In Davis v. Michigan Dept. of Treasury, 489 U.S. 803 (1989), we held that a State violates the constitutional doctrine of intergovernmental tax immunity when it taxes retirement benefits paid by the Federal Government but exempts from taxation all retirement benefits paid by the State or its political subdivisions. Relying on the retroactivity analysis of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Supreme Court of Virginia twice refused to apply Davis to
I
The Michigan tax scheme at issue in Davis "exempt[ed] from taxation all retirement benefits paid by the State or its political subdivisions, but levie[d] an income tax on retirement benefits paid by . . . the Federal Government." 489 U. S., at 805. We held that the United States had not consented under 4 U. S. C. § 111
Like Michigan, Virginia exempted state and local employees' retirement benefits from state income taxation while taxing federal retirement benefits. Va. Code Ann. § 58.1— 322(c)(3) (Supp. 1988). In response to Davis, Virginia repealed its exemption for state and local government employees. 1989 Va. Acts, Special Sess. II, ch. 3. It also enacted a special statute of limitations for refund claims made in light of Davis. Under this statute, taxpayers may seek a refund
Petitioners, 421 federal civil service and military retirees, sought a refund of taxes "erroneously or improperly assessed" in violation of Davis ` nondiscrimination principle. Va. Code Ann. § 58.1-1826 (1991). The trial court denied relief. Law No. CL891080 (Va. Cir. Ct., Mar. 12, 1990). Applying the factors set forth in Chevron Oil Co. v. Huson, supra, at 106-107,
The Supreme Court of Virginia affirmed. Harper v. Virginia Dept. of Taxation, 241 Va. 232, 401 S.E.2d 868 (1991). It too concluded, after consulting Chevron and the plurality opinion in American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990), that "the Davis decision is not to be applied retroactively." 241 Va., at 240, 401 S. E. 2d, at 873. The court also rejected petitioners' contention that "refunds
Even as the Virginia courts were denying relief to petitioners, we were confronting a similar retroactivity problem in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991). At issue was Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), which prohibited States from imposing higher excise taxes on imported alcoholic beverages than on local products. The Supreme Court of Georgia had used the analysis described in Chevron Oil Co. v. Huson to deny retroactive effect to a decision of this Court. Six Members of this Court disagreed, concluding instead that Bacchus must be applied retroactively to claims arising from facts predating that decision. Beam, 501 U. S., at 532 (opinion of Souter, J.); id., at 544-545 (White, J., concurring in judgment); id., at 547-548 (Blackmun, J., concurring in judgment); id., at 548-549 (Scalia, J., concurring in judgment). After deciding Beam, we vacated the judgment in Harper and remanded for further consideration. 501 U.S. 1247 (1991).
On remand, the Supreme Court of Virginia again denied tax relief. 242 Va. 322, 410 S.E.2d 629 (1991). It reasoned that because Michigan did not contest the Davis plaintiffs' entitlement to a refund, this Court "made no . . . ruling" regarding the retroactive application of its rule "to the litigants in that case." 242 Va., at 326, 410 S. E. 2d, at 631. Concluding that Beam did not foreclose application of Chevron `s retroactivity analysis because "the retroactivity issue was not decided in Davis, " 242 Va., at 326, 410 S. E. 2d, at
When we decided Davis, 23 States gave preferential tax treatment to benefits received by employees of state and local governments relative to the tax treatment of benefits received by federal employees.
After the Supreme Court of Virginia reaffirmed its original decision, we granted certiorari a second time. 504 U.S. 907 (1992). We now reverse.
II
"[B]oth the common law and our own decisions" have "recognized a general rule of retrospective effect for the constitutional decisions of this Court." Robinson v. Neil, 409 U.S. 505, 507 (1973). Nothing in the Constitution alters the fundamental rule of "retrospective operation" that has governed "[j]udicial decisions . . . for near a thousand years." Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910) (Holmes, J., dissenting). In Linkletter v. Walker, 381 U.S. 618 (1965), however, we developed a doctrine under which we could deny retroactive effect to a newly announced rule of criminal law. Under Linkletter, a decision to confine a new rule to prospective application rested on the purpose of the new rule, the reliance placed upon the previous view of the law, and "the effect on the administration of justice of a retrospective application" of the new rule. Id., at 636 (limiting Mapp v. Ohio, 367 U.S. 643 (1961)).
We subsequently overruled Linkletter in Griffith v. Kentucky, 479 U.S. 314 (1987), and eliminated limits on retroactivity in the criminal context by holding that all "newly declared . . . rule[s]" must be applied retroactively to all "criminal cases pending on direct review." Id., at 322. This holding rested on two "basic norms of constitutional adjudication." Ibid. First, we reasoned that "the nature of judicial review" strips us of the quintessentially "legislat[ive]" prerogative to make rules of law retroactive or prospective as we see fit. Ibid. Second, we concluded that "selective application of new rules violates the principle of treating similarly situated [parties] the same." Id., at 323.
Dicta in Griffith, however, stated that "civil retroactivity. . . . continue[d] to be governed by the standard announced in Chevron Oil. " Id., at 322, n. 8. We divided over the meaning of this dicta in American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990). The four Justices in the plurality used "the Chevron Oil test" to consider whether to confine "the application of [American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987),] to taxation of highway use prior to June 23, 1987, the date we decided Scheiner. " Id.,
Griffith and American Trucking thus left unresolved the precise extent to which the presumptively retroactive effect of this Court's decisions may be altered in civil cases. But we have since adopted a rule requiring the retroactive application of a civil decision such as Davis. Although James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), did not produce a unified opinion for the Court, a majority of Justices agreed that a rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law. In announcing the judgment of the Court, Justice Souter laid down a rule for determining the retroactive effect of a civil decision: After the case announcing any rule of federal law has "appl[ied] that rule with respect to the litigants" before the court, no court may "refuse to apply [that] rule . . . retroactively." Id., at 540 (opinion of Souter, J., joined by Stevens, J.). Justice Souter's view of retroactivity superseded "any claim based on a Chevron Oil analysis." Ibid. Justice White likewise concluded that a decision "extending the benefit of the judgment" to the winning party "is to be applied to other litigants whose cases were not final at the time of the [first] decision." Id., at 544 (opinion concurring in judgment). Three other Justices agreed that "our judicial responsibility . . . requir[es] retroactive application of each . . . rule we announce." Id., at 548 (Blackmun, J.,
Beam controls this case, and we accordingly adopt a rule that fairly reflects the position of a majority of Justices in Beam: When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. This rule extends Griffith `s ban against "selective application of new rules." 479 U. S., at 323. Mindful of the "basic norms of constitutional adjudication" that animated our view of retroactivity in the criminal context, id., at 322, we now prohibit the erection of selective temporal barriers to the application of federal law in noncriminal cases. In both civil and criminal cases, we can scarcely permit "the substantive law [to] shift and spring" according to "the particular equities of [individual parties'] claims" of actual reliance on an old rule and of harm from a retroactive application of the new rule. Beam, supra, at 543 (opinion of Souter, J.). Our approach to retroactivity heeds the admonition that "[t]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently." American Trucking, supra, at 214 (Stevens, J., dissenting).
The Supreme Court of Virginia "appl[ied] the threepronged Chevron Oil test in deciding the retroactivity issue" presented by this litigation. 242 Va., at 326, 410 S. E. 2d, at 631. When this Court does not "reserve the question whether its holding should be applied to the parties before it," however, an opinion announcing a rule of federal law "is properly understood to have followed the normal rule of retroactive application" and must be "read to hold . . . that its rule should apply retroactively to the litigants then before
In an effort to distinguish Davis, the Supreme Court of Virginia surmised that this Court had "made no . . . ruling" about the application of the rule announced in Davis "retroactively to the litigants in that case." 242 Va., at 326, 410 S. E. 2d, at 631. "[B]ecause the retroactivity issue was not decided in Davis, " the court believed that it was "not foreclosed by precedent from applying the three-pronged Chevron Oil test in deciding the retroactivity issue in the present case." Ibid.
We disagree. Davis did not hold that preferential state tax treatment of state and local employee pensions, though constitutionally invalid in the future, should be upheld as to all events predating the announcement of Davis. The governmental appellee in Davis "conceded that a refund [would have been] appropriate" if we were to conclude that "the Michigan Income Tax Act violate[d] principles of intergovernmental tax immunity by favoring retired state and local governmental employees over retired federal employees." 489 U. S., at 817. We stated that "to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund." Ibid. Far from reserving the retroactivity question, our response to the appellee's concession constituted a retroactive application of the rule announced in Davis to the parties before the Court. Because a decision to accord solely prospective effect to Davis would have foreclosed any discussion of remedial issues, our "consideration of remedial issues" meant "necessarily" that we retroactively applied the rule we announced in Davis to the litigants before us. Beam, supra, at 539 (opinion of Souter, J.).
III
Respondent Virginia Department of Taxation defends the judgment below as resting on an independent and adequate state ground that relieved the Supreme Court of Virginia of any obligation to apply Davis to events occurring before our announcement of that decision. Petitioners had contended that "even if the Davis decision applie[d] prospectively only," they were entitled to relief under Virginia's tax refund statute, Va. Code Ann. § 58.1-1826 (1991). Harper v. Virginia Dept. of Taxation, 241 Va., at 241, 401 S. E. 2d, at 873. The Virginia court rejected their argument. It first reasoned that because Davis did not apply retroactively, tax assessments predating Davis were "neither erroneous nor improper within the meaning" of Virginia's tax statute. Ibid. The court then offered "another reason" for rejecting petitioners' "state-law contention": "We previously have held that this Court's ruling declaring a taxing scheme unconstitutional is to be applied prospectively only." Ibid. (citing Perkins v. Albemarle County, 214 Va. 240, 198 S.E.2d 626, aff'd and modified on rehearing, 214 Va. 416, 200 S.E.2d 566 (1973); Capehart v. City of Chesapeake, No. 5459 (Va. Cir. Ct., Oct. 16, 1974), appeal denied, 215 Va. xlvii, cert. denied, 423 U.S. 875 (1975)). The formulation of this state-law retroactivity doctrine—that "consideration should be given to the purpose of the new rule, the extent of the reliance on the old rule, and the effect on the administration of justice of a retroactive application of the new rule," Fountain v. Fountain, 214 Va. 347, 348, 200 S.E.2d 513, 514 (1973), cert. denied, 416 U.S. 939 (1974), quoted in 241 Va., at 241, 401 S. E. 2d, at 874—suggests that the Supreme Court of Virginia has simply incorporated into state law the threepronged analysis of Chevron Oil, 404 U. S., at 106-107, and
We reject the department's defense of the decision below. The Supremacy Clause, U. S. Const., Art. VI, cl. 2, does not allow federal retroactivity doctrine to be supplanted by the invocation of a contrary approach to retroactivity under state law. Whatever freedom state courts may enjoy to limit the retroactive operation of their own interpretations of state law, see Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-366 (1932), cannot extend to their interpretations of federal law. See National Mines Corp. v. Caryl, 497 U.S. 922, 923 (1990) (per curiam); Ashland Oil, Inc. v. Caryl, 497 U.S. 916, 917 (1990) (per curiam).
We also decline the Department of Taxation's invitation to affirm the judgment as resting on the independent and adequate ground that Virginia's law of remedies offered no "retrospective refund remedy for taxable years concluded before Davis " was announced. Brief for Respondent 33. The Virginia Supreme Court's conclusion that the challenged tax assessments were "neither erroneous nor improper within the meaning" of the refund statute rested solely on the court's determination that Davis did not apply retroactively. Harper v. Virginia Dept. of Taxation, supra, at 241, 401 S. E. 2d, at 873.
Because we have decided that Davis applies retroactively to the tax years at issue in petitioners' refund action, we reverse the judgment below. We do not enter judgment for petitioners, however, because federal law does not necessarily entitle them to a refund. Rather, the Constitution requires Virginia "to provide relief consistent with federal due process principles." American Trucking, 496 U. S., at 181 (plurality opinion). Under the Due Process Clause, U. S. Const., Amdt. 14, § 1, "a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination." McKesson Corp. v. Division of
The constitutional sufficiency of any remedy thus turns (at least initially) on whether Virginia law "provide[s] a[n] [adequate] form of `predeprivation process,' for example, by authorizing taxpayers to bring suit to enjoin imposition of a tax
IV
We reverse the judgment of the Supreme Court of Virginia, and we remand the case for further proceedings not inconsistent with this opinion.
So ordered.
Justice Scalia, concurring.
I am surprised to see an appeal to stare decisis in today's dissent. In Teague v. Lane, 489 U.S. 288 (1989), Justice O'Connor wrote for a plurality that openly rejected settled precedent controlling the scope of retroactivity on collateral review. "This retroactivity determination," the opinion said, "would normally entail application of the Linkletter [v. Walker, 381 U.S. 618 (1965),] standard, but we believe that our approach to retroactivity for cases on collateral review requires modification." Id., at 301. The dissent in Teague was a sort of anticipatory echo of today's dissent, criticizing the plurality for displaying "infidelity to the doctrine of stare decisis," id., at 331 (Brennan, J., dissenting), for "upset[ting]. . . our time-honored precedents," id., at 333, for "repudiating our familiar approach without regard for the doctrine of stare decisis," id., at 345, and for failing "so much as [to] mention stare decisis," id., at 333.
Contrary to the dissent's assertion that Chevron Oil articulated "our traditional retroactivity analysis," post, at 113, the jurisprudence it reflects "came into being," as Justice Harlan observed, less than 30 years ago with Linkletter v. Walker, 381 U.S. 618 (1965). Mackey, supra, at 676. It is so unancient that one of the current Members of this Court was sitting when it was invented. The true traditional view is that prospective decisionmaking is quite incompatible with the judicial power, and that courts have no authority to engage in the practice. See ante, at 94; James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 534 (1991) (opinion of Souter, J.); American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J., concurring in judgment); Desist, supra, at 258-259 (Harlan, J., dissenting); Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 365 (1932). Linkletter itself recognized that "[a]t common law there was no authority for the proposition that judicial decisions made law only for the future." 381 U. S., at 622-623. And before Linkletter, the academic proponents of prospective judicial decisionmaking acknowledged that their proposal contradicted traditional practice. See, e. g., Levy, supra, at 2, and n. 2; Carpenter, Court Decisions and the Common Law, 17 Colum. L. Rev. 593, 594 (1917). Indeed, the roots of the contrary tradition are so deep that Justice Holmes was prepared to hazard the guess that "[j]udicial decisions have had retrospective operation for near a thousand years." Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910) (dissenting opinion).
Justice O'Connor asserts that "`[w]hen the Court changes its mind, the law changes with it.' " Post, at 115 (quoting Beam, supra, at 550 (O'Connor, J., dissenting)). That concept is quite foreign to the American legal and constitutional
Prospective decisionmaking was known to foe and friend alike as a practical tool of judicial activism, born out of disregard
Justice Harlan described this Court's embrace of the prospectivity principle as "the product of the Court's disquietude with the impacts of its fast-moving pace of constitutional innovation," Mackey, supra, at 676. The Court itself, however, glowingly described the doctrine as the cause rather than the effect of innovation, extolling it as a "technique" providing the "impetus . . . for the implementation of long overdue reforms." Jenkins v. Delaware, 395 U.S. 213, 218 (1969). Whether cause or effect, there is no doubt that the era which gave birth to the prospectivity principle was marked by a newfound disregard for stare decisis. As one
In sum, I join the opinion of the Court because the doctrine of prospective decisionmaking is not in fact protected
Justice Kennedy, with whom Justice White joins, concurring in part and concurring in the judgment.
I remain of the view that it is sometimes appropriate in the civil context to give only prospective application to a judicial decision. "[P]rospective overruling allows courts to respect the principle of stare decisis even when they are impelled to change the law in light of new understanding." American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 197 (1990) (plurality opinion). When a court promulgates a new rule of law, prospective application functions "to avoid injustice or hardship to civil litigants who have justifiably relied on prior law." Id., at 199 (internal quotation marks omitted). See Phoenix v. Kolodziejski, 399 U.S. 204, 213-215 (1970); Cipriano v. City of Houma, 395 U.S. 701, 706 (1969) (per curiam); England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 422 (1964). And in my view retroactivity in civil cases continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971). Thus, for the reasons explained by Justice O'Connor, post, at 113-117, I cannot agree with the Court's broad dicta, ante, at 95-97, that appears to embrace in the civil context the retroactivity principles adopted for criminal cases in Griffith v. Kentucky, 479 U.S. 314 (1987). As Justice O'Connor has demonstrated elsewhere, the differences between the civil and criminal contexts counsel strongly against adoption of Griffith for civil cases. See American Trucking Assns., Inc. v. Smith, supra, at 197-199. I also cannot accept the Court's conclusion, ante, at 96-99, which is based on Justice Souter's opinion in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540-543 (1991), that a decision of this Court must be applied in a retroactive manner simply because the rule of law there announced happened to be applied to the parties then before the Court.
I nonetheless agree with the Court that Davis v. Michigan Dept. of Treasury, 489 U.S. 803 (1989), must be given retroactive effect. The first condition for prospective application of any decision is that itmust announce a new rule of law. Ashland Oil, Inc. v. Caryl, 497 U.S. 916, 918 (1990) (per curiam); American Trucking Assns., Inc. v. Smith, supra, at 179; United States v. Johnson, 457 U.S. 537, 550, n. 12 (1982); Chevron Oil Co. v. Huson, 404 U. S., at 106-107. The decision must "overrul[e] clear past precedent on which litigants may have relied" or "decid[e] an issue of first impression whose resolution was not clearly foreshadowed." Id. , at 106. Because Davis did neither, it did not announce new law and therefore must be applied in a retroactive manner.
Respondent argues that two new principles of law were established in Davis. First, it points to the holding that 4 U. S. C. § 111, in which the United States consents to state taxation of the compensation of "an officer or employee of the United States," applies to federal retirees as well as current federal employees. Brief for Respondent 16-18. See Davis, 489 U. S., at 808-810. In Davis, however, we indicated that this holding was "dictate[d]" by "the plain language of the statute," id., at 808, and we added for good measure our view that the language of the statute was "unambiguous," "unmistakable," and "leaves no room for doubt," id., at 809, n. 3, 810. Given these characterizations, it is quite implausible to contend that in this regard Davis decided "an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil, supra, at 106.
The second new rule respondent contends the Court announced in Davis was that the state statute at issue discriminated against federal retirees even though the statute treated them like all other state taxpayers except state employees.
Far from being "revolutionary," Ashland Oil Co. v. Caryl, supra, at 920, or "an avulsive change which caused the current of the law thereafter to flow between new banks," Hanover Shoe, Inc. v. United Shoe Machinery Co., 392 U.S. 481, 499 (1968), Davis was a mere application of plain statutory language and existing precedent. In these circumstances, this Court is not free to mitigate any financial hardship that might befall Virginia's taxpayers as a result of their state government's failure to reach a correct understanding of the unambiguous dictates of federal law.
Because I do not believe that Davis v. Michigan Dept. of Treasury, supra, announced a new principle of law, I have no occasion to consider Justice O'Connor's argument, post, at 131-136, that equitable considerations may inform the formulation of remedies when a new rule is announced. In any event, I do not read Part III of the Court's opinion as saying anything inconsistent with what Justice O'Connor proposes.
On this understanding, I join Parts I and III of the Court's opinion and concur in its judgment.
Today the Court applies a new rule of retroactivity to impose crushing and unnecessary liability on the States, precisely at a time when they can least afford it. Were the Court's decision the product of statutory or constitutional command, I would have no choice but to join it. But nothing in the Constitution or statute requires us to adopt the retroactivity rule the majority now applies. In fact, longstanding precedent requires the opposite result. Because I see no reason to abandon our traditional retroactivity analysis as articulated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106— 107 (1971), and because I believe the Supreme Court of Virginia correctly applied Chevron Oil in this case, I would affirm the judgment below.
I
This Court's retroactivity jurisprudence has become somewhat chaotic in recent years. Three Terms ago, the case of American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990), produced three opinions, none of which garnered a majority. One Term later, James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), yielded five opinions; there, no single writing carried more than three votes. As a result, the Court today finds itself confronted with such disarray that, rather than relying on precedent, it must resort to vote counting: Examining the various opinions in Jim Beam, it discerns six votes for a single proposition that, in its view, controls this case. Ante, at 96-97.
If we had given appropriate weight to the principle of stare decisis in the first place, our retroactivity jurisprudence never would have become so hopelessly muddled. After all, it was not that long ago that the law of retroactivity for civil cases was considered well settled. In Chevron Oil Co. , we explained that whether a decision will be nonretroactive depends on whether it announces a new rule, whether prospectivity would undermine the purposes of the
I fear that the Court today, rather than rectifying that confusion, reinforces it still more. In the usual case, of course, retroactivity is not an issue; the courts simply apply their best understanding of current law in resolving each case that comes before them. James B. Beam, 501 U. S., at 534, 535-536 (Souter, J.). But where the law changes in some respect, the courts sometimes may elect not to apply the new law; instead, they apply the law that governed when the events giving rise to the suit took place, especially where the change in law is abrupt and the parties may have relied on the prior law. See id., at 534. This can be done in one of two ways. First, a court may choose to make the decision purely prospective, refusing to apply it not only to the parties before the court but also to any case where the relevant facts predate the decision. Id., at 536. Second, a court may apply the rule to some but not all cases where the operative events occurred before the court's decision, depending on the equities. See id., at 537. The first option is called "pure prospectivity" and the second "selective prospectivity."
As the majority notes, ante, at 96-97, six Justices in James B. Beam, supra, expressed their disagreement with selective prospectivity. Thus, even though there was no majority
Rather than limiting its pronouncements to the question of selective prospectivity, the Court intimates that pure prospectivity may be prohibited as well. See ante, at 97 (referring to our lack of "`constitutional authority . . . to disregard current law' "); ibid. (relying on "`basic norms of constitutional adjudication' " (quoting Griffith, supra, at 322)); see also ante, at 94 (touting the "fundamental rule of `retrospective operation' " of judicial decisions). The intimation is incorrect. As I have explained before and will touch upon only briefly here:
Nor can the Court's suggestion be squared with our cases, which repeatedly have announced rules of purely prospective effect. See, e. g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88 (1982); Chevron Oil, 404
In any event, the question of pure prospectivity is not implicated here. The majority first holds that once a rule has been applied retroactively, the rule must be applied retroactively to all cases thereafter. Ante, at 97. Then it holds that Davis v. Michigan Dept. of Treasury, 489 U.S. 803 (1989), in fact retroactively applied the rule it announced. Ante, at 98-99. Under the majority's approach, that should end the matter: Because the Court applied the rule retroactively in Davis, it must do so here as well. Accordingly, there is no reason for the Court's careless dictum regarding pure prospectivity, much less dictum that is contrary to clear precedent.
Plainly enough, Justice Scalia would cast overboard our entire retroactivity doctrine with precisely the "unceremonious `heave-ho' " he decries in his concurrence. See ante, at 109. Behind the undisguised hostility to an era whose jurisprudence he finds distasteful, Justice Scalia raises but two substantive arguments, both of which were raised in James B. Beam , 501 U. S., at 549 (Scalia, J., concurring in judgment), and neither of which has been adopted by a majority of this Court. Justice White appropriately responded to those arguments then, see id., at 546 (opinion concurring in judgment), and there is no reason to repeat the responses now. As Justice Frankfurter explained more than 35 years ago:
II
I dissented in James B. Beam because I believed that the absolute prohibition on selective prospectivity was not only contrary to precedent, but also so rigid that it produced unconscionable results. I would have adhered to the traditional equitable balancing test of Chevron Oil as the appropriate method of deciding the retroactivity question in individual cases. But even if one believes the prohibition on selective prospectivity desirable, it seems to me that the Court today takes that judgment to an illogical—and inequitable—extreme. It is one thing to say that, where we have considered prospectivity in a prior case and rejected it, we must reject it in every case thereafter. But it is quite another to hold that, because we did not consider the possibility of prospectivity in a prior case and instead applied a rule retroactively through inadvertence, we are foreclosed from considering the issue forever thereafter. Such a rule is both contrary to established precedent and at odds with any notion of fairness or sound decisional practice. Yet that is precisely the rule the Court appears to adopt today. Ante, at 96-97.
A
Under the Court's new approach, we have neither authority nor discretion to consider the merits of applying Davis v. Michigan Dept. of Treasury, supra, retroactively. Instead, we must inquire whether any of our previous decisions happened to have applied the Davis rule retroactively to the parties before the Court. Deciding whether we in fact have applied Davis retroactively turns out to be a rather difficult matter. Parsing the language of the Davis opinion, the Court encounters a single sentence it declares determinative: "The State having conceded that a refund is appropriate in
One might very well debate the meaning of the single sentence on which everyone relies. But the debate is as meaningless as it is indeterminate. In Brecht v. Abrahamson, 507 U.S. 619 (1993), we reaffirmed our longstanding rule that, if a decision does not "squarely addres[s] [an] issue," this Court remains "free to address [it] on the merits" at a later date. Id., at 631. Accord, United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (issue not "raised in briefs or argument nor discussed in the opinion of the Court" cannot be taken as "a binding precedent on th[e] point"); Webster v. Fall, 266 U.S. 507, 511 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not considered as having been so decided as to constitute precedents"). The rule can be traced back to some of the earliest of this Court's decisions. See statement of Marshall, C. J.,as reported in the arguments of counsel in United States v. More, 3 Cranch 159, 172 (1805) ("No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case"). Regardless of
In fact, there is far less reason to consider ourselves bound by precedent today than there was in Brecht. In Brecht, the issue was not whether a legal question was resolved by a single case; it was whether our consistent practice of applying a particular rule, Chapman v. California, 386 U.S. 18, 24 (1967), to cases on collateral review precluded us from limiting the rule's application to cases on direct review. Because none of our prior cases directly had addressed the applicability of Chapman to cases on collateral review—each had only assumed it applied—the Court held that those cases did not bind us to any particular result. See Brecht, supra, at 630-631. I see no reason why a single retroactive application of the Davis rule, inferred from the sparse and ambiguous language of Davis itself, should carry more weight here than our consistent practice did in Brecht.
The Court offers no justification for disregarding the settled rule we so recently applied in Brecht. Nor do I believe it could, for the rule is not a procedural nicety. On the contrary, it is critical to the soundness of our decisional processes. It should go without saying that any decision of this Court has wide-ranging applications; nearly every opinion we issue has effects far beyond the particular case in which it issues. The rule we applied in Brecht, which limits the stare decisis effect of our decisions to questions actually considered and passed on, ensures that this Court does not decide important questions by accident or inadvertence. By adopting a contrary rule in the area of retroactivity, the
This case demonstrates the danger of such a rule. The question of retroactivity was never briefed in Davis. It had not been passed upon by the court below. And it was not within the question presented. Indeed, at oral argument we signaled that we would not pass upon the retroactivity of the rule Davis would announce. After conceding that the Michigan Department of Taxation would give Davis himself a refund if he prevailed, counsel for the department argued that it would be unfair to require Michigan to provide refunds to the 24,000 taxpayers who were not before the Court. The following colloquy ensued:
Now, however, the Court holds that the question was implicitly before us and that, even though the Davis opinion does not even discuss the question of retroactivity, it resolved the issue conclusively and irretrievably.
If Davis somehow did decide that its rule was to be retroactive, it was by chance and not by design. The absence of briefing, argument, or even mention of the question belies any suggestion that the issue was given thoughtful consideration. Even the author of the Davis opinion refuses to accept
The Court's decision today cannot be justified by comparison to our decision in Griffith v. Kentucky, 479 U.S. 314 (1987), which abandoned selective prospectivity in the criminal context. Ante, at 97. As I explained in American Trucking Assns., 496 U. S., at 197-200, there are significant differences between criminal and civil cases that weigh against such an extension. First, nonretroactivity in criminal cases historically has favored the government's reliance interests over the rights of criminal defendants. As a result, the generalized policy of favoring individual rights over governmental prerogative can justify the elimination of prospectivity in the criminal arena. The same rationale cannot apply in civil cases, as nonretroactivity in the civil context does not necessarily favor plaintiffs or defendants; "nor is there any policy reason for protecting one class of litigants over another." Id., at 198. More important, even a party to civil litigation who is "deprived of the full retroactive benefit of a new decision may receive some relief." Id., at 198— 199. Here, for example, petitioners received the benefit of prospective invalidation of Virginia's taxing scheme. From this moment forward, they will be treated on an equal basis with all other retirees, the very treatment our intergovernmental immunity cases require. The criminal defendant, in contrast, is usually interested only in one remedy—reversal of his conviction. That remedy can be obtained only if the rule is applied retroactively. See id. , at 199.
Nor can the Court's rejection of selective retroactivity in the civil context be defended on equal treatment grounds. See Griffith, supra, at 323 (selective retroactivity accords a benefit to the defendant in whose case the decision is announced but not to any defendant thereafter). It may well
If the Court is concerned with equal treatment, that difference should be dispositive. Having failed to demand the unusual, prospectivity, respondent in Davis got the usual— namely, retroactivity. Respondent in this case has asked for the unusual. In fact, respondent here defends a judgment below that awarded it just that. I do not see how the principles of equality can support forcing the Commonwealth of Virginia to bear the harsh consequences of retroactivity simply because, years ago, the Michigan Department of Taxation failed to press the issue—and we neglected to consider it. Instead, the principles of fairness favor addressing the contentions the Virginia Department of Taxation presses before us by applying Chevron Oil today. It is therefore to Chevron Oil that I now turn.
B
Under Chevron Oil, whether a decision of this Court will be applied nonretroactively depends on three factors. First, as a threshold matter, "the decision to be applied nonretroactively must establish a new principle of law." 404 U. S., at 106. Second, nonretroactivity must not retard the new rule's operation in light of its history, purpose, and effect. Id., at 107. Third, nonretroactivity must be necessary to avoid the substantial injustice and hardship that a holding of retroactivity might impose. Ibid. In my view, all three factors favor holding our decision in Davis nonretroactive.
As Justice Kennedy points out in his concurrence, ante, at 111, a decision cannot be made nonretroactive unless it announces "a new principle of law." Chevron Oil, 404 U. S., at 106. For purposes of civil retroactivity, Chevron Oil identifies two types of decisions that can be new. First, a decision is new if it overturns "clear past precedent on which litigants may have relied." Ibid.; ante, at 111 (Kennedy, J., concurring in part and concurring in judgment). I agree with Justice Kennedy that Davis did not represent such a "`revolutionary' " or "`avulsive change' " in the law. Ante, at 112 (quoting Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 499 (1968)).
Nonetheless, Chevron also explains that a decision may be "new" if it resolves "an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil, supra, at 106 (emphasis added). Thus, even a decision that is "controlled by the . . . principles" articulated in precedent may announce a new rule, so long as the rule was "sufficiently debatable" in advance. Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 1109 (1983) (O'Connor, J., concurring). Reading the Davis opinion alone, one might get the impression that it did not announce a new rule even of that variety. The opinion's emphatic language suggests that the outcome was not even debatable. See ante, at 111 (Kennedy, J., concurring in part and concurring in judgment). In my view, however, assertive language is not itself determinative. As The Chief Justice explained for the Court in a different context:
In Butler, we determined that the rule announced in Arizona v. Roberson, 486 U.S. 675 (1988), was "new" for purposes of Teague v. Lane, 489 U.S. 288 (1989), despite Roberson `s repeated assertions that its rule was "directly controlled" by precedent. Indeed, we did not even feel bound by the opinion's statement that it was not announcing a new rule at all but rather declining to create an exception to an existing rule. While Teague and its progeny may not provide the appropriate standard of novelty for Chevron Oil purposes, their teaching—that whether an opinion is new depends not on its language or tone but on the legal landscape from which it arose—obtains nonetheless.
In any event, Justice Stevens certainly thought that Davis announced a new rule. In fact, he thought that the rule was not only unprecedented, but wrong: "The Court's holding is not supported by the rationale for the intergovernmental immunity doctrine and is not compelled by our previous decisions. I cannot join the unjustified, court-imposed restriction on a State's power to administer its own affairs." 489 U. S., at 818-819 (dissenting opinion). And just last Term two Members of this Court expressed their disagreement with the decision in Davis, labeling its application of the doctrine of intergovernmental immunity "perverse." Barker v. Kansas, 503 U.S. 594, 606 (1992) (Stevens, J., joined by Thomas, J., concurring). Although I would not call our decision in Davis perverse, I agree that its rule was sufficiently debatable in advance as to fall short of being "clearly foreshadowed." The great weight of authority is in accord.
An examination of the decision in Davis and its predecessors reveals that Davis was anything but clearly foreshadowed. Of course, it was well established long before Davis that the nondiscrimination principle of 4 U. S. C. § 111 and the doctrine of intergovernmental immunity prohibit a State from imposing a discriminatory tax on the United States or
As Justice Stevens explained more thoroughly in his Davis dissent, 489 U. S., at 819—and as we have recognized since McCulloch v. Maryland, 4 Wheat. 316 (1819)—intergovernmental immunity is necessary to prevent the States from interfering with federal interests through taxation. Because the National Government has no recourse to the state ballot box, it has only a limited ability to protect itself against excessive state taxes. But the risk of excessive taxation of federal interests is eliminated, and "[a] `political check' is provided, when a state tax falls" not only on the Federal Government, but also "on a significant group of state citizens who can be counted upon to use their votes to keep the State from raising the tax excessively, and thus placing an unfair burden on the Federal Government."
Washington v. United States, 460 U.S. 536, 545 (1983) (emphasis added). Accord, United States v. County of Fresno, 429 U.S. 452, 462-464 (1977); South Carolina v. Baker, 485 U.S. 505, 526, n. 15 (1988).
There can be no doubt that the taxation scheme at issue in Davis and the one employed by the Commonwealth of
In addition, distinguishing between taxation of state retirees and all others, including private and federal retirees, was justifiable from an economic standpoint. The State, after all, does not merely collect taxes from its retirees; it pays their benefits as well. As a result, it makes no difference to the State or the retirees whether the State increases state retirement benefits in an amount sufficient to cover taxes it imposes, or whether the State offers reduced benefits and makes them tax free. The net income level of the retirees and the impact on the state fisc is the same. Thus, the Michigan Department of Taxation had a good argument that its differential treatment of state and federal retirees was "directly related to, and justified by, [a] significant differenc[e] between the two classes," id., at 816 (internal quotation marks omitted): Taxing federal retirees enhances the State's fisc, whereas taxing state retirees does not.
I recite these arguments not to show that the decision in Davis was wrong—I joined the opinion then and remain of the view that it was correct—but instead to point out that the arguments on the other side were substantial. Of course, the Court was able to "ancho[r] its decision in precedent," ante, at 112 (Kennedy, J., concurring in part and concurring
2
The second Chevron Oil factor is whether denying the rule retroactive application will retard its operation in light of the rule's history, purpose, and effect. 404 U. S., at 107. That factor overwhelmingly favors respondent. The purpose of the intergovernmental immunity doctrine is to protect the rights of the Federal Sovereign against state interference. It does not protect the private rights of individuals:
Accord, Davis, supra, at 814 ("[I]ntergovernmental tax immunity is based on the need to protect each sovereign's governmental operations from undue interference by the other"). Affording petitioners retroactive relief in this case would not vindicate the interests of the Federal Government. Instead, it lines the pockets of the Government's former employees. It therefore comes as no surprise that the United States, despite its consistent participation in intergovernmental immunity cases in the past, has taken no position here. Because retroactive application of the rule in Davis serves petitioners' interests but not the interests intergovernmental
3
The final factor under Chevron Oil is whether the decision "`could produce substantial inequitable results if applied retroactively.' " Chevron Oil, supra, at 107 (quoting Cipriano v. City of Houma, 395 U. S., at 706). We repeatedly have declined to give our decisions retroactive effect where doing so would be unjust. In Arizona Governing Committee v. Norris, supra, for example, we declined to apply a Title VII decision retroactively, noting that the resulting "unanticipated financial burdens would come at a time when many States and local governments are struggling to meet substantial fiscal deficits." Id., at 1106-1107 (Powell, J., joined by Burger, C. J., Blackmun, Rehnquist, and O'Connor, JJ.). There was "no justification" for "impos[ing] this magnitude of burden retroactively on the public," we concluded. Id., at 1107. Accord, id., at 1107-1111 (O'Connor, J., concurring); see id., at 1075 (per curiam). Similarly, we declined to afford the plaintiff full retroactive relief in Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 718-723 (1978) (Stevens, J.). There, too, we explained that "[r]etroactive liability could be devastating" and that "[t]he harm would fall in large part on innocent third parties." Id. , at 722-723.
Those same considerations exist here. Retroactive application of rulings that invalidate state tax laws have the potential for producing "disruptive consequences for the State[s] and [their] citizens. A refund, if required by state or federal law, could deplete the state treasur[ies], thus threatening the State[s'] current operations and future plans." American Trucking Assns., Inc. v. Smith, 496 U. S., at 182 (plurality opinion). Retroactive application of Davis is no exception. "The fiscal implications of Davis for the
It cannot be contended that such a burden is justified by the States' conduct, for the liability is entirely disproportionate to the offense. We do not deal with a State that willfully violated the Constitution but rather one that acted entirely in good faith on the basis of an unchallenged statute. Moreover, during the four years in question, the constitutional violation produced a benefit of approximately $8 million to $12 million per year, Tr. of Oral Arg. 33, 36, and that benefit accrued not to the Commonwealth but to individual retirees.
Petitioners, in contrast, would suffer no hardship if the Court refused to apply Davis retroactively. For years, 23 States enforced taxation schemes like the Commonwealth's in good faith, and for years not a single taxpayer objected on intergovernmental immunity grounds. No one put the States on notice that their taxing schemes might be constitutionally suspect. Denying Davis retroactive relief thus would not deny petitioners a benefit on which they had relied. It merely would deny them an unanticipated windfall. Because that windfall would come only at the cost of imposing hurtful consequences on innocent taxpayers and the communities in which they live, I believe the substantial inequity of imposing retroactive relief in this case, like the other Chevron factors, weighs in favor of denying Davis retroactive application.
III
Even if the Court is correct that Davis must be applied retroactively in this case, there is the separate question of the remedy that must be given. The questions of retroactivity and remedy are analytically distinct. American Trucking Assns., Inc. v. Smith, supra, at 189 (plurality opinion) ("[T]he Court has never equated its retroactivity principles with remedial principles"). As Justice Souter explained in James B. Beam, supra, at 534, retroactivity is a matter of choice of law "[s]ince the question is whether the court
The question of remedy, however, is quite different. The issue is not whether to apply new law or old law, but what relief should be afforded once the prevailing party has been determined under applicable law. See James B. Beam, 501 U. S., at 535 (Souter, J.) ("Once a rule is found to apply `backward,' there may then be a further issue of remedies, i. e., whether the party prevailing under a new rule should obtain the same relief that would have been awarded if the rule had been an old one"). The question of remedies is in the first instance a question of state law. See ibid. ("[T]he remedial inquiry is one governed by state law, at least where the case originates in state court"). In fact, the only federal question regarding remedies is whether the relief afforded is sufficient to comply with the requirements of due process. See McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 31-52 (1990).
While the issue of retroactivity is properly before us, the question of remedies is not. It does not appear to be within the question presented, which asks only if Davis may be applied "nonretroactively so as to defeat federal retirees' entitlement to refunds." Pet. for Cert. i. Moreover, our consideration of the question at this juncture would be inappropriate, as the Supreme Court of Virginia has yet to consider what remedy might be available in light of Davis ` retroactivity and applicable state law. The Court inexplicably discusses the question at length nonetheless, noting that if the Commonwealth of Virginia provides adequate predeprivation remedies, it is under no obligation to provide full retroactive refunds today. Ante, at 100-102.
When courts take it upon themselves to issue helpful guidance in dictum, they risk creating additional confusion by
Over 20 years ago, Justice Harlan recognized that the equities could be taken into account in determining the appropriate remedy when the Court announces a new rule of constitutional law:
The commentators appear to be in accord. See Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1733 (1991) (urging consideration of novelty and hardship as part of the remedial framework rather than as a question of whether to apply old law or new). In my view, and in light of the Court's revisions to the law of retroactivity, it should be constitutionally permissible for the equities to inform the remedial inquiry. In a particularly compelling case, then, the equities might permit a State to deny taxpayers a full refund despite having refused them predeprivation process.
Indeed, some Members of this Court have argued that we recognized as much long ago. In American Trucking Assns., 496 U. S., at 219-224 (dissenting opinion), Justice Stevens admitted that this Court repeatedly had applied the Chevron Oil factors to preclude the provision of monetary
The Court cites only a single case that might be read as precluding courts from considering the equities when selecting the remedy for the violation of a novel constitutional rule. That case is McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, supra. Ante, at 101-102. But, as the controlling opinion in James B. Beam explains, McKesson cannot be so read. 501 U. S., at 544 ("Nothing we say here [precludes the right] to raise procedural bars to recovery under state law or demonstrate reliance interests entitled to consideration in determining the nature of the remedy that must be provided, a matter with which McKes-
The circumstances in McKesson were quite different than those here. In McKesson, the tax imposed was patently unconstitutional: The State of Florida collected taxes under its Liquor Tax statute even though this Court already had invalidated a "virtually identical" tax. Id., at 46. Given that the State could "hardly claim surprise" that its statute was declared invalid, this Court concluded that the State's reliance on the presumptive validity of its statute was insufficient to preclude monetary relief. Ibid. As we explained in American Trucking Assns., the large burden of retroactive relief is "largely irrelevant when a State violates constitutional norms well established under existing precedent." We cited McKesson as an example. 496 U. S., at 183 (plurality opinion).
A contrary reading of McKesson would be anomalous in light of this Court's immunity jurisprudence. The Federal Government, for example, is absolutely immune from suit absent an express waiver of immunity; and federal officers enjoy at least qualified immunity when sued in a Bivens action. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). As a result, an individual who suffers a constitutional deprivation at the hands of a federal officer very well may have no access to backwards-looking (monetary) relief. I do not see why the Due Process Clause would
In my view, ifthe Court is going to restrict authority to temper hardship by holding our decisions nonretroactive through the Chevron Oil factors, it must afford courts the ability to avoid injustice by taking equity into account when formulating the remedy for violations of novel constitutional rules. See Fallon & Meltzer, 104 Harv. L. Rev. 1733 (1991). Surely the Constitution permits this Court to refuse plaintiffs full backwards-looking relief under Chevron Oil; we repeatedly have done so in the past. American Trucking Assns., supra, at 188-200 (canvassing the Court's practice); see also supra, at 115-116, 129. I therefore see no reason why it would not similarly permit state courts reasonably to consider the equities in the exercise of their sound remedial discretion.
IV
In my view, the correct approach to the retroactivity question before us was articulated in Chevron Oil some 22 years ago. By refusing to apply Chevron Oil today, the Court not only permits the imposition of grave and gratuitous hardship on the States and their citizens, but also disregards settled precedents central to the fairness and accuracy of our decisional processes. Nor does the Court cast any light on the nature of the regime that will govern from here on. To the contrary, the Court's unnecessary innuendo concerning pure prospectivity and ill-advised dictum regarding remedial issues introduce still greater uncertainty and disorder into this already chaotic area. Because I cannot agree with the Court's decision or the manifestly unjust results it appears to portend, I respectfully dissent.
FootNotes
Briefs of amici curiae were filed for Designated Federal Retirees in Kansas et al. by John C. Frieden, Kevin M. Fowler, Kenton C. Granger, Roger M. Theis, Carrold E. Ray, G. Eugene Boyce, Donald L. Smith, Edmund F. Sheehy, Jr., Brian A. Luscher, Gene M. Connell, Jr., and J. Doyle Fuller; for James B. Beam Distilling Co. by Morton Siegel, Michael A. Moses, Richard G. Schoenstadt, James L. Webster, and John L. Taylor, Jr.; for the Military Coalition by Eugene O. Duffy; and for the Virginia Manufacturers Association by Walter A. Smith, Jr.
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