefly turned to whether a preliminary injunction was warranted, a determination that hinged upon whether plaintiffs had made out an irreparable injury. [300] Concluding they had, the plurality stated:

It is clear . . . that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Since such injury was both threatened and occurring at the time of [plaintiffs'] motion and since [plaintiffs] sufficiently demonstrated a probability of success on the merits, the Court of Appeals might properly have held that the District Court abused its discretion in denying preliminary injunctive relief.

Id. at 373-74, 96 S.Ct. 2673. In a footnote to this passage, the plurality noted, "The timeliness of political speech is particularly important." Id. at 374 n. 29, 96 S.Ct. 2673.^[7]

The facts of Elrod, which involved dismissals from government jobs for failure to ascribe to or gain the approval of a political party; the plurality's citation to New York Times, a landmark free expression case; and the footnote stressing the "timeliness of political speech" make evident that the pertinent Elrod language on which Appellants rely is directed toward circumstances concerning freedom of expression. Indeed, in almost all of the many subsequent cases in which our sister circuits have invoked the Elrod plurality's statement, the operative First Amendment liberties allegedly violated were variants of expressive liberties, such as the rights to speak, associate, petition, or exercise one's religion. See, e.g., Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir.2005); Tucker v. City of Fairfield, 398 F.3d 457, 464 (6th Cir.2005); Joelner v. Village of Washington Park, 378 F.3d 613, 620 (7th Cir.2004); Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir.2003); Brown v. Cal. Dep't of Transp., 321 F.3d 1217, 1226 (9th Cir.2003); Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir.2002); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir.1999); Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir.1996); Miss. Women's Med. Clinic v. McMillan, 866 F.2d 788, 795 (5th Cir. 1989); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir.1987); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The number of cases applying Elrod to alleged Establishment Clause violations is comparatively meager, see McCreary Cty., 354 F.3d at 445; Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir.2002) (per curiam); Ingebretsen, 88 F.3d at 280; Quinones, 803 F.2d at 1242, and, furthermore, each of these decisions cites Elrod only in passing, devoid of any analysis of its particular context. The single court that focused on Elrod's facts recognized the statement at issue here "was made . . . in the context of free speech" and rejected applying it axiomatically to Establishment Clause claims. ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 274 (7th Cir.1986). Therefore, there is superficial merit to Appellees' argument [301] that Elrod ought to play no role in the proceeding before us, which turns entirely on establishment claims.

In addition, Appellees accurately note that this court has construed Elrod to require movants to do more than merely allege a violation of freedom of expression in order to satisfy the irreparable injury prong of the preliminary injunction frame-work. Rather, moving parties must also establish they are or will be engaging in constitutionally protected behavior to demonstrate that the allegedly impermissible government action would chill allowable individual conduct. Thus, for example, in National Treasury Employees Union v. United States, 927 F.2d 1253 (D.C.Cir.1991), we refused to find irreparable harm where federal employees sought a preliminary injunction after alleging that ethics laws prohibiting them from making appearances, delivering speeches, and writing articles for compensation violated their First Amendment rights. Id. We noted that while "the loss of First Amendment freedoms, for even minimal periods of time, may constitute irreparable injury," id. at 1254 (quoting Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (plurality opinion)) (brackets and internal quotation marks omitted), movants must show that their "First Amendment interests are either threatened or in fact being impaired at the time relief is sought," id. at 1254-55 (quoting Wagner v. Taylor, 836 F.2d 566, 577 n. 76 (D.C.Cir.1987) (quoting Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (plurality opinion))) (brackets omitted). We concluded that because the record did not suggest the plaintiffs would "cease speaking or writing" before the district court resolved their claims, irreparable harm would not follow and preliminary relief could not issue. Id. at 1255. Several other courts have adopted this approach, which emphasizes that where it is not clear that a particular statute, policy, or practice will have any actual adverse effect on protected First Amendment liberties, the moving party must demonstrate some likelihood of a chilling effect on their rights. As the Second Circuit has stated:

Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed. . . . In contrast, in instances where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction will prevent the feared deprivation of free speech rights.

Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349-50 (2d Cir.2003); see also Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.1989) ("[T]he assertion of First Amendment rights does not automatically require a finding of irreparable injury. . . . Rather the plaintiffs must show `a chilling effect on free expression.'" (quoting Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965))); Am. Postal Workers Union v. U.S. Postal Serv., 766 F.2d 715, 722 (2d Cir.1985); cf. Laird v. Tatum, 408 U.S. 1, 13-14 & n. 7, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Accordingly, Appellees are correct when they assert that in this court, as in several others, "there is no per se rule that a violation of freedom of expression automatically constitutes irreparable harm." Appellees' Br. 23.

But the crucial distinction Appellees fail to recognize, and which ultimately undermines their position, is that freedom of expression is not the operative First Amendment right at issue in this case. It is not the freedom to speak, to associate, to petition, to exercise one's religion, or [302] any other liberty that protects an individual's freedom to engage in a particular activity. Rather, the pertinent liberty here is protection against government imposition of a state religion or religious preference. This protection, unlike other First Amendment rights that are variants of the freedom to express oneself, requires no affirmative conduct on the part of the individual before its guarantees are implicated by government action. As a matter of semantics, an act chills the freedom of an individual to do something; it is incongruous to link the concept of "chilling" with an individual's freedom not to have something done to him. Accordingly, while a particular government action may chill one's propensity to speak, associate, exercise one's faith, or otherwise engage in constitutionally protected individual conduct, where, as here, the claim asserts government imposition of a religious preference, the "chilling effect" rationale is both inapposite and superfluous.

Because of this critical difference, the twin concerns animating Appellees' argument are much less determinative than they initially appear. First, while we have required individuals seeking a preliminary injunction on First Amendment grounds to demonstrate a likelihood that they are engaging or would engage in the protected activity the governmental action is purportedly infringing, we have done so only in the context of free expression, where the relevant constitutional protection is not implicated without some corresponding individual conduct that faces a danger of chilling. But the Establishment Clause is implicated as soon as the government engages in impermissible action. Where, as here, the charge is one of official preference of one religion over another, such governmental endorsement "sends a message to nonadherents [of the favored denomination] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring). This harm, to which Appellants repeatedly refer throughout their briefs, see, e.g., Appellants' Reply Br. 9 ("Here the message is the Navy prefers Catholics."), occurs merely by virtue of the government's purportedly unconstitutional policy or practice establishing a religion, without any concomitant protected conduct on the movants' part. Accordingly, Appellees' reliance on National Treasury Employees Union and similar cases is misplaced in proceedings concerning alleged Establishment Clause violations.

Second, while Elrod arose in the context of political speech, and its operative language has been employed almost exclusively with respect to restrictions on free speech, free exercise of religion, or other variants of freedom of expression, we think it is also applicable to purported Establishment Clause violations. We reach this conclusion not simply by axiomatically applying Elrod's admonition that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," as other courts have done and Appellants urge. Rather, we emphasize the language surrounding this maxim and note its validity with respect to Establishment Clause claims. The Elrod plurality noted that the plaintiffs' "First Amendment interests were either threatened or in fact being impaired at the time" they sought preliminary injunctive relief, and that because their injury was "both threatened and occurring" and they showed a probability of success on the merits, a preliminary injunction could follow. Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (plurality opinion). [303] Because, when an Establishment Clause violation is alleged, infringement occurs the moment the government action takes place — without any corresponding individual conduct — then to the extent that the government action violates the Establishment Clause, First Amendment interests are "threatened or in fact being impaired." Of course, this raises the question of the extent to which the disputed government action actually violates the Establishment Clause — but this inquiry is addressed by another prong of the preliminary injunction calculation, the likelihood of the movant's success on the merits. Within the irreparable harm analysis itself — which assumes, without deciding, that the movant has demonstrated a likelihood that the non-movant's conduct violates the law — we examine only whether that violation, if true, inflicts irremediable injury. And because of the inchoate, one-way nature of Establishment Clause violations, which inflict an "erosion of religious liberties [that] cannot be deterred by awarding damages to the victims of such erosion," City of St. Charles, 794 F.2d at 275, we are able to conclude that where a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.

Appellees expressly disclaim any contention that "Establishment Clause violations can never constitute irreparable harm sufficient to warrant a preliminary injunction." Appellees' Br. 30. They merely "urge the Court to reject a per se rule that alleging an Establishment Clause violation, without anything more, necessarily constitutes irreparable harm." Id. But this proposition fails for two reasons. First, we are unable to identify the pivotal "anything more" that movants alleging an Establishment Clause violation could offer in order to demonstrate irreparable harm. In cases involving purported violations of freedom of speech, association, religious exercise, or other expressive First Amendment liberties, we are able to fashion, and have fashioned, such a line-drawing element: movants must demonstrate a likelihood that they will engage in the constitutionally protected expressive conduct. But as noted, this notion is not translatable to the First Amendment freedom from government establishment of religion. The harm inflicted by religious establishment is self-executing and requires no attendant conduct on the part of the individual. It is unclear what, exactly, movants alleging an Establishment Clause violation could show to differentiate between establishments that inflict irreparable harm and those that do not.

Second, and more significant, Appellees' proposed approach would foreclose all possibility of preliminary injunctive relief in Establishment Clause cases based on intangible harm, even those involving the most manifest violations of the Establishment Clause. Consider, for example, a state legislature's decision, with gubernatorial approval, to erect an enormous cross in front of the statehouse, on public property, using public funds. The legislative history unambiguously reveals an intent to raise the cross as a symbol of Christianity and to spread Christian values among the polity. An offended resident would have taxpayer standing to seek removal of the cross, cf. Flast v. Cohen, 392 U.S. 83, 105-06, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and would handily win a permanent injunction to that effect. Under Appellees' theory, however, she could not possibly obtain a preliminary injunction ordering removal of the cross during pendency of the litigation, despite the certainty with which she would ultimately prevail on the merits of her claim and the irreparability of the [304] harm inflicted upon her in the meantime. Appellees would have the taxpayer allege something more than a patent violation of the Establishment Clause; yet we cannot imagine what that could be. The result would be an erosion of the very principles of religious freedom the Establishment Clause serves to safeguard. See City of St. Charles, 794 F.2d at 275 ("If preliminary injunctions were not available in cases brought to enforce the establishment clause, government might be able to erode the values that the clause protects with a flood of temporary or intermittent infringements."). We reject this position and instead hold that a party alleging a violation of the Establishment Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus.^[8]

We stress that a finding of irreparable injury is but one of four elements that comprise the preliminary injunction framework. The mere allegation that the government is violating the Establishment Clause may suffice to satisfy the irreparable harm prong, but a preliminary injunction will not issue unless the moving party also shows, on the same facts, a substantial likelihood of success on the merits, that the injunction would not substantially injure other interested parties, and that the public interest would be furthered by the injunction. It is these other prongs that will ultimately determine meritorious motions for preliminary injunctions in the face of purported Establishment Clause violations. Unsupported or undeveloped allegations of government establishment, for example, while sufficient to make out irreparable injury, will not withstand scrutiny concerning the movant's likelihood of success on the merits, thereby defeating a request for a preliminary injunction. Likewise, demands for preliminary relief that inflict untoward detriment on persons not party to the case will meet a similar fate, as will motions that do not further the public interest. Thus we do not believe that our decision today in any way lessens the burden for parties seeking preliminary injunctive relief against purported Establishment Clause violations. It merely focuses greater attention on the three other factors that indisputably enter into the preliminary injunction determination.

Appellants allege that Appellees' practice of retaining overage Catholic chaplains constitutes a denominational preference in violation of the Establishment Clause. If true, which we assume is the case for purposes of the irreparable injury prong, the government has, without anything more, infringed upon Appellants' freedom from government establishment of religion, constituting irreparable harm. The district court committed error in finding otherwise.

III

Having reached a conclusion contrary to the district court with respect to Appellants' irreparable injury, we must decide whether to proceed with the remainder of the preliminary injunction determination, as Appellants urge, or remand the case to the district court, as Appellees insist. We believe the proper course of action at this point is to remand to the district court.

When denying a preliminary injunction, a district court "shall . . . set forth the findings of fact and conclusions of law which constitute the grounds of its action." Fed.R.Civ.P. 52(a). "It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there [305] should be fair compliance with Rule 52(a)." Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316, 60 S.Ct. 517, 84 L.Ed. 774 (1940). The district court here confined its analysis to determining whether irreparable harm would visit Appellants without interim relief. It expressly withheld consideration of the three other factors that enter into the preliminary injunction calculus. See Mem. Op. at 5 & n. 2. Accordingly, the "conclusions of law" as to these other factors that Rule 52(a) requires are not present. See Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 364 (2d Cir.2003); Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 423 (4th Cir.1999) ("Requiring trial courts to explain their injunction orders serves at least two important purposes. First, it allows the parties to better understand the reasons for the court's actions. Second, a written explanation of the district court's reasoning permits an appellate court to meaningfully review that decision."); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2576 (2d ed. 1995) ("If the appellate court finds that it cannot review the case meaningfully without findings and conclusions, it may remand so that findings can be made."). We are therefore disposed to remand to the district court to pick up where it left off.

We are aware that because our review of the legal findings supporting a district court's preliminary injunction determination is de novo, the absence of legal findings does not necessarily preclude us from undertaking appellate review. See LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1155 (9th Cir.2006). But our review of the district court's balancing of the four preliminary injunction factors and ultimate decision to grant or deny such relief is for abuse of discretion, and without any conclusions of law as to the three remaining factors, we are unable to determine whether the district court properly carried out this function. See Hoechst Diafoil, 174 F.3d at 423. A remand would also effect greater development of the remaining preliminary injunction factors, particularly Appellants' likelihood of success on the merits, which we believe advisable. Indeed, in explicitly choosing not to address the three other components, the district court noted that if later required to turn to them, it would "likely benefit" from further elaboration of certain arguments raised before it concerning the merits of Appellants' claim. Mem. Op. at 5 n. 2. Both precedent and prudence, therefore, counsel a remand to the district court so that a "full understanding of the issues" may be attained. Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir. 1997); cf. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 13 (1st Cir.2002) ("Injunctive relief is, by its very nature, fact-sensitive and case-specific. For that reason, the court of appeals ordinarily will not uphold a preliminary injunction on a ground that was not fully addressed by the trial court.").

IV

By alleging that Appellees are engaging in conduct that violates the Establishment Clause, Appellants have satisfied the irreparable injury prong of the preliminary injunction framework. We therefore reverse the district court on this point, vacate its denial of preliminary injunctive relief, and remand for the court to carry out the remainder of the preliminary injunction analysis. We affirm the district court's denial of structural injunctive relief, and we have no jurisdiction to rule on its denial of partial summary judgment.

So ordered.

[1] As pertinent to this appeal, the grades of lieutenant and lieutenant commander are both below the grade of rear admiral (lower half). 10 U.S.C. § 5501.

[2] Prior to 2003, both regular and reserve officers who twice failed of selection were considered for continuation by a selection board convened expressly for that purpose. 10 U.S.C. §§ 637(a)(1), 14701(a)(1) (2000); id. §§ 611(b), 14101(b)(1). In 2003, in an effort to "streamline[ ]" the process for continuation of reserve officers, Congress repealed the selection board requirement as to reserve officers. National Defense Authorization Act for Fiscal Year 2004, Pub.L. No. 108-136, § 511, 117 Stat. 1392, 1459.

[3] "Special worship" refers to faith groups, both Christian and non-Christian, that have "unique or special needs for their worship and religious practices"; it includes Jewish, Christian Science, Seventh-Day Adventist, Mormon, Buddhist, Hindu, Moslem, Jehovah's Witness, and Unitarian faiths. Adair, 183 F.Supp.2d at 36. It is not a relevant category to the instant proceeding.

[4] To be eligible for appointment in the Chaplain Corps, an applicant must receive the endorsement of a recognized ecclesiastical endorsing agency. SECNAV Instruction 1120.4, at ¶ 7(b).

[5] Appellants also claimed that even if the seven "4109" chaplains over age 67 met the requirements for retirement and thus could legally be recalled to active duty, the duration of their recalls exceeded the 180-day time limit set by Navy regulations. Pls.' Mem. at 9; SECNAV Instruction 1811.4E, Voluntary Recall/Retention of Retired Officers to/on Active Duty ¶ 4(c) (Dep't of the Navy June 24, 1993).

[6] Appellants also moved for a structural injunction, a remedy that has been defined as an "injunction seeking to effect the reform of a social institution." Owen M. Fiss, The Civil Rights Injunction 9 (1978). The purpose of a structural injunction is "to remodel an existing social or political institution to bring it into conformity with constitutional demands; e.g., restructuring a school system to facilitate equal educational opportunities." Lampkin v. District of Columbia, 886 F.Supp. 56, 62 (D.D.C.1995). Structural injunctions are "typically used as public law remedies for serious and pervasive rights violations." Id. The district court never specifically addressed Appellants' request for a structural injunction, concluding only that it would not grant mandatory injunctive relief since Appellants failed the less burdensome test for preliminary injunctive relief. See Mem. Op. at 5. On appeal, Appellants' 62-page brief devotes all of one paragraph to arguing for this extraordinary form of relief, citing two entirely unrelated cases. In kind, we devote all of one paragraph to concluding that Appellants' request for a structural injunction is without merit.

[7] Justice Stewart, joined by Justice Blackmun, wrote a one-paragraph opinion concurring in the judgment; three Justices dissented, and one took no part in the case. Because the plurality's discussion of irreparable harm did not enjoy support from a majority of Justices, it is not binding precedent but a "considered opinion" that "should be the point of reference for further discussion of the issue." King v. Palmer, 950 F.2d 771, 782 (D.C.Cir.1991) (en banc) (quoting Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion)) (internal quotation marks omitted).

[8] This conclusion presupposes, of course, that the party has standing to allege such a violation.