HORNE, SUPERINTENDENT, ARIZONA PUBLIC INSTRUCTION v. FLORES et al.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
433 OCTOBER TERM, 2008
Syllabus
HORNE, SUPERINTENDENT, ARIZONA PUBLIC
INSTRUCTION v. FLORES et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 08–289. Argued April 20, 2009—Decided June 25, 2009*
A group of English language-learner (ELL) students and their parents
(plaintiffs) filed a class action, alleging that Arizona, its state board of
education, and the superintendent of public instruction (defendants)
were providing inadequate ELL instruction in the Nogales Unified
School District (Nogales), in violation of the Equal Educational Opportu
nities Act of 1974 (EEOA), which requires States to take “appropriate
action to overcome language barriers” in schools, 20 U. S. C. § 1703(f).
In 2000, the Federal District Court entered a declaratory judgment,
finding an EEOA violation in Nogales because the amount of funding
the State allocated for the special needs of ELL students (ELL incre
mental funding) was arbitrary and not related to the actual costs of
ELL instruction in Nogales. The District Court subsequently ex
tended relief statewide and, in the years following, entered a series of
additional orders and injunctions. The defendants did not appeal any
of the District Court’s orders. In 2006, the state legislature passed HB
2064, which, among other things, increased ELL incremental funding.
The incremental funding increase required District Court approval, and
the Governor asked the state attorney general to move for accelerated
consideration of the bill. The state board of education, which joined
the Governor in opposing HB 2064, the State, and the plaintiffs are
respondents here. The Speaker of the State House of Representatives
and the President of the State Senate (Legislators) intervened and, with
the superintendent (collectively, petitioners), moved to purge the con
tempt order in light of HB 2064. In the alternative, they sought relief
under Federal Rule of Civil Procedure 60(b)(5). The District Court de
nied their motion to purge the contempt order and declined to address
the Rule 60(b)(5) claim. The Court of Appeals vacated and remanded
for an evidentiary hearing on whether changed circumstances warranted
Rule 60(b)(5). On remand, the District Court denied the Rule 60(b)(5)
motion, holding that HB 2064 had not created an adequate funding sys
*Together with No. 08–294, Speaker of the Arizona House of Repre
sentatives et al. v. Flores et al., also on certiorari to the same court.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
434 HORNE v. FLORES
Syllabus
tem. Affirming, the Court of Appeals concluded that Nogales had not
made sufficient progress in its ELL programming to warrant relief.
Held:
1. The superintendent has standing. To establish Article III stand
ing, a plaintiff must present an injury that is concrete, particularized,
and actual or imminent; fairly traceable to the defendant’s challenged
action; and redressable by a favorable ruling. Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561. Here, the superintendent was a
named defendant, the declaratory judgment held him in violation of the
EEOA, and the injunction runs against him. Because the superintend
ent has standing, the Court need not consider whether the Legislators
also have standing. Pp. 445–447.
2. The lower courts did not engage in the proper analysis under Rule
60(b)(5). Pp. 447–470.
(a) Rule 60(b)(5), which permits a party to seek relief from a judg
ment or order if “a significant change either in factual conditions or in
law” renders continued enforcement “detrimental to the public inter
est,” Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 384, serves
a particularly important function in “institutional reform litigation,” id.,
at 380. Injunctions in institutional reform cases often remain in force
for many years, during which time changed circumstances may warrant
reexamination of the original judgment. Injunctions of this sort may
also raise sensitive federalism concerns, which are heightened when, as
in these cases, a federal-court decree has the effect of dictating state or
local budget priorities. Finally, institutional reform injunctions bind
state and local officials to their predecessors’ policy preferences and may
thereby “improperly deprive future officials of their designated legisla
tive and executive powers.” Frew v. Hawkins, 540 U. S. 431, 441. Be
cause of these features of institutional reform litigation, federal courts
must take a “flexible approach” to Rule 60(b)(5) motions brought in this
context, Rufo, supra, at 381, ensuring that “responsibility for discharg
ing the State’s obligations is returned promptly to the State and its
officials” when circumstances warrant, Frew, supra, at 442. Courts
must remain attentive to the fact that “federal-court decrees exceed
appropriate limits if they are aimed at eliminating a condition that does
not violate [federal law] or . . . flow from such a violation.” Milliken v.
Bradley, 433 U. S. 267, 282. Thus, a critical question in this Rule
60(b)(5) inquiry is whether the EEOA violation underlying the 2000
order has been remedied. If it has, the order’s continued enforcement
is unnecessary and improper. Pp. 447–450.
(b) The Court of Appeals did not engage in the Rule 60(b)(5) analy
sis just described. Pp. 450–455.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
435 Cite as: 557 U. S. 433 (2009)
Syllabus
(i) Its Rule 60(b)(5) standard was too strict. The Court of Ap
peals explained that situations in which changed circumstances warrant
Rule 60(b)(5) relief are “likely rare,” and that, to succeed, petitioners
had to show that conditions in Nogales had so changed as to “sweep
away” the District Court’s incremental funding determination. The
Court of Appeals also incorrectly reasoned that federalism concerns
were substantially lessened here because the State and the state board
of education wanted the injunction to remain in place. Pp. 450–452.
(ii) The Court of Appeals’ inquiry was also too narrow, focusing
almost exclusively on the sufficiency of ELL incremental funding. It
attributed undue significance to petitioners’ failure to appeal the Dis
trict Court’s 2000 order and in doing so, failed to engage in the flexible
changed-circumstances inquiry prescribed by Rufo. The Court of Ap
peals’ inquiry was, effectively, an inquiry into whether the 2000 order
had been satisfied. But satisfaction of an earlier judgment is only one
of Rule 60(b)(5)’s enumerated bases for relief. Petitioners could obtain
relief on the independent basis that prospective enforcement of the
order was “no longer equitable.” To determine the merits of this claim,
the Court of Appeals should have ascertained whether the 2000 order’s
ongoing enforcement was supported by an ongoing EEOA violation.
Although the EEOA requires a State to take “appropriate action,” it
entrusts state and local authorities with choosing how to meet this obli
gation. By focusing solely on ELL incremental funding, the Court of
Appeals misapprehended this mandate. And by requiring petitioners
to demonstrate “appropriate action” through a particular funding mech
anism, it improperly substituted its own policy judgments for those of
the state and local officials entrusted with the decisions. Pp. 452–455.
(c) The District Court’s opinion reveals similar errors. Rather
than determining whether changed circumstances warranted relief from
the 2000 order, it asked only whether petitioners had satisfied that order
through increased ELL incremental funding. Pp. 455–456.
(d) Because the Court of Appeals and the District Court misper
ceived the obligation imposed by the EEOA and the breadth of the Rule
60(b)(5) inquiry, these cases must be remanded for a proper examination
of at least four factual and legal changes that may warrant relief.
Pp. 459–470.
(i) After the 2000 order was entered, Arizona moved from a “bi
lingual education” methodology of ELL instruction to “structured Eng
lish immersion” (SEI). Research on ELL instruction and findings by
the state department of education support the view that SEI is signifi
cantly more effective than bilingual education. A proper Rule 60(b)(5)
analysis should entail further factual findings regarding whether No

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
436 HORNE v. FLORES
Syllabus
gales’ implementation of SEI is a “changed circumstance” warranting
relief. Pp. 459–461.
(ii) Congress passed the No Child Left Behind Act of 2001
(NCLB), which represents another potentially significant “changed cir
cumstance.” Although compliance with NCLB will not necessarily con
stitute “appropriate action” under the EEOA, NCLB is relevant to
petitioners’ Rule 60(b)(5) motion in four principal ways: It prompted the
State to make significant structural and programming changes in its
ELL programming; it significantly increased federal funding for educa
tion in general and ELL programming in particular; it provided evi
dence of the progress and achievement of Nogales’ ELL students
through its assessment and reporting requirements; and it marked a
shift in federal education policy. Pp. 461–465.
(iii) Nogales’ superintendent instituted significant structural and
management reforms which, among other things, reduced class sizes,
improved student/teacher ratios, and improved the quality of teachers.
Entrenched in the incremental funding framework, the lower courts
failed to recognize that these changes may have brought Nogales’ ELL
programming into compliance with the EEOA even without sufficient
incremental funding to satisfy the 2000 order. This was error. Be
cause the EEOA focuses on the quality of educational programming and
services to students, not the amount of money spent, there is no statu
tory basis for precluding petitioners from showing that Nogales has
achieved EEOA-compliant ELL programming in ways other than
through increased incremental funding. A proper Rule 60(b)(5) inquiry
should recognize this and should ask whether, as a result of structural
and managerial improvements, Nogales is now providing equal educa
tional opportunities to ELL students. Pp. 465–468.
(iv) There was an overall increase in education funding available
in Nogales. The Court of Appeals foreclosed the possibility that peti
tioners could show that this overall increase was sufficient to support
EEOA-compliant ELL programming. This was clear legal error. The
EEOA’s “appropriate action” requirement does not necessarily require
a particular level of funding, and to the extent that funding is relevant,
the EEOA does not require that the money come from a particular
source. Thus, the District Court should evaluate whether the State’s
general education funding budget, in addition to local revenues, cur
rently supports EEOA-compliant ELL programming in Nogales.
Pp. 468–470.
3. On remand, if petitioners press their objection to the injunction as
it extends beyond Nogales, the lower courts should consider whether

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
437 Cite as: 557 U. S. 433 (2009)
Syllabus
the District Court erred in entering statewide relief. The record con
tains no factual findings or evidence that any school district other than
Nogales failed to provide equal educational opportunities to ELL stu
dents, and respondents have not explained how the EEOA can justify a
statewide injunction here. The state attorney general’s concern that a
“Nogales only” remedy would run afoul of the Arizona Constitution’s
equal funding requirement did not provide a valid basis for a statewide
federal injunction, for it raises a state-law question to be determined by
state authorities. Unless the District Court concludes that Arizona is
violating the EEOA statewide, it should vacate the injunction insofar
as it extends beyond Nogales. Pp. 470–472.
516 F. 3d 1140, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dis
senting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined,
post, p. 472.
Kenneth W. Starr argued the cause for petitioners in both
cases. With him on the briefs for petitioners in No. 08–294
were Ashley C. Parrish, Rick Richmond, Steven A. Haskins,
David J. Cantelme, David Aaron Brown, and Paul R. Neil.
Eric J. Bistrow, Daryl Manhart, and Michael S. Dulberg
filed briefs for petitioner in No. 08–289.
Sri Srinivasan argued the cause for respondents in both
cases. With him on the brief for respondents Miriam Flores
et al. were Irving L. Gornstein, Ryan W. Scott, Walter
Dellinger, Timothy M. Hogan, and Joy E. Herr-Cardillo.
Ter ry Goddard, Attorney General of Arizona, Mary
O’Grady, Solicitor General, Susan P. Segal, Assistant Attor
ney General, Robert H. McKirgan, Lawrence A. Kasten, and
Kimberly Anne Demarchi filed a brief for respondents State
of Arizona et al. in both cases.
Nicole A. Saharsky argued the cause for the United States
as amicus curiae supporting respondents in both cases.
With her on the brief were Acting Solicitor General Katyal,
Acting Assistant Attorneys General Hertz and King, Deputy
Solicitor General Kneedler, Mark B. Stern, Dennis J. Dim

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
438 HORNE v. FLORES
Opinion of the Court
sey, Angela M. Miller, Philip H. Rosenfelt, and Susan E.
Craig.†
Justice Alito delivered the opinion of the Court.
These consolidated cases arise from litigation that began
in Arizona in 1992 when a group of English language-learner
(ELL) students in the Nogales Unified School District (No
gales) and their parents filed a class action, alleging that the
State was violating the Equal Educational Opportunities Act
of 1974 (EEOA), § 204(f), 88 Stat. 515, 20 U. S. C. § 1703(f),
†Briefs of amici curiae urging reversal in both cases were filed for the
American Legislative Exchange Council et al. by Robert C. O’Brien, Jr.,
Jonathan E. Phillips, and Seth L. Cooper; for the American Unity Legal
Defense Fund et al. by Barnaby W. Zall; for Education-Policy Scholars by
Dan Himmelfarb and Stephen M. Shapiro; for the Eagle Forum Educa
tion & Legal Defense Fund, Inc., by Andrew L. Schlafly and Lawrence J.
Joseph; for the Pacific Legal Foundation et al. by Sharon L. Browne, Ste
ven Geoffrey Gieseler, and Michael J. Reitz; and for the Washington Legal
Foundation by Gene C. Schaerr, Michael J. Friedman, Daniel J. Popeo,
Richard A. Samp, Ross Sandler, and David S. Schoenbrod.
J. Scott Detamore filed a brief for the Mountain States Legal Foundation
as amicus curiae urging reversal in No. 08–289.
Briefs of amici curiae urging affirmance in both cases were filed for
the Asian American Justice Center et al. by Alan S. Gilbert, Richard M.
Zuckerman, Katherine J. Evans, Karen K. Narasaki, and Vincent A. Eng;
for the Asian American Legal Defense and Education Fund et al. by Rob
ert A. Long, Jr., Stanley Young, Deanna L. Kwong, and Kenneth Kimer
ling; for Civil Rights Organizations by Nina Perales, Diana Sen, and John
T. Affeldt; for Educational Policy and Finance Scholars by Jonathan L.
Marcus; for the NAACP Legal Defense & Educational Fund, Inc., et al.
by John Payton, Jacqueline A. Berrien, Debo P. Adegbile, Anurima
Bhargava, Holly A. Thomas, and Joshua Civin; for the National School
Boards Association et al. by Francisco M. Negro´ n, Jr., Naomi Gittins,
Thomas Hutton, Lisa Soronen, Maree F. Sneed, John W. Borkowski, and
Jessica Ellsworth; for the Tucson Unified School District et al. by John C.
Richardson; and for the Washington Lawyers’ Committee for Civil Rights
and Urban Affairs—Immigrant and Refugee Rights Project et al. by Pat
rick F. Linehan.
A. W. Phinney III filed a brief for 30 Recognized Leaders of Education
Research as amici curiae in both cases.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
439 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
which requires a State “to take appropriate action to over
come language barriers that impede equal participation by
its students in its instructional programs.” In 2000, the Dis
trict Court entered a declaratory judgment with respect to
Nogales, and in 2001, the court extended the order to apply
to the entire State. Over the next eight years, petitioners
repeatedly sought relief from the District Court’s orders, but
to no avail. We granted certiorari after the Court of Ap
peals for the Ninth Circuit affirmed the denial of petitioners’
motion for relief under Federal Rule of Civil Procedure
60(b)(5), and we now reverse the judgment of the Court of
Appeals and remand for further proceedings.
As we explain, the District Court and the Court of Ap
peals misunderstood both the obligation that the EEOA im
poses on States and the nature of the inquiry that is required
when parties such as petitioners seek relief under Rule
60(b)(5) on the ground that enforcement of a judgment is “no
longer equitable.” Both of the lower courts focused exces
sively on the narrow question of the adequacy of the State’s
incremental funding for ELL instruction instead of fairly
considering the broader question whether, as a result of im
portant changes during the intervening years, the State was
fulfilling its obligation under the EEOA by other means.
The question at issue in these cases is not whether Arizona
must take “appropriate action” to overcome the language
barriers that impede ELL students. Of course it must.
But petitioners argue that Arizona is now fulfilling its statu
tory obligation by new means that reflect new policy insights
and other changed circumstances. Rule 60(b)(5) provides
the vehicle for petitioners to bring such an argument.
I
A
In 1992, a group of students enrolled in the ELL program
in Nogales and their parents (plaintiffs) filed suit in the Dis
trict Court for the District of Arizona on behalf of “all minor

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
440 HORNE v. FLORES
Opinion of the Court
ity ‘at risk’ and limited English proficient children . . . now
or hereafter, enrolled in [the] Nogales Unified School District
. . . as well as their parents and guardians.” Flores v. Ari
zona, 172 F. Supp. 2d 1225, 1226 (2000). Plaintiffs sought a
declaratory judgment holding that the State of Arizona, its
board of education, and its superintendent of public instruc
tion (defendants) were violating the EEOA by providing in
adequate ELL instruction in Nogales.1
The relevant portion of the EEOA states:
“No State shall deny equal educational opportunity to
an individual on account of his or her race, color, sex, or
national origin, by—
. . . . .
“(f) the failure by an educational agency to take ap
propriate action to overcome language barriers that
impede equal participation by its students in its instruc
tional programs.” 20 U. S. C. § 1703 (emphasis added).
By simply requiring a State “to take appropriate action to
overcome language barriers” without specifying particular
actions that a State must take, “Congress intended to leave
state and local educational authorities a substantial amount
of latitude in choosing the programs and techniques they
1 We have previously held that Congress may validly abrogate the
States’ sovereign immunity only by doing so (1) unequivocally and
(2) pursuant to certain valid grants of constitutional authority. See, e. g.,
Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73 (2000). With respect to
the second requirement, we have held that statutes enacted pursuant to
§ 5 of the Fourteenth Amendment must provide a remedy that is “congru
ent and proportional” to the injury that Congress intended to address.
See City of Boerne v. Flores, 521 U. S. 507, 520 (1997). Prior to City of
Boerne, the Court of Appeals for the Ninth Circuit held that the EEOA,
which was enacted pursuant to § 5 of the Fourteenth Amendment, see 20
U. S. C. §§ 1702(a)(1), (b), validly abrogates the States’ sovereign immunity.
See Los Angeles Branch NAACP v. Los Angeles Unified School Dist.,
714 F. 2d 946, 950–951 (1983); see also Flores v. Arizona, 516 F. 3d 1140,
1146, n. 2 (CA9 2008) (relying on Los Angeles NAACP). That issue is
not before us in these cases.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
441 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
would use to meet their obligations under the EEOA.” Cas
taneda v. Pickard, 648 F. 2d 989, 1009 (CA5 1981).
In August 1999, after seven years of pretrial proceedings
and after settling various claims regarding the structure of
Nogales’ ELL curriculum, the evaluation and monitoring of
Nogales’ students, and the provision of tutoring and other
compensatory instruction, the parties proceeded to trial. In
January 2000, the District Court concluded that defendants
were violating the EEOA because the amount of funding the
State allocated for the special needs of ELL students (ELL
incremental funding) was arbitrary and not related to the
actual funding needed to cover the costs of ELL instruction
in Nogales. 172 F. Supp. 2d, at 1239. Defendants did not
appeal the District Court’s order.
B
In the years following, the District Court entered a series
of additional orders and injunctions. In October 2000, the
court ordered the State to “prepare a cost study to establish
the proper appropriation to effectively implement” ELL
programs. Flores v. Arizona, 160 F. Supp. 2d 1043, 1047.
In June 2001, the court applied the declaratory judgment
order statewide and granted injunctive relief accordingly.
No. CIV. 92–596TUCACM, 2001 WL 1028369, *2 (June 25,
2001). The court took this step even though the certified
class included only Nogales students and parents and even
though the court did not find that any districts other than
Nogales were in violation of the EEOA. The court set a
deadline of January 31, 2002, for the State to provide funding
that “bear[s] a rational relationship to the actual funding
needed.” Ibid.
In January 2005, the court gave the State 90 days to “ap
propriately and constitutionally fun[d] the state’s ELL pro
grams taking into account the [Rule’s] previous orders.”
No. CIV. 92–596–TUC–ACM, p. 5, App. 393. The State
failed to meet this deadline, and in December 2005, the court

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
442 HORNE v. FLORES
Opinion of the Court
held the State in contempt. Although the legislature was
not then a party to the suit, the court ordered that “the legis
lature has 15 calendar days after the beginning of the 2006
legislative session to comply with the January 28, 2005 Court
order. Everyday thereafter . . . that the State fails to com
ply with this Order, [fines] will be imposed until the State is
in compliance.” Flores v. Arizona, 405 F. Supp. 2d 1112,
1120. The schedule of fines that the court imposed escalated
from $500,000 to $2 million per day. Id., at 1120–1121.
C
Defendants did not appeal any of the District Court’s or
ders, and the record suggests that some state officials sup
ported their continued enforcement. In June 2001, the state
attorney general acquiesced in the statewide extension of
the declaratory judgment order, a step that the State has
explained by reference to the Arizona constitutional require
ment of uniform statewide school funding. See Brief for
Appellee State of Arizona et al. in No. 07–15603 etc. (CA9),
p. 60 (citing Ariz. Const., Art. 11, § 1(A)). At a hearing in
February 2006, a new attorney general opposed the superin
tendent’s request for a stay of the December 2005 order im
posing sanctions and fines, and filed a proposed distribution
of the accrued fines.
In March 2006, after accruing over $20 million in fines, the
state legislature passed HB 2064, which was designed
to implement a permanent funding solution to the prob
lems identified by the District Court in 2000. Among other
things, HB 2064 increased ELL incremental funding (with a
2-year per-student limit on such funding) and created two
new funds—a structured English immersion fund and a com
pensatory instruction fund—to cover additional costs of ELL
programming. Moneys in both newly created funds were to
be offset by available federal moneys. HB 2064 also insti
tuted several programming and structural changes.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
443 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
The Governor did not approve of HB 2064’s funding provi
sions, but she allowed the bill to become law without her
signature. Because HB 2064’s incremental ELL funding in
crease required court approval to become effective, the Gov
ernor requested the attorney general to move for accelerated
consideration by the District Court. In doing so, she ex
plained: “ ‘After nine months of meetings and three vetoes,
it is time to take this matter to a federal judge. I am con
vinced that getting this bill into court now is the most expe
ditious way ultimately to bring the state into compliance
with federal law.’ ” Flores v. Arizona, 516 F. 3d 1140, 1153,
n. 16 (CA9 2008). The state board of education joined the
Governor in opposing HB 2064. Together, the state board
of education, the State of Arizona, and the plaintiffs are re
spondents here.
With the principal defendants in the action siding with the
plaintiffs, the Speaker of the State House of Representatives
and the President of the State Senate (Legislators) filed a
motion to intervene as representatives of their respective
legislative bodies. App. 55. In support of their motion,
they stated that although the attorney general had a “legal
duty” to defend HB 2064, the attorney general had shown
“little enthusiasm” for advancing the legislature’s interests.
Id., at 57. Among other things, the Legislators noted that
the attorney general “failed to take an appeal of the judg
ment entered in this case in 2000 and has failed to appeal
any of the injunctions and other orders issued in aid of
the judgment.” Id., at 60. The District Court granted the
Legislators’ motion for permissive intervention, and the
Legislators and superintendent (together, petitioners here)
moved to purge the District Court’s contempt order in light
of HB 2064. Alternatively, they moved for relief under Fed
eral Rule of Civil Procedure 60(b)(5) based on changed
circumstances.
In April 2006, the District Court denied petitioners’ mo
tion, concluding that HB 2064 was fatally flawed in three

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
444 HORNE v. FLORES
Opinion of the Court
respects. First, while HB 2064 increased ELL incremental
funding by approximately $80 per student, the court held
that this increase was not rationally related to effective ELL
programming. Second, the court concluded that imposing a
2-year limit on funding for each ELL student was irrational.
Third, according to the court, HB 2064 violated federal law
by using federal funds to “supplant” rather than “supple
ment” state funds. No. CV–92–596–TUC–RCC, pp. 4–8
(Apr. 25, 2006), App. to Pet. for Cert. in No. 08–294, pp. 176a,
181a–182a. The court did not address petitioners’ Rule
60(b)(5) claim that changed circumstances rendered contin
ued enforcement of the original declaratory judgment order
inequitable. Petitioners appealed.
In an unpublished decision, the Court of Appeals for the
Ninth Circuit vacated the District Court’s April 2006 order,
the sanctions, and the imposition of fines, and remanded for
an evidentiary hearing to determine whether Rule 60(b)(5)
relief was warranted. Flores v. Rzeslawski, 204 Fed. Appx.
580 (2006).
On remand, the District Court denied petitioners’ Rule
60(b)(5) motion. Flores v. Arizona, 480 F. Supp. 2d 1157,
1167 (Ariz. 2007). Holding that HB 2064 did not establish
“a funding system that rationally relates funding available to
the actual costs of all elements of ELL instruction,” id., at
1165, the court gave the State until the end of the legislative
session to comply with its orders. The State failed to do
so, and the District Court again held the State in contempt.
No. CV 92–596 TUC–RCC (Oct. 10, 2007), App. 86. Peti
tioners appealed.
The Court of Appeals affirmed. 516 F. 3d 1140. It ac
knowledged that Nogales had “made significant strides since
2000,” id., at 1156, but concluded that the progress did
not warrant Rule 60(b)(5) relief. Emphasizing that Rule
60(b)(5) is not a substitute for a timely appeal, and character
izing the original declaratory judgment order as centering
on the adequacy of ELL incremental funding, the Court of

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
445 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
Appeals explained that relief would be appropriate only if
petitioners had shown “either that there are no longer incre
mental costs associated with ELL programs in Arizona” or
that Arizona had altered its funding model. Id., at 1169.
The Court of Appeals concluded that petitioners had made
neither showing, and it rejected petitioners’ other argu
ments, including the claim that Congress’ enactment of the
No Child Left Behind Act of 2001 (NCLB), 115 Stat. 1425,
codified in Title 20 U. S. C. § 6842, constituted a changed legal
circumstance that warranted Rule 60(b)(5) relief.
We granted certiorari, 555 U. S. 1092 (2009), and now
reverse.
II
Before addressing the merits of petitioners’ Rule 60(b)(5)
motion, we consider the threshold issue of standing—“an es
sential and unchanging part of the case-or-controversy re
quirement of Article III.” Lujan v. Defenders of Wildlife,
504 U. S. 555, 560 (1992). To establish standing, a plaintiff
must present an injury that is concrete, particularized, and
actual or imminent; fairly traceable to the defendant’s chal
lenged action; and redressable by a favorable ruling. Id.,
at 560–561. Here, as in all standing inquiries, the critical
question is whether at least one petitioner has “alleged such
a personal stake in the outcome of the controversy as to war
rant his invocation of federal-court jurisdiction.” Summers
v. Earth Island Institute, 555 U. S. 488, 493 (2009) (quoting
Warth v. Seldin, 422 U. S. 490, 498 (1975); internal quotation
marks omitted).
We agree with the Court of Appeals that the superintend
ent has standing because he “is a named defendant in the
case[,] the Declaratory Judgment held him to be in violation
of the EEOA, and the current injunction runs against him.”
516 F. 3d, at 1164 (citation omitted). For these reasons
alone, he has alleged a sufficiently “ ‘personal stake in the
outcome of the controversy’ ” to support standing. Warth,
supra, at 498; see also United States v. Sweeney, 914 F. 2d

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
446 HORNE v. FLORES
Opinion of the Court
1260, 1263 (CA9 1990) (rejecting as “frivolous” the argu
ment that a party does not have “standing to object to or
ders specifically directing it to take or refrain from taking
action”).
Respondents’ only argument to the contrary is that the
superintendent answers to the state board of education,
which in turn answers to the Governor, and that the Gover
nor is the only Arizona official who “could have resolved the
conflict within the Executive Branch by directing an appeal.”
Brief for Respondent Flores et al. 22. We need not consider
whether respondents’ chain-of-command argument has merit
because the Governor has, in fact, directed an appeal. See
App. to Reply Brief for Petitioner Superintendent 1 (“I
hereby direct [the state attorney general] to file a brief
at the [Supreme] Court on behalf of the State of Arizona
adopting and joining in the positions taken by the Superin
tendent of Public Instruction, the Speaker of the Arizona
House of Representatives, and the President of the Arizona
Senate”).
Because the superintendent clearly has standing to chal
lenge the lower courts’ decisions, we need not consider
whether the Legislators also have standing to do so.2 See,
e. g., Arlington Heights v. Metropolitan Housing Devel
opment Corp., 429 U. S. 252, 264, and n. 9 (1977) (“[W]e have
at least one individual plaintiff who has demonstrated stand
ing . . . . Because of the presence of this plaintiff, we need
not consider whether the other individual and corporate
2 We do not agree with the conclusion of the Court of Appeals that “the
Superintendent’s standing is limited” to seeking vacatur of the District
Court’s orders “only as they run against him.” 516 F. 3d, at 1165. Had
the superintendent sought relief based on satisfaction of the judgment,
the Court of Appeals’ conclusion might have been correct. But as dis
cussed infra, at 453, petitioners’ Rule 60(b)(5) claim is not based on satis
faction of the judgment. Their claim is that continued enforcement of
the District Court’s orders would be inequitable. This claim implicates
the orders in their entirety, and not solely as they run against the
superintendent.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
447 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
plaintiffs have standing to maintain the suit”). Accordingly,
we proceed to the merits of petitioners’ Rule 60(b)(5) motion.
III
A
Federal Rule of Civil Procedure 60(b)(5) permits a party
to obtain relief from a judgment or order if, among other
things, “applying [the judgment or order] prospectively is no
longer equitable.” Rule 60(b)(5) may not be used to chal
lenge the legal conclusions on which a prior judgment or
order rests, but the Rule provides a means by which a party
can ask a court to modify or vacate a judgment or order if
“a significant change either in factual conditions or in law”
renders continued enforcement “detrimental to the public in
terest.” Rufo v. Inmates of Suffolk County Jail, 502 U. S.
367, 384 (1992). The party seeking relief bears the burden
of establishing that changed circumstances warrant relief,
id., at 383, but once a party carries this burden, a court
abuses its discretion “when it refuses to modify an injunction
or consent decree in light of such changes,” Agostini v. Fel
ton, 521 U. S. 203, 215 (1997).
Rule 60(b)(5) serves a particularly important function in
what we have termed “institutional reform litigation.” 3
Rufo, supra, at 380. For one thing, injunctions issued in
3 The dissent is quite wrong in contending that these are not institu
tional reform cases because they involve a statutory, rather than a consti
tutional, claim and because the orders of the District Court do not micro
manage the day-to-day operation of the schools. Post, at 496 (opinion of
Breyer, J.). For nearly a decade, the orders of a Federal District Court
have substantially restricted the ability of the State of Arizona to make
basic decisions regarding educational policy, appropriations, and budget
priorities. The record strongly suggests that some state officials have
welcomed the involvement of the federal court as a means of achieving
appropriations objectives that could not be achieved through the ordinary
democratic process. See supra, at 443. Because of these features, these
cases implicate all of the unique features and risks of institutional reform
litigation.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
448 HORNE v. FLORES
Opinion of the Court
such cases often remain in force for many years, and the
passage of time frequently brings about changed circum
stances—changes in the nature of the underlying problem,
changes in governing law or its interpretation by the courts,
and new policy insights—that warrant reexamination of the
original judgment.
Second, institutional reform injunctions often raise sensi
tive federalism concerns. Such litigation commonly involves
areas of core state responsibility, such as public education.
See Missouri v. Jenkins, 515 U. S. 70, 99 (1995) (“[O]ur cases
recognize that local autonomy of school districts is a vital
national tradition, and that a district court must strive to
restore state and local authorities to the control of a school
system operating in compliance with the Constitution” (cita
tion omitted)); United States v. Lopez, 514 U. S. 549, 580
(1995) (Kennedy, J., concurring).
Federalism concerns are heightened when, as in these
cases, a federal-court decree has the effect of dictating state
or local budget priorities. States and local governments
have limited funds. When a federal court orders that
money be appropriated for one program, the effect is often
to take funds away from other important programs. See
Jenkins, supra, at 131 (Thomas, J., concurring) (“A struc
tural reform decree eviscerates a State’s discretionary au
thority over its own program and budgets and forces state
officials to reallocate state resources and funds”).
Finally, the dynamics of institutional reform litigation dif
fer from those of other cases. Scholars have noted that pub
lic officials sometimes consent to, or refrain from vigorously
opposing, decrees that go well beyond what is required by
federal law. See, e. g., McConnell, Why Hold Elections?
Using Consent Decrees To Insulate Policies From Political
Change, 1987 U. Chi. Legal Forum 295, 317 (noting that gov
ernment officials may try to use consent decrees to “block
ordinary avenues of political change” or to “sidestep political
constraints”); Horowitz, Decreeing Organizational Change:

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
449 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
Judicial Supervision of Public Institutions, 1983 Duke L. J.
1265, 1294–1295 (“Nominal defendants [in institutional re
form cases] are sometimes happy to be sued and happier still
to lose”); R. Sandler & D. Schoenbrod, Democracy by Decree:
What Happens When Courts Run Government 170 (2003)
(“Government officials, who always operate under fiscal and
political constraints, ‘frequently win by losing’ ” in institu
tional reform litigation).
Injunctions of this sort bind state and local officials to the
policy preferences of their predecessors and may thereby
“improperly deprive future officials of their designated legis
lative and executive powers.” Frew v. Hawkins, 540 U. S.
431, 441 (2004). See also Northwest Environment Advo
cates v. EPA, 340 F. 3d 853, 855 (CA9 2003) (Kleinfeld, J.,
dissenting) (noting that consent decrees present a risk of col
lusion between advocacy groups and executive officials who
want to bind the hands of future policymakers); Ragsdale
v. Turnock, 941 F. 2d 501, 517 (CA7 1991) (Flaum, J., concur
ring in part and dissenting in part) (“[I]t is not uncommon
for consent decrees to be entered into on terms favorable
to those challenging governmental action because of rifts
within the bureaucracy or between the executive and leg
islative branches”); Easterbrook, Justice and Contract in
Consent Judgments, 1987 U. Chi. Legal Forum 19, 40 (“To
morrow’s officeholder may conclude that today’s is wrong,
and there is no reason why embedding the regulation in a
consent decree should immunize it from reexamination”).
States and localities “depen[d] upon successor officials,
both appointed and elected, to bring new insights and solu
tions to problems of allocating revenues and resources.”
Frew, supra, at 442. Where “state and local officials . . .
inherit overbroad or outdated consent decrees that limit
their ability [to] respond to the priorities and concerns of
their constituents,” they are constrained in their ability to
fulfill their duties as democratically elected officials. Ameri
can Legislative Exchange Council, Resolution on the Federal

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
450 HORNE v. FLORES
Opinion of the Court
Consent Decree Fairness Act (2006), App. to Brief for Ameri
can Legislative Exchange Council et al. as Amici Curiae
1a–4a.
It goes without saying that federal courts must vigilantly
enforce federal law and must not hesitate in awarding neces
sary relief. But in recognition of the features of institu
tional reform decrees, we have held that courts must take a
“flexible approach” to Rule 60(b)(5) motions addressing such
decrees. Rufo, 502 U. S., at 381. A flexible approach allows
courts to ensure that “responsibility for discharging the
State’s obligations is returned promptly to the State and its
officials” when the circumstances warrant. Frew, supra, at
442. In applying this flexible approach, courts must remain
attentive to the fact that “federal-court decrees exceed ap
propriate limits if they are aimed at eliminating a condition
that does not violate [federal law] or does not flow from such
a violation.” Milliken v. Bradley, 433 U. S. 267, 282 (1977).
“If [a federal consent decree is] not limited to reasonable and
necessary implementations of federal law,” it may “improp
erly deprive future officials of their designated legislative
and executive powers.” Frew, 540 U. S., at 441.
For these reasons, a critical question in this Rule 60(b)(5)
inquiry is whether the objective of the District Court’s 2000
declaratory judgment order—i. e., satisfaction of the EEOA’s
“appropriate action” standard—has been achieved. See id.,
at 442. If a durable remedy has been implemented, con
tinued enforcement of the order is not only unnecessary,
but improper. See Milliken, supra, at 282. We note that
the EEOA itself limits court-ordered remedies to those that
“are essential to correct particular denials of equal edu
cational opportunity or equal protection of the laws.” 20
U. S. C. § 1712 (emphasis added).
B
The Court of Appeals did not engage in the Rule 60(b)(5)
analysis just described. Rather than applying a flexible

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
451 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
standard that seeks to return control to state and local offi
cials as soon as a violation of federal law has been remedied,
the Court of Appeals used a heightened standard that paid
insufficient attention to federalism concerns. And rather
than inquiring broadly into whether changed conditions in
Nogales provided evidence of an ELL program that complied
with the EEOA, the Court of Appeals concerned itself only
with determining whether increased ELL funding complied
with the original declaratory judgment order. The court
erred on both counts.
1
The Court of Appeals began its Rule 60(b)(5) discussion by
citing the correct legal standard, see 516 F. 3d, at 1163 (not
ing that relief is appropriate upon a showing of “ ‘a sig
nificant change either in factual conditions or in law’ ”), but
it quickly strayed. It referred to the situations in which
changed circumstances warrant Rule 60(b)(5) relief as “likely
rare,” id., at 1167, and explained that, to succeed on these
grounds, petitioners would have to make a showing that con
ditions in Nogales had so changed as to “sweep away” the
District Court’s incremental funding determination, id., at
1168. The Court of Appeals concluded that the District
Court had not erred in determining that “the landscape was
not so radically changed as to justify relief from judgment
without compliance.” Id., at 1172 (emphasis added).4
Moreover, after recognizing that review of the denial of
Rule 60(b)(5) relief should generally be “somewhat closer in
the context of institutional injunctions against states ‘due
to federalism concerns,’ ” the Court of Appeals incorrectly
4 The dissent conveniently dismisses the Court of Appeals’ statements
by characterizing any error that exists as “one of tone, not of law,” and by
characterizing our discussion as reading them out of context. Post, at
510–511. But we do read these statements in context—in the context
of the Court of Appeals’ overall treatment of petitioners’ Rule 60(b)(5)
arguments—and it is apparent that they accurately reflect the Court of
Appeals’ excessively narrow understanding of the role of Rule 60(b)(5).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
452 HORNE v. FLORES
Opinion of the Court
reasoned that “federalism concerns are substantially les
sened here, as the state of Arizona and the state Board of
Education wish the injunction to remain in place.” Id., at
1164. This statement is flatly incorrect, as even respond
ents acknowledge. Brief for Respondent State of Arizona
et al. 20–21. Precisely because different state actors have
taken contrary positions in this litigation, federalism con
cerns are elevated. And precisely because federalism con
cerns are heightened, a flexible approach to Rule 60(b)(5)
relief is critical. “[W]hen the objects of the decree have
been attained”—namely, when EEOA compliance has been
achieved—“responsibility for discharging the State’s obliga
tions [must be] returned promptly to the State and its offi
cials.” Frew, supra, at 442.
2
In addition to applying a Rule 60(b)(5) standard that was
too strict, the Court of Appeals framed a Rule 60(b)(5) in
quiry that was too narrow—one that focused almost exclu
sively on the sufficiency of incremental funding. In large
part, this was driven by the significance the Court of Ap
peals attributed to petitioners’ failure to appeal the District
Court’s original order. The Court of Appeals explained that
“the central idea” of that order was that without sufficient
ELL incremental funds, “ELL programs would necessarily
be inadequate.” 516 F. 3d, at 1167–1168. It felt bound by
this conclusion, lest it allow petitioners to “reopen matters
made final when the Declaratory Judgment was not ap
pealed.” Id., at 1170. It repeated this refrain throughout
its opinion, emphasizing that the “ ‘interest in finality must
be given great weight,’ ” id., at 1163, and explaining that
petitioners could not now ask for relief “on grounds that
could have been raised on appeal from the Declaratory Judg
ment and from earlier injunctive orders but were not,” id.,
at 1167. “If [petitioners] believed that the district court
erred and should have looked at all funding sources differ

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
453 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
ently in its EEOA inquiry,” the court wrote, “they should
have appealed the Declaratory Judgment.” Id., at 1171.
In attributing such significance to the defendants’ failure
to appeal the District Court’s original order, the Court of
Appeals turned the risks of institutional reform litigation
into reality. By confining the scope of its analysis to that of
the original order, it insulated the policies embedded in the
order—specifically, its incremental funding requirement—
from challenge and amendment.5 But those policies were
supported by the very officials who could have appealed
them—the state defendants—and, as a result, were never
subject to true challenge.
Instead of focusing on the failure to appeal, the Court of
Appeals should have conducted the type of Rule 60(b)(5) in
quiry prescribed in Rufo. This inquiry makes no reference
to the presence or absence of a timely appeal. It takes
the original judgment as a given and asks only whether
“a significant change either in factual conditions or in law”
renders continued enforcement of the judgment “detrimental
to the public interest.” Rufo, 502 U. S., at 384. It allows a
court to recognize that the longer an injunction or consent
decree stays in place, the greater the risk that it will improp
erly interfere with a State’s democratic processes.
The Court of Appeals purported to engage in a “changed
circumstances” inquiry, but it asked only whether changed
circumstances affected ELL funding and, more specifically,
ELL incremental funding. Relief was appropriate, in the
court’s view, only if petitioners “demonstrate[d] either that
5 This does not mean, as the dissent misleadingly suggests, see post, at
492–493, that we are faulting the Court of Appeals for declining to decide
whether the District Court’s original order was correct in the first place.
On the contrary, as we state explicitly in the paragraph following this
statement, our criticism is that the Court of Appeals did not engage in the
changed-circumstances inquiry prescribed by Rufo v. Inmates of Suffolk
County Jail, 502 U. S. 367 (1992). By focusing excessively on the issue of
incremental funding, the Court of Appeals was not true to the Rufo
standard.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
454 HORNE v. FLORES
Opinion of the Court
there [we]re no longer incremental costs associated with
ELL programs in Arizona or that Arizona’s ‘base plus incre
mental costs’ educational funding model was so altered that
focusing on ELL-specific incremental costs funding has be
come irrelevant and inequitable.” 516 F. 3d, at 1169.
This was a Rule 60(b)(5) “changed circumstances” inquiry
in name only. In reality, it was an inquiry into whether the
deficiency in ELL incremental funding that the District
Court identified in 2000 had been remedied. And this, effec
tively, was an inquiry into whether the original order had
been satisfied. Satisfaction of an earlier judgment is one of
the enumerated bases for Rule 60(b)(5) relief—but it is not
the only basis for such relief.
Rule 60(b)(5) permits relief from a judgment where “[i]
the judgment has been satisfied, released or discharged; [ii]
it is based on an earlier judgment that has been reversed or
vacated; or [iii] applying it prospectively is no longer equi
table.” (Emphasis added.) Use of the disjunctive “or”
makes it clear that each of the provision’s three grounds for
relief is independently sufficient and therefore that relief
may be warranted even if petitioners have not “satisfied” the
original order. As petitioners argue, they may obtain re
lief if prospective enforcement of that order “is no longer
equitable.”
To determine the merits of this claim, the Court of Ap
peals needed to ascertain whether ongoing enforcement of
the original order was supported by an ongoing violation of
federal law (here, the EEOA). See Milliken, 433 U. S., at
282. It failed to do so.
As previously noted, the EEOA, while requiring a State
to take “appropriate action to overcome language barriers,”
20 U. S. C. § 1703(f), “leave[s] state and local educational au
thorities a substantial amount of latitude in choosing” how
this obligation is met. Castaneda, 648 F. 2d, at 1009. Of
course, any educational program, including the “appropriate
action” mandated by the EEOA, requires funding, but fund

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
Cite as: 557 U. S. 433 (2009) 455
Opinion of the Court
ing is simply a means, not the end. By focusing so inten
sively on Arizona’s incremental ELL funding, the Court of
Appeals misapprehended the EEOA’s mandate. And by
requiring petitioners to demonstrate “appropriate action”
through a particular funding mechanism, the Court of Ap
peals improperly substituted its own educational and bud
getary policy judgments for those of the state and local
officials to whom such decisions are properly entrusted. Cf.
Jenkins, 515 U. S., at 131 (Thomas, J., concurring) (“Federal
courts do not possess the capabilities of state and local gov
ernments in addressing difficult educational problems”).
C
The underlying District Court opinion reveals similar er
rors. In an August 2006 remand order, a different Ninth
Circuit panel had instructed the District Court to hold an
evidentiary hearing “regarding whether changed circum
stances required modification of the original court order or
otherwise had a bearing on the appropriate remedy.” 204
Fed. Appx., at 582. The Ninth Circuit panel observed that
“federal courts must be sensitive to the need for modification
[of permanent injunctive relief] when circumstances change.”
Ibid. (internal quotation marks omitted).
The District Court failed to follow these instructions. In
stead of determining whether changed circumstances war
ranted modification of the original order, the District Court
asked only whether petitioners had satisfied the original de
claratory judgment order through increased incremental
funding. See 480 F. Supp. 2d, at 1165 (explaining that a
showing of “mere amelioration” of the specific deficiencies
noted in the District Court’s original order was “inadequate”
and that “compliance would require a funding system that
rationally relates funding available to the actual costs of all
elements of ELL instruction” (emphasis added)). The Dis
trict Court stated: “It should be noted that the Court finds
the same problems today that it saw last year, because HB

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
456 HORNE v. FLORES
Opinion of the Court
2064 is the same, the problems themselves are the same.”6
Id., at 1161. The District Court thus rested its postremand
decision on its preremand analysis of HB 2064. It disre
garded the remand instructions to engage in a broad and
flexible Rule 60(b)(5) analysis as to whether changed circum
stances warranted relief. In taking this approach, the Dis
trict Court abused its discretion.
D
The dissent defends the narrow approach of the lower
courts with four principal conclusions that it draws from the
record. All of these conclusions, however, are incorrect and
mirror the fundamental error of the lower courts—a fixation
on the issue of incremental funding and a failure to recognize
the proper scope of a Rule 60(b)(5) inquiry.
First, the dissent concludes that “ the Rule 60(b)(5)
‘changes’ upon which the District Court focused” were not
6 In addition to concluding that the law’s increase in incremental fund
ing was insufficient and that 2-year cutoff was irrational, both the District
Court and the Court of Appeals held that HB 2064’s funding mecha
nism violates NCLB, which provides in relevant part: “A State shall not
take into consideration payments under this chapter . . . in determining
the eligibility of any local educational agency in that State for State aid,
or the amount of State aid, with respect to free public education of chil
dren.” 20 U. S. C. § 7902. See 480 F. Supp. 2d, at 1166 (HB 2064’s fund
ing mechanism is “absolutely forbidden” by § 7902); 516 F. 3d, at 1178 (“HB
2064 . . . violates [§ 7902] on its face”). Whether or not HB 2064 violates
§ 7902, see Brief for United States as Amicus Curiae 31–32, and n. 8 (sug
gesting it does), neither court below was empowered to decide the issue.
As the Court of Appeals itself recognized, NCLB does not provide a pri
vate right of action. See 516 F. 3d, at 1175. “Without [statutory intent],
a cause of action does not exist and courts may not create one, no matter
how desirable that might be as a policy matter, or how compatible with
the statute.” Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001).
Thus, NCLB is enforceable only by the agency charged with administering
it. See id., at 289–290; see also App. to Brief for Respondent State of
Arizona et al. 1–4 (letter from U. S. Department of Education to petitioner
superintendent concerning the legality vel non of HB 2064).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
457 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
limited to changes in funding, and included “ ‘changed teach
ing methods’ ” and “ ‘changed administrative systems.’ ”
Post, at 483. The District Court did note a range of changed
circumstances, concluding that as a result of these changes,
Nogales was “doing substantially better.” 480 F. Supp. 2d,
at 1160. But it neither focused on these changes nor made
up-to-date factual findings. To the contrary, the District
Court explained that “it would be premature to make an as
sessment of some of these changes.” Ibid. Accordingly, of
the 28 findings of fact that the court proceeded to make, the
first 20 addressed funding directly and exclusively. See id.,
at 1161–1163. The last eight addressed funding indirectly—
discussing reclassification rates because of their relevance to
HB 2064’s funding restrictions for ELL and reclassified stu
dents. See id., at 1163–1165. None of the District Court’s
findings of fact addressed either “ ‘changed teaching meth
ods’ ” or “ ‘changed administrative systems.’ ”
The dissent’s second conclusion is that “ ‘incremental fund
ing’ costs . . . [were] the basic contested issue at the 2000
trial and the sole basis for the District Court’s finding of a
statutory violation.” Post, at 483. We fail to see this con
clusion’s relevance to this Rule 60(b)(5) motion, where the
question is whether any change in factual or legal circum
stances renders continued enforcement of the original order
inequitable. As the dissent itself acknowledges, petitioners
“pointed to three sets of changed circumstances [in their
Rule 60(b)(5) motion] which, in their view, showed that the
judgment and the related orders were no longer necessary.”
Post, at 482. In addition to “increases in the amount of
funding available to Arizona school districts,” these included
“changes in the method of English-learning instruction,” and
“changes in the administration of the Nogales school dis
trict.” Ibid.
Third, the dissent concludes that “the type of issue upon
which the District Court and Court of Appeals focused”—the
incremental funding issue—“lies at the heart of the statutory

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
458 HORNE v. FLORES
Opinion of the Court
demand for equal educational opportunity.” Post, at 484.
In what we interpret to be a restatement of this point, the
dissent also concludes that sufficient funding (“the ‘resource’
issue”) and the presence or absence of an EEOA violation
(“ the statutory subsection ( f) issue”) “are one and the
same.” Post, at 485 (emphasis in original). “In focusing
upon the one,” the dissent asserts, “the District Court and
Court of Appeals were focusing upon the other.” Ibid.
Contrary to the dissent’s assertion, these two issues are
decidedly not “one and the same.” 7 Ibid. Nor is it the
case, as the dissent suggests, that the EEOA targets States’
provision of resources for ELL programming.8 Post, at 484.
7 The extent to which the dissent repeats the errors of the courts below
is evident in its statement that “[t]he question here is whether the State
has shown that its new funding program amounts to a ‘change’ that satis
fies subsection (f)’s requirement.” Post, at 510 (emphasis added). The
proper inquiry is not limited to the issue of funding. Rather, it encom
passes the question whether the State has shown any factual or legal
changes that establish compliance with the EEOA.
8 The dissent cites two sources for this proposition. The first—Cas
taneda v. Pickard, 648 F. 2d 989 (CA5 1981)—sets out a three-part test
for “appropriate action.” Under that test, a State must (1) formulate a
sound English language instruction educational plan, (2) implement that
plan, and (3) achieve adequate results. See id., at 1009–1010. Whether
or not this test provides much concrete guidance regarding the meaning
of “appropriate action,” the test does not focus on incremental funding or
on the provision of resources more generally.
The second source cited by the dissent—curiously—is a speech given by
President Nixon in which he urged prompt action by Congress on legisla
tion imposing a moratorium on new busing orders and on the Equal Educa
tional Opportunities Act of 1972. See post, at 484 (citing Address to the
Nation on Equal Educational Opportunity and Busing, 8 Weekly Comp. of
Pres. Doc. 590, 591 (1972)). In the speech, President Nixon said that
schools in poor neighborhoods should receive the “financial support . . .
that we know can make all the difference.” Id., at 593. It is likely that
this statement had nothing to do with the interpretation of the EEOA’s
“appropriate action” requirement and instead referred to his proposal to
“direc[t] over $21⁄ 2 billion in the next year mainly towards improving the
education of children from poor families.” Id., at 591. But in any event,
this general statement, made in a Presidential speech two years prior

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
459 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
What the statute forbids is a failure to take “appropriate
action to overcome language barriers.” 20 U. S. C. § 1703(f).
Funding is merely one tool that may be employed to achieve
the statutory objective.
Fourth, the dissent concludes that the District Court did
not order increased ELL incremental funding and did not
dictate state and local budget priorities. Post, at 486. The
dissent’s point—and it is a very small one—is that the Dis
trict Court did not set a specific amount that the legislature
was required to appropriate. The District Court did, how
ever, hold the State in contempt and impose heavy fines be
cause the legislature did not provide sufficient funding.
These orders unquestionably imposed important restrictions
on the legislature’s ability to set budget priorities.
E
Because the lower courts—like the dissent—misperceived
both the nature of the obligation imposed by the EEOA and
the breadth of the inquiry called for under Rule 60(b)(5),
these cases must be remanded for a proper examination of
at least four important factual and legal changes that may
warrant the granting of relief from the judgment: the State’s
adoption of a new ELL instructional methodology, Congress’
enactment of NCLB, structural and management reforms in
Nogales, and increased overall education funding.
1
At the time of the District Court’s original declaratory
judgment order, ELL instruction in Nogales was based pri
marily on “bilingual education,” which teaches core content
areas in a student’s native language while providing English
instruction in separate language classes. In November
2000, Arizona voters passed Proposition 203, which man
to the enactment of the EEOA, surely sheds little light on the proper
interpretation of the statute.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
460 HORNE v. FLORES
Opinion of the Court
dated statewide implementation of a “structured English im
mersion” (SEI) approach. See App. to Pet. for Cert. in
No. 08–294, at 369a. Proposition 203 defines this methodol
ogy as follows:
“ ‘Sheltered English immersion’ or ‘structured English
immersion’ means an English language acquisition proc
ess for young children in which nearly all classroom in
struction is in English but with the curriculum and
presentation designed for children who are learning the
language. . . . Although teachers may use a minimal
amount of the child’s native language when necessary,
no subject matter shall be taught in any language other
than English, and children in this program learn to read
and write solely in English.” Ariz. Rev. Stat. Ann.
§ 15–751(5) (West 2009).
In HB 2064, the state legislature attended to the success
ful and uniform implementation of SEI in a variety of ways.9
It created an “Arizona English language learners task force”
within the state department of education to “develop and
adopt research based models of structured English immer
sion programs for use by school districts and charter
schools.” § 15–756.01(C). It required that all school dis
tricts and charter schools select one of the adopted SEI
models, § 15–756.02(A), and it created an “Office of English
language acquisition services” to aid school districts in
implementation of the models, § 15–756.07(1). It also re
quired the state board of education to institute a uniform
and mandatory training program for all SEI instructors.
§ 15–756.09.
Research on ELL instruction indicates there is docu
mented, academic support for the view that SEI is signifi
9 By focusing on the adequacy of HB 2064’s funding provisions, the
courts below neglected to address adequately the potential relevance of
these programming provisions, which became effective immediately upon
enactment of the law.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
461 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
cantly more effective than bilingual education.10 Findings
of the Arizona State Department of Education in 2004
strongly support this conclusion.11 In light of this, a proper
analysis of petitioners’ Rule 60(b)(5) motion should include
further factual findings regarding whether Nogales’ imple
mentation of SEI methodology—completed in all of its
schools by 2005—constitutes a “significantly changed circum
stance” that warrants relief.
2
Congress’ enactment of NCLB represents another poten
tially significant “changed circumstance.” NCLB marked a
dramatic shift in federal education policy. It reflects Con
gress’ judgment that the best way to raise the level of edu
cation nationwide is by granting state and local officials
flexibility to develop and implement educational programs
that address local needs, while holding them accountable for
the results. NCLB implements this approach by requiring
States receiving federal funds to define performance stand
ards and to make regular assessments of progress toward
the attainment of those standards. 20 U. S. C. § 6311(b)(2).
NCLB conditions the continued receipt of funds on demon
strations of “adequate yearly progress.” Ibid.
10 See Brief for American Unity Legal Defense Fund et al. as Amici
Curiae 10–12 (citing sources, including New York City Board of Education,
Educational Progress of Students in Bilingual and ESL Programs: a Lon
gitudinal Study, 1990–1994 (1994); 2 K. Torrance, Immersion Not Sub
mersion: Lessons From Three California Districts’ Switch From Bilingual
Education to Structured Immersion 4 (2006)).
11 See Ariz. Dept. of Ed., The Effects of Bilingual Education Programs
and Structured English Immersion Programs on Student Achievement: A
Large-Scale Comparison 3 (Draft July 2004) (“In the general statewide
comparison of bilingual and SEI programs [in 2002–2003], those students
in SEI programs significantly outperformed bilingual students in 24 out
of 24 comparisons . . . . Though students in SEI and bilingual programs
are no more than three months apart in the primary grades, bilingual
students are more than a year behind their SEI counterparts in seventh
and eighth grade”).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
462 HORNE v. FLORES
Opinion of the Court
As relevant here, Title III (which includes the English
Language Acquisition, Language Enhancement, and Aca
demic Achievement Act) requires States to ensure that ELL
students “attain English proficiency, develop high levels of
academic attainment in English, and meet the same challeng
ing State academic content and student academic achieve
ment standards as all children are expected to meet.”
§ 6812(1). It requires States to set annual objective achieve
ment goals for the number of students who will annually
progress toward proficiency, achieve proficiency, and make
“adequate yearly progress” with respect to academic
achievement, § 6842(a), and it holds local schools and agencies
accountable for meeting these objectives, § 6842(b).
Petitioners argue that through compliance with NCLB,
the State has established compliance with the EEOA. They
note that when a State adopts a compliance plan under
NCLB—as the State of Arizona has—it must provide ade
quate assurances that ELL students will receive assistance
“to achieve at high levels in the core academic subjects so
that those children can meet the same . . . standards as all
children are expected to meet.” § 6812(2). They argue that
when the Federal Department of Education approves a
State’s plan—as it has with respect to Arizona’s—it offers
definitive evidence that the State has taken “appropriate ac
tion to overcome language barriers” within the meaning of
the EEOA. § 1703(f).
The Court of Appeals concluded, and we agree, that be
cause of significant differences in the two statutory schemes,
compliance with NCLB will not necessarily constitute “ap
propriate action” under the EEOA. 516 F. 3d, at 1172–1176.
Approval of an NCLB plan does not entail substantive review
of a State’s ELL programming or a determination that the
programming results in equal educational opportunity for
ELL students. See § 6823. Moreover, NCLB contains a
saving clause, which provides that “[n]othing in this part
shall be construed in a manner inconsistent with any Federal
law guaranteeing a civil right.” § 6847.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
463 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
This does not mean, however, that NCLB is not relevant
to petitioners’ Rule 60(b)(5) motion. To the contrary, we
think it is probative in four principal ways.12 First, it
prompted the State to institute significant structural and
programming changes in its delivery of ELL education,13
leading the Court of Appeals to observe that “Arizona has
significantly improved its ELL infrastructure.” 516 F. 3d,
at 1154. These changes should not be discounted in the
Rule 60(b)(5) analysis solely because they do not require or
result from increased funding. Second, NCLB significantly
increased federal funding for education in general and ELL
programming in particular.14 These funds should not be dis
regarded just because they are not state funds. Third,
through its assessment and reporting requirements, NCLB
12 Although the dissent contends that the sole argument raised below
regarding NCLB was that compliance with that Act necessarily consti
tuted compliance with the EEOA, the Court of Appeals recognized that
NCLB is a relevant factor that should be considered under Rule 60(b)(5).
It acknowledged that compliance with NCLB is at least “somewhat pro
bative” of compliance with the EEOA. 516 F. 3d, at 1175, n. 46. The
United States, in its brief as amicus curiae supporting respondents, simi
larly observed that, “[e]ven though Title III participation is not a complete
defense under the EEOA, whether a State is reaching its own goals under
Title III may be relevant in an EEOA suit.” Brief for United States
24. And the District Court noted that, “[b]y increasing the standards
of accountability, [NCLB] has to some extent significantly changed State
educators approach to educating students in Arizona.” Flores v. Ari
zona, 480 F. Supp. 2d 1157, 1160–1161 (Ariz. 2007).
13 Among other things, the state department of education formulated a
compliance plan, approved by the U. S. Department of Education. The
state board of education promulgated statewide ELL proficiency stand
ards, adopted uniform assessment standards, and initiated programs for
monitoring school districts and training structured English immersion
teachers. See 516 F. 3d, at 1154; see also Reply Brief for Petitioner
Superintendent 29–31.
14 See Brief for Petitioner Superintendent 22, n. 13 (“At [Nogales], Title
I monies increased from $1,644,029.00 in 2000 to $3,074,587.00 in 2006, Title
II monies increased from $216,000.00 in 2000 to $466,996.00 in 2006, and
Title III monies, which did not exist in 2000, increased from $261,818.00
in 2003 to $322,900.00 in 2006”).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
464 HORNE v. FLORES
Opinion of the Court
provides evidence of the progress and achievement of No
gales’ ELL students.15 This evidence could provide persua
sive evidence of the current effectiveness of Nogales’ ELL
programming.16
Fourth and finally, NCLB marks a shift in federal edu
cation policy. See Brief for Petitioner Speaker of the Ari
zona House of Representatives et al. 7–16. NCLB grants
States “flexibility” to adopt ELL programs they believe are
“most effective for teaching English.” § 6812(9). Reflect
ing a growing consensus in education research that increased
funding alone does not improve student achievement,17
15 See, e. g., App. to Pet. for Cert. in No. 08–289, pp. 310–311 (2005–2006
testing data for ELL students, reclassified ELL students, and non-ELL
students on statewide achievement tests); id., at 312 (2005–2006 data re
garding Nogales’ achievement of the State’s annual measurable account
ability objectives for ELL students).
16 The Court of Appeals interpreted the testing data in the record to
weigh against a finding of effective programming in Nogales. See 516 F.
3d, at 1157 (noting that “[t]he limits of [Nogales’] progress . . . are apparent
in the AIMS test results and reclassification test results”); id., at 1169–
1170 (citing “the persistent achievement gaps documented in [Nogales’]
AIMS test data” between ELL students and native speakers). We do not
think the District Court made sufficient factual findings to support its
conclusions about the effectiveness of Nogales’ ELL programming, and we
question the Court of Appeals’ interpretation of the data for three reasons.
First, as the Court of Appeals recognized, the absence of longitudinal data
in the record precludes useful comparisons. See id., at 1155. Second,
the AIMS tests—the statewide achievement tests on which the Court of
Appeals primarily relied and to which the dissent cites in Appendix A of
its opinion—are administered in English. It is inevitable that ELL stu
dents (who, by definition, are not yet proficient in English) will underper
form as compared to native speakers. Third, the negative data that the
Court of Appeals highlights is balanced by positive data. See, e. g., App.
97 (reporting that for the 2005–2006 school year, on average, reclassified
students did as well as, if not better than, native English speakers on the
AIMS tests).
17 See, e. g., Hanushek, The Failure of Input-Based Schooling Policies,
113 Economic J. F64, F69 (Feb. 2003) (reviewing U. S. data regarding
“input policies” and concluding that although such policies “have been vig
orously pursued over a long period of time,” there is “no evidence that

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
465 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
NCLB expressly refrains from dictating funding levels. In
stead, it focuses on the demonstrated progress of students
through accountability reforms.18 The original declaratory
judgment order, in contrast, withdraws the authority of state
and local officials to fund and implement ELL programs that
best suit Nogales’ needs, and measures effective program
ming solely in terms of adequate incremental funding. This
conflict with Congress’ determination of federal policy may
constitute a significantly changed circumstance, warranting
relief. See Railway Employees v. Wright, 364 U. S. 642, 651
(1961) (noting that a court decree should be modified when
“a change in law brings [the decree] in conflict with statu
tory objectives”).
3
Structural and management reforms in Nogales constitute
another relevant change in circumstances. These reforms
the added resources have improved student performance”); A. LeFevre,
American Legislative Exchange Council, Report Card on American Edu
cation: A State-by-State Analysis 132–133 (15th ed. 2008) (concluding that
spending levels alone do not explain differences in student achievement);
G. Burtless, Introduction and Summary, in Does Money Matter? The Ef
fect of School Resources on Student Achievement and Adult Success 1, 5
(1996) (noting that “[i]ncreased spending on school inputs has not led to
notable gains in school performance”).
18 Ed u c a t i o n l i te ra tu re ov er wh el mi ng ly su pp or ts re l i an ce on
accountability-based reforms as opposed to pure increases in spending.
See, e. g., Hanushek & Raymond, Does School Accountability Lead to Im
proved Student Performance? 24 J. Pol’y Analysis & Mgmt. 297, 298 (2005)
(concluding that “the introduction of accountability systems into a state
tends to lead to larger achievement growth than would have occurred
without accountability”); U. S. Chamber of Commerce, Leaders and Lag
gards: A State-by-State Report Card on Educational Effectiveness 6, 7–10
(Feb. 2007) (discussing various factors other than inputs—such as a focus
on academic standards and accountability—that have a significant impact
on student achievement); S. Fuhrman, Introduction, in Redesigning Ac
countability Systems for Education 1, 3–9 (S. Fuhrman & R. Elmore eds.
2004); E. Hanushek et al., Making Schools Work: Improving Performance
and Controlling Costs 151–176 (1994).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
466 HORNE v. FLORES
Opinion of the Court
were led by Kelt Cooper, the Nogales superintendent from
2000 to 2005, who “adopted policies that ameliorated or elimi
nated many of the most glaring inadequacies discussed
by the district court.” 516 F. 3d, at 1156. Among other
things, Cooper “reduce[d] class sizes,” “significantly im
prov[ed] student/teacher ratios,” “improved teacher quality,”
“pioneered a uniform system of textbook and curriculum
planning,” and “largely eliminated what had been a severe
shortage of instructional materials.” Id., at 1156–1157.
The Court of Appeals recognized that by “[u]sing careful fi
nancial management and applying for ‘all funds available,’
Cooper was able to achieve his reforms with limited re
sources.” Id., at 1157. But the Court of Appeals missed
the legal import of this observation—that these reforms
might have brought Nogales’ ELL programming into compli
ance with the EEOA even without sufficient ELL incremen
tal funding to satisfy the District Court’s original order. In
stead, the Court of Appeals concluded that to credit Cooper’s
reforms would “penaliz[e]” Nogales “for doing its best to
make do, despite Arizona’s failure to comply with the terms
of the judgment,” and would “absolve the state from provid
ing adequate ELL incremental funding as required by the
judgment.” Id., at 1168. The District Court similarly dis
counted Cooper’s achievements, acknowledging that Nogales
was “doing substantially better than it was in 2000,” but con
cluding that because the progress resulted from management
efforts rather than increased funding, its progress was
“fleeting at best.” 480 F. Supp. 2d, at 1160.
Entrenched in the framework of incremental funding, both
courts refused to consider that Nogales could be taking “ap
propriate action” to address language barriers even without
having satisfied the original order. This was error. The
EEOA seeks to provide “equal educational opportunity” to
“all children enrolled in public schools.” § 1701(a). Its ulti
mate focus is on the quality of educational programming and

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
467 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
services provided to students, not the amount of money
spent on them. Accordingly, there is no statutory basis
for precluding petitioners from showing that Nogales has
achieved EEOA-compliant programming by means other
than increased funding—for example, through Cooper’s struc
tural, curricular, and accountability-based reforms. The
weight of research suggests that these types of local re
forms, much more than court-imposed funding mandates,
lead to improved educational opportunities.19 Cooper even
testified that, without the structural changes he imposed,
“additional money” would not “have made any difference to
th[e] students” in Nogales. Addendum to Reply Brief for
Petitioner Speaker of the Arizona House of Representa
tives et al. 15.
The Court of Appeals discounted Cooper’s reforms for
other reasons as well. It explained that while they “did
ameliorate many of the specific examples of resource short
ages that the district court identified in 2000,” they did not
“result in such success as to call into serious question [No
gales’] need for increased incremental funds.” 516 F. 3d, at
1169. Among other things, the Court of Appeals referred to
“the persistent achievement gaps documented in [Nogales’]
AIMS test data” between ELL students and native speak
ers, id., at 1170, but any such comparison must take into
account other variables that may explain the gap. In any
event, the EEOA requires “appropriate action” to remove
language barriers, § 1703(f), not the equalization of results
between native and nonnative speakers on tests adminis
tered in English—a worthy goal, to be sure, but one that
may be exceedingly difficult to achieve, especially for older
ELL students.
19 See, e. g., Springer & Guthrie, Politicization of the School Finance
Legal Process, in School Money Trials 102, 121 (M. West & P. Peterson
eds. 2007); E. Hanushek & A. Lindseth, Schoolhouses, Courthouses, and
Statehouses: Solving the Funding-Achievement Puzzle in America’s Public
Schools 146 (2009).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
468 HORNE v. FLORES
Opinion of the Court
The Court of Appeals also referred to the subpar perform
ance of Nogales’ high schools. There is no doubt that No
gales’ high schools represent an area of weakness, but the
District Court made insufficient factual findings to support
a conclusion that the high schools’ problems stem from a fail
ure to take “appropriate action,” and constitute a violation
of the EEOA.20
The EEOA’s “appropriate action” requirement grants
States broad latitude to design, fund, and implement ELL
programs that suit local needs and account for local condi
tions. A proper Rule 60(b)(5) inquiry should recognize this
and should ask whether, as a result of structural and mana
gerial improvements, Nogales is now providing equal educa
tional opportunities to ELL students.
4
A fourth potentially important change is an overall in
crease in the education funding available in Nogales. The
original declaratory judgment order noted five sources of
funding that collectively financed education in the State:
(1) the State’s “base level” funding, (2) ELL incremental
funding, (3) federal grants, (4) regular district and county
taxes, and (5) special voter-approved district and county
taxes called “overrides.” 172 F. Supp. 2d, at 1227. All five
sources have notably increased since 2000.21 Notwithstand
20 There are many possible causes for the performance of students in
Nogales’ high school ELL programs. These include the difficulty of
teaching English to older students (many of whom, presumably, were not
in English-speaking schools as younger students) and problems such as
drug use and the prevalence of gangs. See Reply Brief for Petitioner
Speaker of the Arizona House of Representatives et al. 14–15; Reply Brief
for Petitioner Superintendent 16–17; App. 116–118. We note that no
court has made particularized findings as to the effectiveness of ELL pro
gramming offered at Nogales’ high schools.
21 The Court of Appeals reported, and it is not disputed, that “[o]n an
inflation-adjusted statewide basis, including all sources of funding, support
for education has increased from $3,139 per pupil in 2000 to an estimated

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
469 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
ing these increases, the Court of Appeals rejected petition
ers’ claim that overall education funds were sufficient to sup
port EEOA-compliant programming in Nogales. The court
reasoned that diverting base-level education funds would
necessarily hurt other state educational programs, and was
not, therefore, an “ ‘appropriate’ step.” 516 F. 3d, at 1171.
In so doing, it foreclosed the possibility that petitioners could
establish changed circumstances warranting relief through
an overall increase in education funding available in Nogales.
This was clear legal error. As we have noted, the EEOA’s
“appropriate action” requirement does not necessarily re
quire any particular level of funding, and to the extent that
funding is relevant, the EEOA certainly does not require
that the money come from any particular source. In addi
tion, the EEOA plainly does not give the federal courts the
authority to judge whether a State or a school district is
providing “appropriate” instruction in other subjects. That
remains the province of the States and the local schools. It
is unfortunate if a school, in order to fund ELL programs,
must divert money from other worthwhile programs, but
such decisions fall outside the scope of the EEOA. Accord
ingly, the analysis of petitioners’ Rule 60(b)(5) motion should
evaluate whether the State’s budget for general education
funding, in addition to any local revenues,22 is currently sup
porting EEOA-compliant ELL programming in Nogales.
Because the lower courts engaged in an inadequate Rule
60(b)(5) analysis, and because the District Court failed to
make up-to-date factual findings, the analysis of the lower
$3,570 per pupil in 2006. Adding in all county and local sources, funding
has gone from $5,677 per pupil in 2000 to an estimated $6,412 per pupil in
2006. Finally, federal funding has increased. In 2000, the federal gov
ernment provided an additional $526 per pupil; in 2006, it provided an
estimated $953.” 516 F. 3d, at 1155.
22 Each year since 2000, Nogales voters have passed an override. Reve
nues from Nogales’ override have increased from $895,891 in 2001 to
$1,674,407 in 2007. App. to Pet. for Cert. in No. 08–294, p. 431a.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
470 HORNE v. FLORES
Opinion of the Court
courts was incomplete and inadequate with respect to all of
the changed circumstances just noted. These changes are
critical to a proper Rule 60(b)(5) analysis, however, as they
may establish that Nogales is no longer in violation of the
EEOA and, to the contrary, is taking “appropriate action” to
remove language barriers in its schools. If this is the case,
continued enforcement of the District Court’s original order
is inequitable within the meaning of Rule 60(b)(5), and relief
is warranted.
IV
We turn, finally, to the District Court’s entry of statewide
relief.23 The Nogales district, which is situated along the
Mexican border, is one of 239 school districts in the State
of Arizona. Nogales students make up about one-half of 1
percent of the entire State’s school population.24 The record
contains no factual findings or evidence that any school dis
trict other than Nogales failed (much less continues to fail)
to provide equal educational opportunities to ELL students.
See App. to Pet. for Cert. in No. 08–294, at 177a–178a. Nor
have respondents explained how the EEOA could justify a
statewide injunction when the only violation claimed or
23 The dissent contends that this issue was not raised below, but what is
important for present purposes is that, for the reasons explained in the
previous parts of this opinion, these cases must be remanded to the Dis
trict Court for a proper Rule 60(b)(5) analysis. Petitioners made it clear
at oral argument that they wish to argue that the extension of the remedy
to districts other than Nogales should be vacated. See Tr. of Oral Arg.
63 (“Here the EEOA has been transmogrified to apply statewide. That
has not been done before. It should not have been done in the first in
stance but certainly in light of the changed circumstances”); see also id.,
at 17–18, 21, 26. Accordingly, if petitioners raise that argument on re
mand, the District Court must consider whether there is any legal or fac
tual basis for denying that relief.
24 See Ariz. Dept. of Ed., Research and Evaluation Section, 2008–2009
October Enrollment by School, District and Grade 1, 17, http://www.ade.
state.az.us/researchpolicy/AZEnroll/2008-2009/Octenroll2009schoolby
grade.pdf (as visited June 18, 2009, and available in Clerk of Court’s case
file).

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
471 Cite as: 557 U. S. 433 (2009)
Opinion of the Court
proved was limited to a single district. See Jenkins, 515
U. S., at 89–90; Milliken, 433 U. S., at 280. It is not even
clear that the District Court had jurisdiction to issue a state
wide injunction when it is not apparent that plaintiffs—a
class of Nogales students and their parents—had standing to
seek such relief.
The only explanation proffered for the entry of statewide
relief was based on an interpretation of the Arizona Consti
tution. We are told that the former attorney general “af
firmatively urged a statewide remedy because a ‘Nogales
only’ remedy would run afoul of the Arizona Constitu
tion’s requirement of ‘a general and uniform public school
system.’ ” Brief for Respondent Flores et al. 38 (quoting
Ariz. Const., Art. 11, § 1(A); some internal quotation marks
omitted).
This concern did not provide a valid basis for a statewide
federal injunction. If the state attorney general believed
that a federal injunction requiring increased ELL spending
in one district necessitated, as a matter of state law, a similar
increase in every other district in the State, the attorney
general could have taken the matter to the state legislature
or the state courts. But the attorney general did not do so.
Even if she had, it is not clear what the result would have
been. It is a question of state law, to be determined by
state authorities, whether the equal funding provision of the
Arizona Constitution would require a statewide funding
increase to match Nogales’ ELL funding, or would leave
Nogales as a federally compelled exception. By failing to
recognize this, and by entering a statewide injunction that
intruded deeply into the State’s budgetary processes based
solely on the attorney general’s interpretation of state law,
the District Court obscured accountability for the drastic
remedy that it entered.
When it is unclear whether an onerous obligation is the
work of the Federal or State Government, accountability is
diminished. See New York v. United States, 505 U. S. 144,

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
472 HORNE v. FLORES
Breyer, J., dissenting
169 (1992). Here, the District Court “improperly pre
vent[ed] the citizens of the State from addressing the issue
[of statewide relief] through the processes provided by the
State’s constitution.” Hawaii v. Office of Hawaiian Affairs,
556 U. S. 163, 176–177 (2009). Assuming that petitioners, on
remand, press their objection to the statewide extension of the
remedy, the District Court should vacate the injunction inso
far as it extends beyond Nogales unless the court concludes
that Arizona is violating the EEOA on a statewide basis.
There is no question that the goal of the EEOA—overcom
ing language barriers—is a vitally important one, and our
decision will not in any way undermine efforts to achieve
that goal. If petitioners are ultimately granted relief from
the judgment, it will be because they have shown that the
Nogales School District is doing exactly what this statute
requires—taking “appropriate action” to teach English to
students who grew up speaking another language.
* * *
We reverse the judgment of the Court of Appeals and re
mand the cases for the District Court to determine whether,
in accordance with the standards set out in this opinion, peti
tioners should be granted relief from the judgment.
It is so ordered.
Justice Breyer, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
The Arizona Superintendent of Public Instruction, the
President of the Arizona Senate, and the Speaker of the Ari
zona House of Representatives (the petitioners here) brought
a Federal Rule of Civil Procedure 60(b)(5) motion in a Fed
eral District Court asking the court to set aside a judgment
(and accompanying orders) that the court had entered in the
year 2000. The judgment held that the State of Arizona’s
plan for funding its English Language Learner program was

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
473 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
arbitrary, and therefore the State had failed to take “appro
priate action to overcome language barriers that impede
equal participation by its” Spanish-speaking public school
students “in its instructional programs. ” 20 U. S. C.
§ 1703(f); Castaneda v. Pickard, 648 F. 2d 989, 1010 (CA5
1981) (interpreting “appropriate action” to include the provi
sion of “necessary” financial and other “resources”). The
moving parties argued that “significant change[s] either in
factual conditions or in law,” Rufo v. Inmates of Suffolk
County Jail, 502 U. S. 367, 384 (1992), entitled them to relief.
The State of Arizona, the Arizona Board of Education, and
the original plaintiffs in the case (representing students from
Nogales, Arizona) opposed the superintendent’s Rule 60(b)(5)
motion. They are respondents here.
The District Court, after taking evidence and holding
eight days of hearings, considered all the changed circum
stances that the parties called to its attention. The court
concluded that some relevant “changes” had taken place.
But the court ultimately found those changes insufficient to
warrant setting aside the original judgment. The Court of
Appeals, in a carefully reasoned 41-page opinion, affirmed
that district court determination. This Court now sets the
Court of Appeals’ decision aside. And it does so, it says,
because “the lower courts focused excessively on the narrow
question of the adequacy of the State’s incremental funding
for [English-learning] instruction instead of fairly consider
ing the broader question, whether, as a result of important
changes during the intervening years, the State was fulfilling
its obligation” under the Act “by other means.” Ante, at
439 (emphasis added).
The Court reaches its ultimate conclusion—that the lower
courts did not “fairly consider” the changed circumstances—
in a complicated way. It begins by placing these cases in a
category it calls “institutional reform litigation.” Ante,
at 447. It then sets forth special “institutional reform litiga
tion” standards applicable when courts are asked to modify

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
474 HORNE v. FLORES
Breyer, J., dissenting
judgments and decrees entered in such cases. It applies
those standards, and finds that the lower courts committed
error.
I disagree with the Court for several reasons. For one
thing, the “institutional reform” label does not easily fit
these cases. For another, the review standards the Court
enunciates for “institutional reform” cases are incomplete
and, insofar as the Court applies those standards here, they
effectively distort Rule 60(b)(5)’s objectives. Finally, my
own review of the record convinces me that the Court is
wrong regardless. The lower courts did “fairly consider”
every change in circumstances that the parties called to
their attention. The record more than adequately supports
this conclusion. In a word, I fear that the Court misapplies
an inappropriate procedural framework, reaching a result
that neither the record nor the law adequately supports. In
doing so, it risks denying schoolchildren the English-learning
instruction necessary “to overcome language barriers that
impede” their “equal participation.” 20 U. S. C. § 1703(f).
I
A
To understand my disagreement with the Court, it is un
fortunately necessary to examine the record at length and in
detail. I must initially focus upon the Court’s basic criticism
of the lower courts’ analysis, namely, that the lower courts
somehow lost sight of the forest for the trees. In the major
ity’s view, those courts—as well as this dissent—wrongly
focused upon a subsidiary matter, “incremental” English
learning program “funding,” rather than the basic matter,
whether “changes” had cured, or had come close to curing,
the violation of federal law that underlay the original judg
ment. Ante, at 439. In the Court’s view, it is as if a district
court, faced with a motion to dissolve a school desegregation
decree, focused only upon the school district’s failure to pur

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
475 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
chase 50 decree-required school buses, instead of discussing
the basic question, whether the schools had become inte
grated without need for those 50 buses.
Thus the Court writes that the lower courts focused so
heavily on the original decree’s “incremental funding” re
quirement that they failed to ask whether “the State was
fulfilling its obligation under” federal law “by other means.”
Ibid. And the Court frequently criticizes the Court of Ap
peals for having “focused almost exclusively on the suffi
ciency of incremental funding,” ante, at 452; for “confining
the scope of its analysis to” the “incremental funding re
quirement,” ante, at 453; for having “asked only whether
changed circumstances affected [English-learning] funding
and, more specifically . . . incremental funding,” ibid.; for
inquiring only “into whether the deficiency in . . . incremen
tal funding that the District Court identified in 2000 had
been remedied,” ante, at 454; and (in case the reader has not
yet gotten the point) for “focusing so intensively on Arizona’s
incremental . . . funding,” ante, at 455. The Court adds that
the District Court too was wrong to have “asked only
whether petitioners had satisfied the original declaratory
judgment order through increased incremental funding.”
Ibid.
The problem with this basic criticism is that the State’s
provision of adequate resources to its English-learning stu
dents, i. e., what the Court refers to as “incremental fund
ing,” has always been the basic contested issue in these
cases. That is why the lower courts continuously focused
attention directly upon it. In the context of these cases they
looked directly at the forest, not the trees. To return to
the school desegregation example, the court focused upon the
heart of the matter, the degree of integration, and not upon
the number of buses the school district had purchased. A
description of the statutory context and the history of these
cases makes clear that the Court cannot sensibly drive a

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
476 HORNE v. FLORES
Breyer, J., dissenting
wedge (as it wishes to do) between what it calls the “incre
mental funding” issue and the uncured failure to comply with
the requirements of federal law.
1
The lawsuit filed in these cases charged a violation of sub
section (f) of § 204 of the Equal Educational Opportunities
Act of 1974, 88 Stat. 515, 20 U. S. C. § 1703(f). Subsection
(f) provides:
“No State shall deny equal educational opportunity to
an individual on account of his or her race, color, sex, or
national origin by—
. . . . .
“(f) the failure by an educational agency to take
appropriate action to overcome language barriers that
impede equal participation by its students in its in
structional programs.”
The provision is part of a broader Act that embodies princi
ples that President Nixon set forth in 1972, when he called
upon the Nation to provide “equal educational opportunity
to every person,” including the many “poor” and minority
children long “doomed to inferior education” as well as those
“who start their education under language handicaps.”
See Address to the Nation on Equal Educational Opportu
nity and Busing, 8 Weekly Comp. of Pres. Doc. 590, 591 (em
phasis added) (hereinafter Nixon Address).
In 1974, this Court wrote that to provide all students
“with the same facilities, textbooks, teachers, and curricu
lum” will “effectively foreclos[e]” those “students who do not
understand English . . . from any meaningful education,”
making a “mockery of public education.” Lau v. Nichols,
414 U. S. 563, 566 (emphasis added). The same year Con
gress, reflecting these concerns, enacted subsection (f) of the
Act—a subsection that seeks to “remove language . . . barri

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
477 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
ers” that impede “true equality of educational opportunity.”
H. R. Rep. No. 92–1335, p. 6 (1972).
2
In 1981, in Castaneda v. Pickard, 648 F. 2d 989, the Court
of Appeals for the Fifth Circuit interpreted subsection (f).
It sought to construe the statutory word “appropriate” so as
to recognize both the obligation to take account of “the need
of limited English speaking children for language assistance”
and the fact that the “governance” of primary and secondary
education ordinarily “is properly reserved to . . . state and
local educational agencies.” Id., at 1008, 1009.
The court concluded that a court applying subsection (f)
should engage in three inquiries. First, the court should
“ascertain” whether the school system, in respect to students
who are not yet proficient in English, “is pursuing” an
English-learning program that is “informed by an educa
tional theory recognized as sound by some experts in the
field or, at least, deemed a legitimate experimental strategy.”
Ibid. Second, that court should determine “whether the
programs and practices actually used by [the] school system
are reasonably calculated to implement effectively the educa
tional theory adopted by the school,” which is to say that the
school system must “follow through with practices, re
sources and personnel necessary to transform” its chosen
educational theory “into reality.” Id., at 1010 (emphasis
added). Third, if practices, resources, and personnel are ad
equate, the court should go on to ascertain whether there is
some indication that the programs produce “results,” i. e.,
that “the language barriers confronting students are actually
being overcome.” Ibid.
Courts in other Circuits have followed Castaneda’s ap
proach. See, e. g., Gomez v. Illinois State Bd. of Educ., 811
F. 2d 1030, 1041 (CA7 1987); United States v. Texas, 680 F. 2d
356, 371 (CA5 1982); Valeria G. v. Wilson, 12 F. Supp. 2d

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
478 HORNE v. FLORES
Breyer, J., dissenting
1007, 1017–1018 (ND Cal. 1998). No Circuit has denied its
validity. And no party in these cases contests the District
Court’s decision to use Castaneda’s three-part standard in
these cases before us.
3
The plaintiffs in these cases are a class of English lan
guage learner students, i. e., students with limited profi
ciency in English, who are enrolled in the school district in
Nogales, a small city along the Mexican border in Arizona in
which the vast majority of students come from homes where
Spanish is the primary language. In 1992, they filed the
present lawsuit against the State of Arizona, its board of
education, and the superintendent, claiming that the State
had violated subsection (f), not by failing to adopt proper
English-learning programs, but by failing “to provide finan
cial and other resources necessary” to make those programs
a practical reality for Spanish-speaking students. App. 7,
¶ 20 (emphasis added); see Castaneda, supra, at 1010 (sec
ond, i. e., “resource,” requirement). In particular, they said,
“[t]he cost” of programs that would allow those students to
learn effectively, say, to read English at a proficient level,
“far exceeds the only financial assistance the State theoreti
cally provides.” App. 7, ¶ 20(a).
The students sought a declaration that the State had “sys
tematically . . . failed or refused to provide fiscal as well
as other resources sufficient to enable” the Nogales Uni
fied School District and other “similarly situated [school]
districts” to “establish and maintain” successful programs
for English learners. Id., at 10, ¶ 28. And they sought an
appropriate injunction requiring the provision of such
resources. The state defendants answered the complaint.
And after resolving disagreements on various subsidiary is
sues, see id., at 19–30, the parties proceeded to trial on the
remaining disputed issue in the case, namely, whether the
State and its education authorities “adequately fund and
oversee” their English-learning program. Flores v. Ari

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
479 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
zona, 172 F. Supp. 2d 1225, 1226 (Ariz. 2000) (emphasis
added).
In January 2000, after a 3-day bench trial, the Dis
trict Court made 64 specific factual findings, including the
following:
(1) The State assumes that its school districts need (and
will obtain from local and statewide sources) funding equal
to a designated “base level amount” per child—reflecting the
funding required to educate a “typical” student, Flores v.
Arizona, 516 F. 3d 1140, 1147 (CA9 2008)—along with an
additional amount needed to educate each child with special
educational needs, including those children who are not yet
proficient in English. 172 F. Supp. 2d, at 1227–1228.
(2) In the year 2000, the “base level amount” the State
assumed necessary to educate a typical child amounted to
roughly $3,174 (in year 2000 dollars). Id., at 1227.
(3) A cost study conducted by the State in 1988 showed
that, at that time, English-learning programming cost school
districts an additional $424 per English-learning child. Id.,
at 1228. Adjusted for inflation to the year 2000, the extra
cost per student of the State’s English-learning program was
$617 per English-learning child.
(4) In the year 2000, the State’s funding formula provided
school districts with only $150 to pay for the $617 in extra
costs per child that the State assumed were needed to pay
for its English-learning program. Id., at 1229.
The record contains no suggestion that Nogales, or any
other school district, could readily turn anywhere but to the
State to find the $467 per-student difference between the
amount the State assumed was needed and the amount that
it made available. See id., at 1230. Nor does the record
contain any suggestion that Nogales or any other school dis
trict could have covered additional costs by redistributing
“base level,” typical-child funding it received. (In the year
2000, Arizona, compared with other States, provided the
third-lowest amount of funding per child. U. S. Dept. of Ed

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
480 HORNE v. FLORES
Breyer, J., dissenting
ucation, Institute of Education Sciences, National Center for
Education Statistics, T. Snyder, S. Dillow, & C. Hoffman, Di
gest of Education Statistics 2008, Ch. 2, Revenues and Ex
penditures, Table 184, http://nces.ed.gov/pubs2009/2009020.pdf
(hereinafter 2008 Digest) (all Internet materials as visited
June 23, 2009, and available in Clerk of Court’s case file).)
Based on these and related findings, the District Court
concluded that the State’s method of paying for the addi
tional costs associated with English-learning education was
“arbitrary and capricious and [bore] no relation to the actual
funding needed.” 172 F. Supp. 2d, at 1239. The court
added that the State’s provision of financial resources was
“not reasonably calculated to effectively implement” the
English-learning program chosen by the State. Ibid.
Hence, the State had failed to take “appropriate action” to
teach English to non-English-speaking students, in that it
had failed (in Castaneda’s words) to provide the “practices,
resources, and personnel” necessary to make its chosen edu
cational theory a “reality.” 172 F. Supp. 2d, at 1238–1239;
see also § 1703(f); Castaneda, 648 F. 2d, at 1010.
The District Court consequently entered judgment in
the students’ favor. The court later entered injunctions
(1) requiring the State to “prepare a cost study to estab
lish the proper appropriation to effectively implement” the
State’s own English-learning program, and (2) requiring the
State to develop a funding mechanism that would bear some
“reasonabl[e]” or “rational relatio[n] to the actual funding
needed” to ensure that non-English-speaking students would
“achieve mastery” of the English language. See, e. g., Flo
res v. Arizona, 160 F. Supp. 2d 1043, 1045, 1047 (Ariz. 2000);
No. CV–92–596–TUCACM, 2001 WL 1028369, *2 (D. Ariz.,
June 25, 2001) (emphasis added).
The State neither appealed nor complied with the 2000 de
claratory judgment or any of the injunctive orders. When,
during the next few years, the State failed to produce either
a study of the type ordered or a funding program rationally
related to need for financial resources, the court imposed a

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
481 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
series of fines upon the State designed to lead the State to
comply with its orders. Flores v. Arizona, 405 F. Supp. 2d
1112, 1120 (Ariz. 2005).
In early 2006, the state legislature began to consider HB
2064, a bill that, among other things, provided for the cre
ation of a “Task Force” charged to develop “cost-efficient”
methods for teaching English. The bill would also increase
the appropriation for teaching English to students who
needed to learn it (though it prohibited the spending of any
increase upon any particular student for more than two
years). In March 2006, the petitioners here (the Arizona
Superintendent of Public Instruction, the President of Arizo
na’s Senate, and the Speaker of its House of Representatives)
asked the District Court (1) to consider whether HB 2064,
as enacted, would satisfy its judgment and injunctive orders,
(2) to forgive the contempt fine liability that the State had
accrued, and (3) to dissolve the injunctive orders and grant
relief from the 2000 judgment. Motion of Intervenors To
Purge Contempt, Dissolve Injunctions, Declare the Judg
ment and Orders Satisfied, and Set Aside Injunctions as Void
in No. CV–92–596–TUC–RCC (D. Ariz., Mar. 24, 2006), Dkt.
No. 422, pp. 1–2 (hereinafter Motion To Purge).
The dissolution request, brought under Rule 60(b)(5),
sought relief in light of changed circumstances. The “sig
nificant changed circumstances” identified amounted to
changes in the very circumstances that underlay the initial
finding of violation, namely, Arizona’s funding-based fail
ure to provide adequate English-learning educational re
sources. The moving parties asserted that “Arizona has
poured money” into Nogales as a result of various funding
changes, id., at 5. They pointed to a 0.6% addition to the
state sales tax; to the dedication of a portion of the State’s
share of Indian gaming proceeds to Arizona school districts;
to the increase in federal funding since 2001; and to HB
2064’s increase in state-provided funding. Id., at 5–8. The
parties said that, in light of these “dramatic” additions to the
funding available for education in Arizona, the court should

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
482 HORNE v. FLORES
Breyer, J., dissenting
“declare the judgment and orders satisfied, and . . . re
lieve defendants from the judgment and orders under Rule
60(b)(5).” Id., at 8.
In April 2006, the District Court held that HB 2064 by
itself did not adequately satisfy the court’s orders; it denied
the request to forgive the fines; but it did not decide the
petitioners’ Rule 60(b)(5) motion. In August 2006, the
Court of Appeals ordered the District Court to decide that
motion, and, in particular, to consider whether changes to
“the landscape of educational funding . . . required modifica
tion of the original court order or otherwise had a bearing
on the appropriate remedy.” Flores v. Rzeslawski, 204 Fed.
Appx. 580, 582 (CA9 2006) (memorandum).
In January 2007, the District Court held a hearing that
lasted eight days and produced an evidentiary transcript of
1,684 pages. The hearing focused on the changes that the
petitioners said had occurred and justified setting aside the
original judgment. The petitioners pointed to three sets of
changed circumstances—all related to “practices, resources,
and personnel”—which, in their view, showed that the judg
ment and the related orders were no longer necessary.
They argued that the changes had brought the State into
compliance with the Act’s requirements. The three sets of
changes consisted of (1) increases in the amount of funding
available to Arizona school districts; (2) changes in the
method of English-learning instruction; and (3) changes in
the administration of the Nogales school district. These
changes, the petitioners said, had cured the resource-linked
deficiencies that were noted in the District Court’s 2000
judgment, 172 F. Supp. 2d, at 1239, and rendered enforce
ment of the judgment and related orders unnecessary.
Based on the hearing and the briefs, the District Court
again found that HB 2064 by itself did not cure the “re
source” problem; it found that all of the changes, resource
related and otherwise, including the new teaching and
administrative methods, taken together, were not sufficient

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
483 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
to warrant setting aside the judgment or the injunctive or
ders; and it denied the Rule 60(b)(5) motion for relief. Flo
res v. Arizona, 480 F. Supp. 2d 1157, 1164–1167 (Ariz. 2007).
The Court of Appeals affirmed the District Court’s conclu
sions, setting forth its reasons, as I have said, in a lengthy
and detailed opinion. The state superintendent, along with
the Speaker of the Arizona House of Representatives and
the President of the Arizona Senate, sought certiorari, and
we granted the petition.
B
Five conclusions follow from the description of these cases
I have just set forth. First, the Rule 60(b)(5) “changes”
upon which the District Court focused included the “changed
teaching methods” and the “changed administrative sys
tems” that the Court criticizes the District Court for ignor
ing. Compare ante, at 459–461, 465–467, with Parts III–A,
III–C, infra. Those changes were, in the petitioners’ view,
related to the “funding” issue, for those changes reduced
the need for increased funding. See Motion To Purge 7.
I concede that the majority of the District Court’s factual
findings focused on funding, see ante, at 455–456. But
where is the legal error, given that the opinion clearly shows
that the District Court considered, “ ‘focus[ed]’ ” upon, and
wrote about all the matters the petitioners raised? Ante,
at 456–457; 480 F. Supp. 2d, at 1160–1161.
Second, the District Court and the Court of Appeals fo
cused more heavily upon “incremental funding” costs, see
ante, at 452–456, for the reason that the State’s provision for
those costs—i. e., its provision of the resources necessary to
run an adequate English-learning program—was the basic
contested issue at the 2000 trial and the sole basis for the
District Court’s finding of a statutory violation. 172 F.
Supp. 2d, at 1226. That is, the sole subsection (f) dispute
in the cases originally was whether the State provides the
“practices, resources and personnel necessary” to implement
its English-learning program. Castaneda, 648 F. 2d, at 1010.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
484 HORNE v. FLORES
Breyer, J., dissenting
To be sure, as the Court points out, changes other than to
the State’s funding system could demonstrate that Nogales
was receiving the necessary resources. See, e. g., ante, at
459–461. But given the centrality of “resources” to these
cases, it is hardly surprising that the courts below scruti
nized the State’s provision of “incremental funding,” but
without ignoring the other related changes to which the
petitioners pointed, such as changes in teaching methods and
administration (all of which the District Court rejected as
insufficient). See Part III, infra.
Third, the type of issue upon which the District Court and
Court of Appeals focused lies at the heart of the statutory
demand for equal educational opportunity. A State’s failure
to provide the “practices, resources and personnel neces
sary” to eliminate the educational burden that accompanies
a child’s inability to speak English is precisely what the stat
ute forbids. See Castaneda, supra, at 1010 (emphasizing
the importance of providing “resources”); Nixon Address 593
(referring to the importance of providing “financial sup
port”). And no one in these cases suggests there is no need
for those resources, e. g., that there are no extra costs associ
ated with English-learning education irrespective of the
teaching method used. English-learning students, after all,
not only require the instruction in “academic content areas”
like math and science that “typical” students require, but
they also need to increase their proficiency in speaking, read
ing, and writing English. This language-acquisition instruc
tion requires particular textbooks and other instructional
materials, teachers trained in the school’s chosen method for
teaching English, special assessment tests, and tutoring and
other individualized instruction—all of which resources cost
money. Brief for Tucson Unified School District et al. as
Amici Curiae 10–13; Structured English Immersion Mod
els of the Arizona English Language Learners Task Force,
http://www.ade.state.az.us/ELLTaskForce/2008/SEIModels
05–14– 08.pdf (describing Arizona’s requirement that

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
485 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
English-learning students receive four hours of language
acquisition instruction per day from specially trained teach
ers using designated English-learning materials); Imazeki,
Assessing the Costs of Adequacy in California Public
Schools, 3 Educ. Fin. & Pol’y 90, 100 (2008) (estimating that
English-learning students require 74% more resources than
typical students). That is why the petitioners, opposed as
they are to the District Court’s judgment and orders, ad
mitted to the District Court that English learners “need
extra help and that costs extra money.” See 480 F. Supp.
2d, at 1161.
Fourth, the “resource” issue that the District Court fo
cused upon when it decided the Rule 60(b)(5) motion and the
statutory subsection (f) issue that lies at the heart of the
court’s original judgment (and the plaintiffs’ original com
plaint) are not different issues, as the Court claims. See
ante, at 457–459. Rather, in all essential respects they are
one and the same issue. In focusing upon the one, the Dis
trict Court and Court of Appeals were focusing upon the
other. For all practical purposes, changes that would have
proved sufficient to show the statutory violation cured would
have proved sufficient to warrant setting aside the original
judgment and decrees, and vice versa. And in context,
judges and parties alike were fully aware of the modification/
violation relationship. See, e. g., Intervenor-Defendants’
Closing Argument Memorandum, No. CV–92–596–TUC–
RCC (D. Ariz., Mar. 13, 2007), Dkt. No. 631, p. 1 (arguing that
factual changes had led to “satisf[action]” of the judgment).
To say, as the Court does, that “[f]unding is merely one
tool that may be employed to achieve the statutory objec
tive,” ante, at 459, while true, is beside the point. Of course,
a State might violate the Act in other ways. But one way
in which a State can violate the Act is to fail to provide
necessary “practices, resources and personnel.” And that is
the way the District Court found that the State had violated
the Act here. Thus, whatever might be true of some other

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
486 HORNE v. FLORES
Breyer, J., dissenting
case, in these cases the failure to provide adequate resources
and the underlying subsection (f) violation were one and the
same thing.
Fifth, the Court is wrong when it suggests that the Dis
trict Court ordered “increased incremental funding,” ante,
at 455; when it faults the District Court for effectively “dic
tating state or local budget priorities,” ante, at 448; when it
claims that state officials welcomed the result “as a means of
achieving appropriations objectives,” ante, at 447, n. 3; and
when it implies that the District Court’s orders required the
State to provide a “particular level of funding,” ante, at 469.
The District Court ordered the State to produce a plan that
set forth a “reasonable” or “rational” relationship between
the needs of English-learning students and the resources
provided to them. The orders expressed no view about
what kind of English-learning program the State should use.
Nor did the orders say anything about the amount of “appro
priations” that the State must provide, ante, at 447, n. 3, or
about any “particular funding mechanism,” ante, at 455, that
the State was obligated to create. Rather, the District
Court left it up to the State “to recommend [to the legisla
ture] the level of funding necessary to support the programs
that it determined to be the most effective.” 160 F. Supp.
2d, at 1044. It ordered no more than that the State (what
ever kind of program it decided to use) must see that the
chosen program benefits from a funding system that is not
“arbitrary and capricious,” but instead “bear[s] a rational re
lationship” to the resources needed to implement the State’s
method. No. CV–92–596–TUCACM, 2001 WL 1028369, *2.
II
Part I shows that there is nothing suspicious or unusual
or unlawful about the lower courts having focused primarily
upon changes related to the resources Arizona would devote
to English-learning education (while also taking account of
all the changes the petitioners raised). Thus the Court’s

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
487 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
basic criticism of the lower court decisions is without founda
tion. I turn next to the Court’s discussion of the standards
of review the Court finds applicable to “institutional re
form” litigation.
To understand my concern about the Court’s discussion of
standards, it is important to keep in mind the well-known
standards that ordinarily govern the evaluation of Rule
60(b)(5) motions. The Rule by its terms permits modifica
tion of a judgment or order (1) when “the judgment has been
satisfied,” (2) “released,” or (3) “discharged”; when the judg
ment or order (4) “is based on an earlier judgment that has
been reversed or vacated”; or (5) “applying [the judgment]
prospectively is no longer equitable.” No one can claim that
the second, third, or fourth grounds are applicable here.
The relevant judgment and orders have not been released or
discharged; nor is there any relevant earlier judgment that
has been reversed or vacated. Thus the only Rule 60(b)(5)
questions are whether the judgment and orders have been
satisfied, or, if not, whether their continued application is
“equitable.” And, as I have explained, in context these
come down to the same question: Is continued enforcement
inequitable because the defendants have satisfied the 2000
declaratory judgment or at least have come close to doing
so, and, given that degree of satisfaction, would it work un
necessary harm to continue the judgment in effect? See
supra, at 485–486.
To show sufficient inequity to warrant Rule 60(b)(5) relief,
a party must show that “a significant change either in factual
conditions or in law” renders continued enforcement of the
judgment or order “detrimental to the public interest.”
Rufo, 502 U. S., at 384. The party can claim that “the statu
tory or decisional law has changed to make legal what the
decree was designed to prevent.” Id., at 388; see also Rail
way Employees v. Wright, 364 U. S. 642, 651 (1961). Or the
party can claim that relevant facts have changed to the point
where continued enforcement of the judgment, order, or de

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
488 HORNE v. FLORES
Breyer, J., dissenting
cree as written would work, say, disproportionately serious
harm. See Rufo, supra, at 384 (modification may be ap
propriate when changed circumstances make enforcement
“substantially more onerous” or “unworkable because of un
foreseen obstacles”).
The Court acknowledges, as do I, as did the lower courts,
that Rufo’s “flexible standard” for relief applies. The Court
also acknowledges, as do I, as did the lower courts, that this
“flexible standard” does not itself define the inquiry a court
passing on a Rule 60(b)(5) motion must make. To give con
tent to this standard, the Court refers to Milliken v. Brad
ley, 433 U. S. 267, 282 (1977), in which this Court said that a
decree cannot seek to “eliminat[e] a condition that does not
violate” federal law or “flow from such a violation,” ante, at
450 (internal quotation marks omitted), and to Frew v. Haw
kins, 540 U. S. 431, 441 (2004), in which this Court said that
a “consent decree” must be “limited to reasonable and neces
sary implementations of federal law,” ante, at 450 (emphasis
added; internal quotation marks omitted). The Court adds
that in an “institutional reform litigation” case, a court must
also take account of the need not to maintain decrees in ef
fect for too long a time, ante, at 448–450, the need to take
account of “sensitive federalism concerns,” ante, at 448, and
the need to take care lest “consent decrees” reflect collusion
between the private plaintiffs and the state defendants at
the expense of the legislative process, ante, at 449.
Taking these cases and considerations together, the major
ity says the critical question for the lower courts is “whether
ongoing enforcement of the original order was supported by
an ongoing violation of federal law (here [subsection (f)]).”
Ante, at 454. If not—i. e., if a current violation of federal
law cannot be detected—then “ ‘responsibility for discharg
ing the State’s obligations [must be] returned promptly to
the State.’ ” Ante, at 452.
One problem with the Court’s discussion of its standards
is that insofar as the considerations it mentions are widely

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
Cite as: 557 U. S. 433 (2009) 489
Breyer, J., dissenting
accepted, the lower courts fully acknowledged and followed
them. The decisions below, like most Rule 60(b)(5) deci
sions, reflect the basic factors the Court mentions. The
lower court opinions indicate an awareness of the fact that
equitable decrees are subject to a “flexible standard” per
mitting modification when circumstances, factual or legal,
change significantly. 516 F. 3d, at 1163; 480 F. Supp. 2d, at
1165 (citing Rufo, supra, at 383). The District Court’s appli
cation of Castaneda’s interpretation of subsection (f), 648
F. 2d, at 1009, along with its efforts to provide state officials
wide discretionary authority (about the level of funding and
the kind of funding plan), shows considerable sensitivity to
“federalism concerns.” And given the many years (at least
seven) of state noncompliance, it is difficult to see how the
decree can have remained in place too long.
Nor is the decree at issue here a “consent decree” as that
term is normally understood in the institutional litigation
context. See ante, at 447–450. The State did consent to a
few peripheral matters that have nothing to do with the
present appeal. App. 19–30. But the State vigorously con
tested the plaintiffs’ basic original claim, namely, that the
State failed to take resource-related “appropriate action”
within the terms of subsection (f). The State presented
proofs and evidence to the District Court designed to show
that no violation of federal law had occurred, and it opposed
entry of the original judgment and every subsequent injunc
tive order, save the relief sought by the petitioners here.
I can find no evidence, beyond the Court’s speculation, show
ing that some state officials have “welcomed” the District
Court’s decision “as a means of achieving appropriations ob
jectives that could not [otherwise] be achieved.” Ante, at
447, n. 3. But even were that so, why would such a fact
matter here more than in any other case in which some state
employees believe a litigant who sues the State is right? I
concede that the State did not appeal the District Court’s
original order or the ensuing injunctions. But the fact that

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
490 HORNE v. FLORES
Breyer, J., dissenting
litigants refrain from appealing does not turn a litigated
judgment into a “consent decree.” At least, I have never
before heard that term so used.
Regardless, the Court’s discussion of standards raises a far
more serious problem. In addition to the standards I have
discussed, supra, at 487–488, our precedents recognize other,
here outcome-determinative, hornbook principles that apply
when a court evaluates a Rule 60(b)(5) motion. The Court
omits some of them. It mentions but fails to apply others.
As a result, I am uncertain, and perhaps others will be un
certain, whether the Court has set forth a correct and work
able method for analyzing a Rule 60(b)(5) motion.
First, a basic principle of law that the Court does not men
tion—a principle applicable in these cases as in others—is
that, in the absence of special circumstances (e. g., plain
error), a judge need not consider issues or factors that the
parties themselves do not raise. That principle of law is
longstanding, it is reflected in Blackstone, and it perhaps
comes from yet an earlier age. 3 Commentaries on the
Laws of England 455 (1768) (“[I]t is a practice unknown to
our law,” when examining the decree of an inferior court, “to
examine the justice of the . . . decree by evidence that was
never produced below”); Clements v. Macheboeuf, 92 U. S.
418, 425 (1876) (“Matters not assigned for error will not be
examined”); see also Savage v. United States, 92 U. S. 382,
388 (1876) (where a party with the “burden . . . to establish”
a “charge . . . fails to introduce any . . . evidence to support
it, the presumption is that the charge is without any founda
tion”); McCoy v. Massachusetts Inst. of Technology, 950
F. 2d 13, 22 (CA1 1991) (“It is hornbook law that theories not
raised squarely in the district court cannot be surfaced for
the first time on appeal” for “[o]verburdened trial judges can
not be expected to be mind readers”). As we have recog
nized, it would be difficult to operate an adversary system of
justice without applying such a principle. See Duignan v.
United States, 274 U. S. 195, 200 (1927). But the majority

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
491 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
repeatedly considers precisely such claims. See, e. g., ante,
at 463–465 (considering significant matters not raised below);
ante, at 470–472 (same).
Second, a hornbook Rule 60(b)(5) principle, which the
Court mentions, ante, at 447, is that the party seeking relief
from a judgment or order “bears the burden of establishing
that a significant change in circumstances warrants” that re
lief. Rufo, 502 U. S., at 383 (emphasis added); cf. Board of
Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S.
237, 249 (1991) (party moving for relief from judgment must
make a “sufficient showing” of change in circumstances).
But the Court does not apply that principle. See, e. g., ante,
at 466–468, and n. 20 (holding that movants potentially win
because of failure of record to show that English-learning
problems do not stem from causes other than funding); see
also ante, at 463–464 (criticizing lower courts for failing to
consider argument not made).
Third, the Court ignores the well-established distinction
between a Rule 60(b)(5) request to modify an order and
a request to set an unsatisfied judgment entirely aside—
a distinction that this Court has previously emphasized.
Cf. Rufo, supra, at 389, n. 12 (emphasizing that “we do not
have before us the question whether the entire decree should
be vacated”). Courts normally do the latter only if the
“party” seeking “to have” the “decree set aside entirely”
shows “that the decree has served its purpose, and there is
no longer any need for the injunction.” 12 J. Moore et al.,
Moore’s Federal Practice § 60.47[2][c] (3d ed. 2009) (herein
after Moore). Instead of applying the distinction, the ma
jority says that the Court of Appeals “strayed” when it
referred to situations in which changes justified setting
an unsatisfied judgment entirely aside as “ ‘likely rare.’ ”
Ante, at 451.
Fourth, the Court says nothing about the well-established
principle that a party moving under Rule 60(b)(5) for relief
that amounts to having a “decree set aside entirely” must

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
492 HORNE v. FLORES
Breyer, J., dissenting
show both (1) that the decree’s objects have been “attained,”
Frew, 540 U. S., at 442, and (2) that it is unlikely, in the ab
sence of the decree, that the unlawful acts it prohibited will
again occur. This Court so held in Dowell, a case in which
state defendants sought relief from a school desegregation
decree on the ground that the district was presently operat
ing in compliance with the Equal Protection Clause. The
Court agreed with the defendants that “a finding by the Dis
trict Court that the Oklahoma City School District was being
operated in compliance with . . . the Equal Protection
Clause” was indeed relevant to the question whether relief
was appropriate. 498 U. S., at 247. But the Court added
that, to show entitlement to relief, the defendants must also
show that “it was unlikely that the [school board] would
return to its former ways.” Ibid. Only then would the
“purposes of the desegregation litigation ha[ve] been fully
achieved.” Ibid. The principle, as applicable here, sim
ply underscores the petitioners’ failure to show that the
“changes” to which they pointed were sufficient to warrant
entirely setting aside the original court judgment.
Fifth, the majority mentions, but fails to apply, the basic
Rule 60(b)(5) principle that a party cannot dispute the legal
conclusions of the judgment from which relief is sought. A
party cannot use a Rule 60(b)(5) motion as a substitute for
an appeal, say, by attacking the legal reasoning underlying
the original judgment or by trying to show that the facts, as
they were originally, did not then justify the order’s issuance.
Browder v. Director, Dept. of Corrections of Ill., 434 U. S.
257, 263, n. 7 (1978); United States v. Swift & Co., 286 U. S.
106, 119 (1932) (party cannot claim that injunction could not
lawfully have been applied “to the conditions that existed at
its making”). Nor can a party require a court to retrace old
legal ground, say, by remaking or rejustifying its original
“constitutional decision every time an effort [is] made either
to enforce or modify” an order. Rufo, supra, at 389–390 (in
ternal quotation marks omitted); see also Frew, supra, at 438

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
493 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
(re jecting argument that federal court lacks power to
enforce an order “unless the court first identifies, at the
enforcement stage, a violation of federal law”).
Here, the original judgment rested upon a finding that the
State had failed to provide Nogales with adequate fund
ing “resources,” Castaneda, 648 F. 2d, at 1010, in violation
of subsection (f)’s “appropriate action” requirement. How
then can the Court fault the lower courts for first and fore
most seeking to determine whether Arizona had developed
a plan that would provide Nogales with adequate funding
resources? How can it criticize the lower courts for having
“insulated the policies embedded in the order . . . from chal
lenge and amendment,” ante, at 453, for having failed to ap
preciate that “funding is simply a means, not the end” of
the statutory requirement, ante, at 454–455, and for having
misperceived “the nature of the obligation imposed by the”
Act, ante, at 459? When the Court criticizes the Court of
Appeals for “misperceiv[ing] . . . the nature of the obligation
imposed” by the Act, ibid., when it second-guesses finding
after finding of the District Court, see Part III, infra, when
it early and often suggests that Arizona may well comply
despite lack of a rational funding plan (and without discuss
ing how the changes it mentions could show compliance), see
ante, at 452, 454–455, what else is it doing but putting “the
plaintiff [or] the court . . . to the unnecessary burden of
reestablishing what has once been decided”? Railway Em
ployees, 364 U. S., at 647.
Sixth, the Court mentions, but fails to apply, the well
settled legal principle that appellate courts, including this
Court, review district court denials of Rule 60(b) motions (of
the kind before us) for abuse of discretion. See Browder,
supra, at 263, n. 7; Railway Employees, supra, at 648–650.
A reviewing court must not substitute its judgment for that
of the district court. See National Hockey League v. Metro
politan Hockey Club, Inc., 427 U. S. 639, 642 (1976) (per cu
riam); see also Calderon v. Thompson, 523 U. S. 538, 567–568

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
494 HORNE v. FLORES
Breyer, J., dissenting
(1998) (Souter, J., dissenting) (“[A] high degree of deference
to the court exercising discretionary authority is the hall
mark of [abuse of discretion] review”). Particularly where,
as here, entitlement to relief depends heavily upon fact
related determinations, the power to review the district
court’s decision “ought seldom to be called into action,”
namely, only in the rare instance where the Rule 60(b) stand
ard “appears to have been misapprehended or grossly misap
plied.” Cf. Universal Camera Corp. v. NLRB, 340 U. S. 474,
490–491 (1951). The Court’s bare assertion that a court
abuses its discretion when it fails to order warranted relief,
ante, at 447, fails to account for the deference due to the
District Court’s decision.
I have just described Rule 60(b)(5) standards that concern
(1) the obligation (or lack of obligation) upon a court to take
account of considerations the parties do not raise; (2) burdens
of proof; (3) the distinction between setting aside and modi
fying a judgment; (4) the need to show that a decree’s basic
objectives have been attained; (5) the importance of not
requiring relitigation of previously litigated matters; and
(6) abuse of discretion review. Does the Court intend to ig
nore one or more of these standards or to apply them differ
ently in cases involving what it calls “institutional reform
litigation”?
If so, the Court will find no support for its approach in the
cases to which it refers, namely, Rufo, Milliken, and Frew.
Rufo involved a motion to modify a complex court-monitor
supervised decree designed to prevent overcrowding in a
local jail. The Court stressed the fact that the modification
did not involve setting aside the entire decree. 502 U. S., at
389, n. 12. It made clear that the party seeking relief from
an institutional injunction “bears the burden of establishing
that a significant change in circumstances warrants” that re
lief. Id., at 383. And it rejected the argument that a re
viewing court must determine, in every case, whether an
ongoing violation of federal law exists. Id., at 389, 390, and

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
495 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
n. 12 (refusing to require a new “ ‘constitutional decision
every time an effort [is] made either to enforce or modify’ ”
a judgment or decree (emphasis added)).
Frew addressed the question whether the Eleventh
Amendment permits a federal district court to enforce a con
sent decree against state officials seeking to bring the State
into compliance with federal law. 540 U. S., at 434–435.
The Court unanimously held that it does; and in doing so, the
Court rejected the State’s alternative argument that a fed
eral court may only enforce such an order if it “first identi
fies . . . a violation of federal law” existing at the time that
enforcement is sought. Id., at 438. Rather, the Court ex
plained that “ ‘federal courts are not reduced to’ ” entering
judgments or orders “ ‘and hoping for compliance,’ ” id., at
440, but rather retain the power to enforce judgments in
order “to ensure that . . . the objects” of the court order are
met, id., at 442. It also emphasized, like Dowell, that relief
is warranted only when “the objects of the decree have been
attained.” 540 U. S., at 442.
What of Milliken? Milliken involved direct review
(rather than a motion for relief) of a district court’s order
requiring the Detroit school system to implement a host of
remedial programs, including counseling and special reading
instruction, aimed at schoolchildren previously required to
attend segregated schools. 433 U. S., at 269, 272. The
Court said that a court decree must aim at “eliminating a
condition” that violates federal law or which “flow[s] from”
such a “violation.” Id., at 282. And it unanimously found
that the remedy at issue was lawful.
These cases confirm the unfortunate fact that the Court
has failed fully to apply the six essential principles that I
have mentioned. If the Court does not intend any such
modifications of these traditional standards, then, as I shall
show, it must affirm the Court of Appeals’ decision. But if
it does intend to modify them, as stated or in application, it
now applies a new set of new rules that are not faithful to

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
496 HORNE v. FLORES
Breyer, J., dissenting
our cases and which will create the dangerous possibility
that orders, judgments, and decrees long final or acquiesced
in, will be unwarrantedly subject to perpetual challenge, of
fering the defendants unjustifiable opportunities endlessly to
relitigate underlying violations with the burden of proof im
posed once again upon the plaintiffs.
I recognize that the Court’s decision, to a degree, reflects
one side of a scholarly debate about how courts should prop
erly handle decrees in “institutional reform litigation.”
Compare, in general, R. Sandler & D. Schoenbrod, Democ
racy by Decree: What Happens When Courts Run Govern
ment (2003), with, e. g., Chayes, The Role of the Judge in
Public Law Litigation, 89 Harv. L. Rev. 1281, 1307–1309
(1976). But whatever the merits of that debate, these cases
do not involve the kind of “institutional litigation” that most
commonly lies at its heart. See, e. g., M. Feeley & E. Rubin,
Judicial Policy Making and the Modern State: How the
Courts Reformed America’s Prisons (1998); but see ante, at
447, n. 3.
These cases do not involve schools, prisons, or mental hos
pitals that have failed to meet basic constitutional standards.
See, e. g., Dowell, 498 U. S., at 240–241. They do not involve
a comprehensive judicial decree that governs the running of
a major institution. See, e. g., Hutto v. Finney, 437 U. S.
678, 683–684 (1978). They do not involve a highly detailed
set of orders. See, e. g., Ramos v. Lamm, 639 F. 2d 559,
585–586 (CA10 1980). They do not involve a special master
charged with the task of supervising a complex decree that
will gradually bring a large institution into compliance with
the law. See, e. g., Ruiz v. Estelle, 679 F. 2d 1115, 1160–1161
(CA5 1982). Rather, they involve the more common com
plaint that a state or local government has failed to meet a
federal statutory requirement. See, e. g., Concilio de Salud
Integral de Loiza, Inc. v. Pe´rez-Perdomo, 551 F. 3d 10, 16
(CA1 2008); Association of Community Orgs. for Reform
Now v. Edgar, 56 F. 3d 791, 797–798 (CA7 1995); John B. v.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
497 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
Menke, 176 F. Supp. 2d 786, 813–814 (MD Tenn. 2001). They
involve a court imposition of a fine upon the State due to its
lengthy failure to take steps to comply. See, e. g., Hook v.
Arizona Dept. of Corrections, 107 F. 3d 1397, 1404 (CA9
1997); Alberti v. Klevenhagen, 46 F. 3d 1347, 1360 (CA5 1995).
And they involve court orders that leave the State free to
pursue the English-learning program of its choice while in
sisting only that the State come up with a funding plan that
is rationally related to the program it chooses. These cases
are more closely akin to Goldberg v. Kelly, 397 U. S. 254
(1970) (in effect requiring legislation to fund welfare-related
“due process” hearings); cf. id., at 277–279 (Black, J., dissent
ing), than they are to the school busing cases that followed
Brown v. Board of Education, 347 U. S. 483 (1954).
As I have said, supra, at 487–489, the framework that I
have just described, filling in those principles the Court ne
glects, is precisely the framework that the lower courts ap
plied. 516 F. 3d, at 1163; 480 F. Supp. 2d, at 1165. In the
opinions below, I can find no misapplication of the legal
standards relevant to these cases. To the contrary, the
Court of Appeals’ opinion is true to the record and fair to the
decision of the District Court. And the majority is wrong to
conclude otherwise.
III
If the Court’s criticism of the lower courts cannot rest
upon what they did do, namely, examine directly whether
Arizona had produced a rational funding program, it must
rest upon what it believes they did not do, namely, ade
quately consider the other changes in English-learning in
struction, administration, and the like to which the peti
tioners referred. Indeed, the Court must believe this, for it
orders the lower courts, on remand, to conduct a “proper
examination” of “four important factual and legal changes
that may warrant the granting of relief from the judgment:”
(1) the “adoption of a new . . . instructional methodology” for
teaching English; (2) “Congress’ enactment” of the No Child

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
498 HORNE v. FLORES
Breyer, J., dissenting
Left Behind Act of 2001, codified in Title 20; (3) “structural
and management reforms in Nogales,” and (4) “increased
overall education funding.” Ante, at 459.
The Court cannot accurately hold, however, that the lower
courts failed to conduct a “proper examination” of these
claims, ibid., for the District Court considered three of them,
in detail and at length, while the petitioners nowhere raised
the remaining argument, which has sprung full grown from
the Court’s own brow, like Athena from the brow of Zeus.
A
The first “change” that the Court says the lower courts
must properly “examin[e]” consists of the “change” of instruc
tional methodology, from a method of “bilingual education”
(teaching at least some classes in Spanish, while providing
separate instruction in English) to a method of “ ‘structured
English immersion’ ” (teaching all or nearly all classes in
English but with a specially designed curriculum and mate
rials). Ante, at 459–461. How can the majority suggest that
the lower courts failed properly to “examine” this matter?
First, more than 2 days of the District Court’s 8-day evi
dentiary hearing were devoted to precisely this matter,
namely, the claim pressed below by the petitioners that “[t]he
adoption of English Immersion” constitutes a “substantial
advancemen[t] in assisting” English learners “to become
English proficient.” Hearing Memorandum in No. CV–92–
596–TUC–RCC (D. Ariz., Jan. 4, 2007), Dkt. No. 588, pp. 4–5.
The State’s director of English acquisition, Irene Moreno, de
scribed the new method as “the most effective” way to teach
English. Tr. 19 (Jan. 9, 2007). An educational consultant,
Rosalie Porter, agreed. Id., at 95–96. The petitioners’ wit
nesses also described a new assessment test, the Arizona
English Language Learner Assessment, id., at 50–51; they
described new curricular models that would systematize in
structional methods, id., at 78; they explained that all teach
ers would eventually be required to obtain an “endorsement”

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
Cite as: 557 U. S. 433 (2009) 499
Breyer, J., dissenting
demonstrating their expertise in the chosen instructional
method, see Proposed Findings of Fact and Conclusions of
Law in No. CV–92–596–TUC–RCC (D. Ariz., Jan 4, 2007),
Dkt. No. 593, p. 7; and they pointed to data showing that the
percentage of Nogales’ English learners successfully com
pleting the program had recently jumped from 1% of such
students in 2004 to 35% in 2006, App. to Pet. for Cert. in
No. 08–289, p. 309.
The District Court in its opinion, referring to the several
days of hearings, recognized the advances and acknowledged
that the State had formulated new systems with new “stand
ards, norms and oversight for Arizona’s public schools and
students with regard to” English-learning programs. 480
F. Supp. 2d, at 1160. It also indicated that it expected the
orders would soon prove unnecessary as the State had taken
“step[s] towards” developing an “appropriate” funding mech
anism, App. to Pet. for Cert. in No. 08–289, at 125—a view
it later reaffirmed, Order in No. CV–92–596–TUC–RCC (D.
Ariz., Oct. 10, 2007), Dkt. No. 703, p. 4. The Court of Ap
peals, too, in its opinion acknowledged that the dispute “may
finally be nearing resolution.” 516 F. 3d, at 1180.
But, at the same time, the District Court noted that “many
of the new standards are still evolving.” 480 F. Supp. 2d,
at 1160. It found that “it would be premature to make an
assessment of some of these changes.” Ibid. And it held
that, all in all, the changes were not yet sufficient to warrant
relief. Id., at 1167. The Court of Appeals upheld the find
ings and conclusions as within the discretionary powers of
the District Court, adding that the evidence showing that
significantly more students were completing the program
was “not reliable.” 516 F. 3d, at 1157. What “further fac
tual findings,” ante, at 461, are needed? As I have ex
plained, the District Court was not obligated to relitigate the
case. See supra, at 492–493. And it did find that “the
State has changed its primary model” of English-learning
instruction “ to structured English immersion. ” 480 F.

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
500 HORNE v. FLORES
Breyer, J., dissenting
Supp. 2d, at 1161. How can the majority conclude that “fur
ther factual findings” are necessary?
Perhaps the majority does not mean to suggest that the
lower courts failed properly to examine these changes in
teaching methods. Perhaps it means to express its belief
that the lower courts reached the wrong conclusion. After
all, the Court refers to a “documented, academic support for
the view that” structured English immersion “is significantly
more effective than bilingual education.” Ante, at 460–461.
It is difficult to see how the majority can substitute its
judgment for the District Court’s judgment on this question,
however, for that judgment includes a host of subsidiary
fact-related determinations that warrant deference. Rail
way Employees, 364 U. S., at 647–648 (“Where there is . . .
a balance of imponderables there must be wide discretion
in the District Court”). And, despite considerable evidence
showing improvement, there was also considerable evidence
the other way, evidence that supported the District Court’s
view that it would be “premature” to set aside the judgment
of violation.
The methodological change was introduced in Arizona in
late 2000, and in Nogales it was a work in progress, “[t]o one
degree or another,” as of June 2005. Tr. 10 (Jan. 12, 2007);
ante, at 459–461. As of 2006, the State’s newest structured
English immersion models had not yet taken effect. Tr. 138
(Jan. 17, 2007) (“We’re getting ready to hopefully put down
some models for districts to choose from”). The State had
adopted its new assessment test only the previous year.
App. 164–165. The testimony about the extent to which
Nogales had adopted the new teaching system was unclear
and conflicting. Compare Tr. 96 (Jan. 9, 2007) with id., at 10
(Jan. 12, 2007). And, most importantly, there was evidence
that the optimistic improvement in the number of students
completing the English-learning program was considerably
overstated. See id., at 37 (Jan. 18, 2007) (stating that the
assessment test used in 2005 and 2006, when dramatic im

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
501 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
provements had been reported, was significantly less “rig
orous” and consequently had been replaced). The State’s
own witnesses were unable firmly to conclude that the new
system had so far produced significantly improved results.
Id., at 112–113 (Jan. 11, 2007) (stating that “at some point”
it would be possible to tell how quickly the new system leads
to English proficiency (emphasis added)).
Faced with this conflicting evidence, the District Court
concluded that it was “premature” to dissolve the decree on
the basis of changes in teaching (and related standards and
assessment) methodology. Given the underlying factual dis
putes (about, e. g., the reliability of the testing method), how
can this Court now hold that the District Court and the
appellate court that affirmed its conclusions were legally
wrong?
B
The second change that the Court says the lower courts
should properly “examine” is the “enactment” of the No
Child Left Behind Act. Ante, at 461. The Court concedes,
however, that both courts did address the only argument
about that “enactment” that the petitioners made, namely,
that “compliance” with that new law automatically consti
tutes compliance with subsection (f)’s “ ‘appropriate action’ ”
requirement. Ante, at 462; see also, e. g., App. 73 (arguing
that the new law “preempts” subsection (f)). And the Court
today agrees (as do I) that the lower courts properly rejected
that argument. Ante, at 462.
Instead, the Court suggests that the lower courts wrongly
failed to take account of four other ways in which the new
Act is “probative,” namely, (1) its prompting “significant
structural and programming” changes, (2) its increases in
“federal funding,” (3) “its assessment and reporting require
ments,” and (4) its “shift in federal education policy.” Ante,
at 463–464. In fact, the lower courts did take account of the
changes in structure, programming, and funding (including
federal funding) relevant to the English-learning program in

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
502 HORNE v. FLORES
Breyer, J., dissenting
Nogales and elsewhere in the State. See Part III–A, supra;
Parts III–C and III–D, infra. But, I agree with the Court
that the District Court did not explicitly relate its dis
cussion to the new Act nor did it take account of what the
majority calls a “shift in federal education policy.” Ante,
at 464.
The District Court failed to do what the Court now de
mands for one simple reason. No one (with the possible ex
ception of the legislators, who hint at the matter in their
reply brief filed in this Court) has ever argued that the Dis
trict Court should take account of any such “change.” But
see ante, at 463, and n. 12.
As I have explained, see supra, at 490–491, it is well estab
lished that a district court rarely commits legal error when
it fails to take account of a “change” that no one called to its
attention or fails to reply to an argument that no one made.
See, e. g., Dowell, 498 U. S., at 249 (party seeking relief from
judgment must make a “sufficient showing”). A district
court must construe fairly the arguments made to it; but it
is not required to conjure up questions never squarely pre
sented. That the Court of Appeals referred to an argument
resembling the Court’s new assertion does not change the
underlying legal fact. The District Court committed no
legal error in failing to consider it. The Court of Appeals
could properly reach the same conclusion. And the Govern
ment, referring to the argument here, does not ask for rever
sal or remand on that, or on any other, basis.
That is not surprising, since the lower courts have consist
ently and explicitly held that “flexibility cannot be used to
relieve the moving party of its burden to establish that” dis
solution is warranted. Thompson v. United States Dept. of
Housing and Urban Development, 220 F. 3d 241, 248 (CA4
2000); Marshall v. Board of Ed., Bergenfield, N. J., 575 F. 2d
417, 423–424 (CA3 1978). There is no basis for treating
these cases in this respect as somehow exceptional, particu
larly since publicly available documents indicate that, in any

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
503 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
event, Nogales is not “ ‘reaching its own goals under Title
III’ ” of the Act. Ante, at 463, n. 12; FY 2008 Statewide
District/Charter Determinations for the Title III AMAOs
(rev. Oct. 2008), http://www.azed.gov/oelas/downloads/
T3Determinations2008.pdf (showing that Nogales failed to
meet the Act’s “Annual Measurable Achievement Objec
tives, ” which track the progress of English-learning
students).
C
The third “change” that the Court suggests the lower
courts failed properly to “examine” consists of “[s]tructural
and management reforms in Nogales. ” Ante, at 465.
Again, the Court cannot mean that the lower courts failed
to “examine” these arguments, for the District Court heard
extensive evidence on the matter. The Court itself refers
to some (but only some) of the evidence introduced on this
point, namely, the testimony of Kelt Cooper, the former No
gales district superintendent, who said that his administra
tive policies had “ ‘ameliorated or eliminated many of the
most glaring inadequacies’ ” in Nogales’ program. Ante, at
466. The Court also refers to the District Court’s and Court
of Appeals’ conclusions about the matter. 480 F. Supp. 2d,
at 1160 (“The success or failure of the children of ” Nogales
“should not depend on” “one person”); 516 F. 3d, at 1156–1157
(recognizing that Nogales had achieved “reforms with lim
ited resources” but also pointing to evidence showing that
“there are still significant resource constraints,” and affirm
ing the District Court’s similar conclusion).
Rather, the Court claims that the lower courts improperly
“discounted” this evidence. Ante, at 466. But what does
the Court mean by “discount”? It cannot mean that the
lower courts failed to take account of the possibility that
these changes “might have brought Nogales[’]” program into
“compliance” with subsection (f). After all, that is precisely
what the petitioners below argued. Intervenor-Defendants’
Closing Argument Memorandum in No. CV–92–596–TUC–

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
504 HORNE v. FLORES
Breyer, J., dissenting
RCC (D. Ariz., Mar. 13, 2007), Dkt. No. 631, pp. 7–18. In
stead the Court must mean that the lower courts should have
given significantly more weight to the changes, i. e., the
Court disagrees with the lower courts’ conclusion about the
likely effect these changes will have on the success of No
gales’ English-learning programs (hence, on the need for the
judgment and orders to remain in effect).
It is difficult to understand the legal basis for the Court’s
disagreement about this fact-related matter. The evidence
before the District Court was mixed. It consisted of some
evidence showing administrative reform and managerial im
provement in Nogales. Ante, at 465–466. At the same
time other evidence, to which the Court does not refer,
shows that these reforms did not come close to curing the
problem. The record shows, for example, that the gradua
tion rate in 2005 for English-learning students (59%) was
significantly below the average for all students (75%). App.
195. It shows poor performance by English-learning stu
dents, compared with English-speaking students, on Arizo
na’s content-based standardized tests. See Appendix A,
infra. This was particularly true at Nogales’ sole high
school—which Arizona ranked 575th out of its 629 schools
on an educational department survey, 516 F. 3d, at 1159—
where only 28% of English-learning students passed those
standardized tests. Ibid.
The record also contains testimony from Guillermo Za
mudio, who in 2005 succeeded Cooper as Nogales’ superin
tendent, and who described numerous relevant “resource
related” deficiencies: Lack of funding meant that Nogales had
to rely upon long-term substitute and “emergency certified”
teachers without necessary training and experience. Tr. 45
(Jan. 18, 2007). Nogales needed additional funding to hire
trained teachers’ aides—a “strong component” of its
English-learning program, id., at 47. And Nogales’ funding
needs forced it to pay a starting base salary to its teachers
about 14% below the state average, making it difficult to re

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
505 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
cruit qualified teachers. Id., at 48. Finally, Zamudio said
that Nogales’ lack of resources would likely lead in the near
future to the cancellation of certain programs, including a
remedial reading program, id., at 56, and would prevent the
school district from providing appropriate class sizes and tu
toring, which he characterized as “essential and necessary
for us to be able to have our students learn English,” id.,
at 75–78.
The District Court, faced with all this evidence, found the
management and structural “change” insufficient to warrant
dissolution of its decree. How can the Court say that this
conclusion is unreasonable? What is the legal basis for con
cluding that the District Court acted beyond the scope of its
lawful authority?
In fact, the Court does not even try to claim that the Dis
trict Court’s conclusion is unreasonable. Rather, it enigmat
ically says that the District Court made “insufficient factual
findings” to support the conclusion that an ongoing violation
of law exists. Ante, at 468. By “insufficient,” the Court
does not mean nonexistent. See 480 F. Supp. 2d, at 1163–
1164. Nor can it mean that the District Court’s findings
were skimpy or unreasonable. That court simply drew con
clusions on the basis of evidence it acknowledged was mixed.
Id., at 1160–1161. What is wrong with those findings, par
ticularly if viewed with appropriate deference?
At one point the Court says that there “are many possible
causes” of Nogales’ difficulties and that the lower courts
failed to “take into account other variables that may explain”
the ongoing deficiencies. Ante, at 467, 468, n. 20. But to
find a flaw here is to claim that the plaintiffs have failed to
negate the possibility that these other causes, not the State’s
resource failures, explain Nogales’ poor performance. To
say this is to ignore well-established law that accords defer
ence to the District Court’s fact-related judgments. See
supra, at 493–494. The Court’s statements reflect the ac
knowledgment that the evidence below was mixed. Given

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
506 HORNE v. FLORES
Breyer, J., dissenting
that acknowledgment, it is clear that the District Court did
not abuse its discretion in finding that the petitioners had
not shown sufficient “changed circumstances.” And it was
the petitioners’ job, as the moving party, to show that com
pliance with federal law has been achieved. Where “other
variables” make it difficult to conclude that a present viola
tion does or does not exist, what error does the District
Court commit if it concludes that the moving party has failed
to satisfy that burden?
D
The fourth “change” that the Court suggests the lower
courts did not properly “examine” consists of an “overall in
crease in the education funding available in Nogales.” Ante,
at 468. Again, the Court is wrong to suggest that the Dis
trict Court failed fully to examine the matter, for despite
the Court’s assertions to the contrary, it made a number of
“up-to-date factual findings,” ante, at 469, on the matter, see
480 F. Supp. 2d, at 1161–1164. Those findings reflect that
the State had developed an educational plan that raised the
“base level amount” for the typical student from $3,139 per
pupil in 2000 to $3,570 in 2006 (in constant 2006 dollars), ante,
at 468–469, n. 21; and that plan increased the additional (i. e.,
“weighted”) amount that would be available per English
learning student from $182 to $349 (in 2006 dollars). The
State contended that this new plan, with its explanation of
how the money needed would be forthcoming from federal,
as well as from state, sources, met subsection (f)’s require
ment for “appropriate action” (as related to “resources”) and
the District Court’s own insistence upon a mechanism that
rationally funded those resources. See Appendix B, infra.
Once again the Court’s “factual-finding” criticism seems, in
context, to indicate its disagreement with the lower courts’
resolution of this argument. That is to say, the Court seems
to disagree with the District Court’s conclusion that, even
with the new funding, the State failed to show that adequate

557US2 Unit: $U81 [07-07-14 13:15:03] PAGES PGT: OPIN
507 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
resources for English-learning programs would likely be
forthcoming; hence the new plan was not “rationally related”
to the underlying resource problem.
The record, however, adequately supports the District
Court’s conclusion. For one thing, the funding plan demon
strates that, in 2006, 69% of the available funding was tar
geted at “base level” education, see Appendix B, infra, i. e.,
it was funding available to provide students with basic edu
cational services like instruction in mathematics, science, and
so forth. See Tr. 110 (Jan. 12, 2007). The District Court
found that this funding likely would not become available for
English-learning programs.
How is that conclusion unreasonable? If these funds are
provided for the provision of only basic services, how can the
majority now decide that a school district—particularly a
poor school district like Nogales—would be able to cover
the additional expenses associated with English-learning
education while simultaneously managing to provide for its
students’ basic educational needs? Indeed, the idea is par
ticularly impractical when applied to a district like Nogales,
which has a high percentage of students who need extra re
sources. See 516 F. 3d, at 1145 (approximately 90% of
Nogales’ students were, or had been, enrolled in the English
learning program in 2006). Where the vast majority of
students in a district are those who “need extra help” which
“costs extra money,” it is difficult to imagine where one could
find an untapped stream of funding that could cover those
additional costs.
For another thing, the petitioners’ witnesses conceded that
the State had not yet determined the likely costs to school
districts of teaching English learners using the structured
English immersion method. See, e. g., Tr. 199–200 (Jan. 17,
2007). The legislators reported that the State had recently
asked a task force to “determine” the extra costs associated
with implementing the structured English immersion model.
Speaker’s Opening Appellate Brief in No. 07–15603 etc.

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
508 HORNE v. FLORES
Breyer, J., dissenting
(CA9), p. 31. But that task force had not yet concluded its
work.
Further, the District Court doubted that the federal por
tion of the funding identified by the petitioners would be
available for English-learning programs. It characterized
certain federal grant money, included in the petitioners’ cal
culus of available funds, as providing only “short-term” as
sistance, 480 F. Supp. 2d, at 1161. And testimony at the
evidentiary hearing indicated that some of the funds identi
fied by the petitioners might not in fact be available to No
gales’ schools. See Tr. 59–61 (Jan. 10, 2007). It also noted
that certain funds were restricted, meaning that no particu
lar English-learning child could benefit from them for more
than two years—despite the fact that English-learning stu
dents in Nogales on average spend four to five years in that
program. 480 F. Supp. 2d, at 1163–1164 (Nogales will have
to “dilute” the funds provided to cover students who remain
English learners for more than two years).
Finally, the court pointed to federal law, which imposes a
restriction forbidding the State to use a large portion of
(what the State’s plan considered to be) available funds in
the manner the State proposed, i. e., to “supplant,” or
substitute for, the funds the State would otherwise have
spent on the program. Id., at 1162; see also 20 U. S. C.
§§ 6314(a)(2)(B), 6315(b)(3), 6613(f), 6825(g). The District
Court concluded that the State’s funding plan was in large
part unworkable in light of this restriction. In reaching this
conclusion, the District Court relied in part upon the testi
mony of Thomas Fagan, a former United States Department
of Education employee and an “expert” on this type of fed
eral funding. Fagan testified that Arizona’s plan was a
“ ‘blatant violation’ ” of the relevant laws, which could result
in a loss to the State of over $600 million in federal funds—
including those federal funds the State’s plan would provide
for English learners. 480 F. Supp. 2d, at 1163.

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
509 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
The Court says that the analysis I have just described, and
in which the court engaged, amounts to “clear legal error.”
Ante, at 469. What error? Where is the error? The Court
does say earlier in its opinion that the lower courts “should
not” have “disregarded” the relevant federal (i. e., No Child
Left Behind Act) funds “just because they are not state
funds.” Ante, at 463. But the District Court did not disre
gard those funds “just because they are not state funds.”
Nor did it “foreclos[e] the possibility that petitioners could”
show entitlement to relief by pointing to “an overall increase
in education funding.” Ante, at 469. Rather, the District
Court treated those increased funds as potentially unavail
able, primarily because their use as planned would violate
federal law and would thereby threaten the State with total
loss of the stream of federal funding it planned to use. It
concluded that the State’s plan amounted to “ ‘a blatant viola
tion’ ” of federal law, and remarked that “the potential loss
of federal funds is substantial.” 480 F. Supp. 2d, at 1163.
Is there a better reason for “disregard[ing]” those funds?
The Court may have other “errors” in mind as well. It
does say, earlier in its opinion, that some believe that “in
creased funding alone does not improve student achieve
ment,” ante, at 464 (emphasis added), and it refers to nine
studies that suggest that increased funding does not always
help, see ante, at 464–465, 467, nn. 17–19; see also Brief for
Educational-Policy Scholars as Amici Curiae 7–11 (discuss
ing such scholarship). I do not know what this has to do
with the matter. But if it is relevant to today’s decision, the
Court should also refer to the many studies that cast doubt
upon the results of the studies it cites. See, e. g., H. Ladd &
J. Hansen, Making Money Matter: Financing America’s
Schools 140–147 (1999); Hess, Understanding Achievement
(and Other) Changes Under Chicago School Reform, 21 Educ.
Eval. & Pol’y Analysis 67, 78 (1999); Card & Payne, School
Finance Reform, The Distribution of School Spending, and

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
510 HORNE v. FLORES
Breyer, J., dissenting
the Distribution of Student Test Scores, 83 J. Pub. Econ. 49,
67 (2002); see also Rebell, Poverty, “Meaningful” Educational
Opportunity, and the Necessary Role of the Courts, 85
N. C. L. Rev. 1467, 1480 (2007); R. Greenwald, L. Hedges, &
R. Laine, The Effect of School Resources on Student
Achievement, 66 Rev. Educ. Res. 361, 362 (1996).
Regardless, the relation of a funding plan to improved per
formance is not an issue for this Court to decide through
footnote references to the writings of one side of a complex
expert debate. The question here is whether the State has
shown that its new funding program amounts to a “change”
that satisfies subsection (f)’s requirement. The District
Court found it did not. Nothing this Court says casts doubt
on the legal validity of that conclusion.
IV
The Court’s remaining criticisms are not well founded.
The Court, for example, criticizes the Court of Appeals for
having referred to the “circumstances” that “warrant Rule
60(b)(5) relief as ‘likely rare,’ ” for having said the petition
ers would have to “sweep away” the District Court’s “fund
ing determination” in order to prevail, for having spoken of
the “landscape” as not being “so radically changed as to jus
tify relief from judgment without compliance,” and for hav
ing somewhat diminished the “close[ness]” of its review for
“federalism concerns” because the State and its board of edu
cation “wish the injunction to remain in place.” Ante, at
451–452 (first, second, and fourth emphases added; internal
quotation marks omitted).
The Court, however, does not explain the context in which
the Court of Appeals’ statements appeared. That court
used its first phrase (“likely rare”) to refer to the particular
kind of modification that the State sought, namely, complete
relief from the original judgment, even if the judgment’s ob
jective was not yet fully achieved. 516 F. 3d, at 1167;

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
511 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
cf. Moore § 60.47[2][c]. As far as I know it is indeed “rare”
that “a prior judgment is so undermined by later circum
stances as to render its continued enforcement inequitable”
even though compliance with the judgment’s legal determi
nation has not occurred. 516 F. 3d, at 1167. At least, the
Court does not point to other instances that make it common.
Uses of the words “sweeping” and “radica[l] change” in con
text refer to the deference owed to the District Court’s 2000
legal determination. See id., at 1168 (describing the 2000
order’s “basic determination” that English-learning “pro
grams require substantial state funding in addition to that
spent on basic educational programming”). If there is an
error (which I doubt, see supra, at 492–494), the error is one
of tone, not of law.
Nor do I see any legal error that could have made a differ
ence when the Court of Appeals said it should downplay the
importance of federalism concerns because some elements of
Arizona’s state government support the judgment. I do not
know the legal basis for the majority’s reference to this re
calibration of judicial distance as “flatly incorrect,” but, if it
is wrong, I still do not see how recalibrating the recalibration
could matter.
In sum, the majority’s decision to set aside the lower court
decisions rests upon (1) a mistaken effort to drive a wedge
between (a) review of funding plan changes and (b) review
of changes that would bring the State into compliance with
federal law, Part I, supra; (2) a misguided attempt to show
that the lower courts applied the wrong legal standards,
Part II, supra; (3) a mistaken belief that the lower courts
made four specific fact-based errors, Part III, supra; and
(4) a handful of minor criticisms, Part IV, supra and this
page. By tracing each of these criticisms to its source in the
record, I have tried to show that each is unjustified.
Whether taken separately or together, they cannot warrant
setting aside the Court of Appeals’ decision.

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
512 HORNE v. FLORES
Breyer, J., dissenting
V
As a totally separate matter, the Court says it is “unclear”
whether the District Court improperly ordered statewide in
junctive relief instead of confining that relief to Nogales.
And it orders the District Court to vacate the injunction
“insofar as it extends beyond Nogales” unless the court finds
that “Arizona is violating” subsection (f) “on a statewide
basis.” Ante, at 472.
What is the legal support for this part of the majority’s
opinion? Prior to the appearance of these cases in this
Court, no one asked for that modification. Nothing in the
law, as far as I know, makes the relief somehow clearly erro
neous. Indeed, as the majority recognizes, the reason that
the injunction runs statewide is that the State of Arizona,
the defendant in the litigation, asked the Court to enter that
relief. The State pointed in support to a state constitutional
provision requiring educational uniformity. See ante, at
471. There is no indication that anyone disputed whether
the injunction should have statewide scope. A statewide
program harmed Nogales’ students, App. 13–14, ¶¶ 40, 42;
and the State wanted statewide relief. What in the law
makes this relief erroneous?
The majority says that the District Court must consider
this matter because the “[p]etitioners made it clear at oral
argument that they wish to argue that the extension of the
remedy to districts other than Nogales should be vacated.”
Ante, at 470, n. 23. I find the matter less clear. I would
direct the reader to the oral argument transcript, which
reads in part:
“MR. STARR: . . . What was entered here in this
order, which makes it so extraordinary, is that the entire
State funding mechanism has been interfered with by
the order. This case started out in Nogales. . . .
“JUSTICE SCALIA: Well, I—I agree with that.
I think it was a vast mistake to extend a lawsuit that

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
513 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
applied only to Nogales to the whole State, but the State
attorney general wanted that done.
“MR. STARR: But we should be able now to—
“JUSTICE SCALIA: But that’s—that’s water over
the dam. That’s not what this suit is about now.”
Tr. of Oral Arg. 26.
Regardless, what is the legal basis for the Court’s order tell
ing the District Court it must reconsider the matter? There
is no clear error. No one has asked the District Court for
modification. And the scope of relief is primarily a question
for the District Court. Swann v. Charlotte-Mecklenburg
Bd. of Ed., 402 U. S. 1, 15 (1971) (“Once a right and a viola
tion have been shown, the scope of a district court’s equitable
powers to remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies”).
VI
As the length of the opinions indicates, these cases require
us to read a highly detailed record. Members of this Court
have reached different conclusions about what that record
says. But there is more to the case than that.
First, even if one sees these cases as simply a technical
record-reading case, the disagreement among us shows why
this Court should ordinarily hesitate to hear cases that re
quire us to do no more than to review a lengthy record sim
ply to determine whether a lower court’s fact-based determi
nations are correct. Cf. Universal Camera, 340 U. S., at 488
(“[A] court may [not] displace” a “choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it
de novo”); Graver Tank & Mfg. Co. v. Linde Air Products
Co., 336 U. S. 271, 275 (1949) (noting the well-settled rule that
this Court will not “undertake to review concurrent findings
of fact by two courts below in the absence of a very obvious
and exceptional showing of error”). In such cases, appellate

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
514 HORNE v. FLORES
Breyer, J., dissenting
courts are closer to the fray, better able to reach conclusions
that are true to the record, and are more likely to treat trial
court determinations fairly and with respect—as is clearly
so here.
Second, insofar as the Court goes beyond the technical
record-based aspects of these cases and applies a new review
framework, it risks problems in future cases. The frame
work it applies is incomplete and lacks clear legal support
or explanation. And it will be difficult for lower courts to
understand and to apply that framework, particularly if it
rests on a distinction between “institutional reform litiga
tion” and other forms of litigation. Does the Court mean to
say, for example, that courts must, on their own, go beyond
a party’s own demands and relitigate an underlying legal vio
lation whenever that party asks for modification of an injunc
tion? How could such a rule work in practice? See supra,
at 492–494. Does the Court mean to suggest that there are
other special, strict prodefendant rules that govern review
of district court decisions in “institutional reform cases”?
What precisely are those rules? And when is a case an “in
stitutional reform” case? After all, as I have tried to show,
see supra, at 489–490, the cases before us cannot easily be fit
ted onto the Court’s Procrustean “institutional reform” bed.
Third, the Court may mean its opinion to express an atti
tude, cautioning judges to take care when the enforcement
of federal statutes will impose significant financial burdens
upon States. An attitude, however, is not a rule of law.
Nor does any such attitude point toward vacating the Court
of Appeals’ opinion here. The record makes clear that the
District Court did take care. See supra, at 486. And the
Court of Appeals too proceeded with care, producing a de
tailed opinion that is both true to the record and fair to the
lower court and to the parties’ submissions as well. I do not
see how this Court can now require lower court judges to
take yet greater care, to proceed with even greater caution,

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
515 Cite as: 557 U. S. 433 (2009)
Breyer, J., dissenting
while at the same time expecting those courts to enforce the
statute as Congress intended.
Finally, we cannot and should not fail to acknowledge the
underlying subject matter of this proceeding. These cases
concern the rights of Spanish-speaking students, attending
public school near the Mexican border, to learn English in
order to live their lives in a country where English is the
predominant language. In a Nation where nearly 47 million
people (18% of the population) speak a language other than
English at home, U. S. Dept. of Commerce, Economics and
Statistics Admin., Census Bureau, Census 2000 Brief: Lan
guage Use and English-Speaking Ability 2 (Oct. 2003), it is
important to ensure that those children, without losing the
cultural heritage embodied in the language of their birth,
nonetheless receive the English-language tools they need to
participate in a society where that second language “serves
as the fundamental medium of social interaction” and demo
cratic participation. Rodrı´guez, Language and Participa
tion, 94 Cal. L. Rev. 687, 693 (2006). In that way linguistic
diversity can complement and support, rather than under
mine, our democratic institutions. Id., at 688.
At least, that is what Congress decided when it set federal
standards that state officials must meet. In doing so, with
out denying the importance of the role of state and local
officials, it also created a role for federal judges, including
judges who must see that the States comply with those fed
eral standards. Unfortunately, for reasons I have set forth,
see Part II, supra, the Court’s opinion will make it more
difficult for federal courts to enforce those federal standards.
Three decades ago, Congress put this statutory provision in
place to ensure that our Nation’s school systems will help
non-English-speaking schoolchildren overcome the language
barriers that might hinder their participation in our coun
try’s schools, workplaces, and the institutions of everyday
politics and government, i. e., the “arenas through which

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
516 HORNE v. FLORES
Breyer, J., dissenting
most citizens live their daily lives.” Rodrı´guez, supra, at
694. I fear that the Court’s decision will increase the diffi
culty of overcoming barriers that threaten to divide us.
For the reasons set forth in this opinion, I respectfully
dissent.

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
517 Cite as: 557 U. S. 433 (2009)
Appendix A to opinion of Breyer, J.
APPENDIXES
A
PERFORMANCE ON CONTENT-BASED ASSESSMENT
TESTS—SPRING 2006 *
MATH
GRADE ELL STUDENTS
PASSING EXAM
NON-ELL AND
RECLASSIFIED STUDENTS
PASSING EXAM
3 54% 94%
4 44% 91%
5 53% 88%
6 23% 82%
7 40% 82%
8 28% 70%
READING
GRADE ELL STUDENTS
PASSING EXAM
NON-ELL AND
RECLASSIFIED STUDENTS
PASSING EXAM
3 40% 92%
4 19% 83%
5 22% 81%
6 14% 76%
7 13% 74%
8 31% 73%
WRITING
GRADE ELL STUDENTS
PASSING EXAM
NON-ELL AND
RECLASSIFIED STUDENTS
PASSING EXAM
3 52% 82%
4 52% 87%
5 34% 80%
6 71% 97%
7 66% 98%
8 49% 94%
*App. to Pet. for Cert. in No. 08–289, p. 311.

557US2 Unit: $U81 [07-07-14 13:15:04] PAGES PGT: OPIN
518 HORNE v. FLORES
Appendix B to opinion of Breyer, J.
B
FUNDING AVAILABLE TO NOGALES UNIFIED
SCHOOL DISTRICT, PER STUDENT *
TYPE 1999–
2000
2000–
2001
2001–
2002
2002–
2003
2003–
2004
2004–
2005
2005–
2006
2006–
2007
Base level $2,592 $2,618 $2,721 $2,788 $2,858 $2,929 $3,039 $3,173
ELL funds $156 $157 $163 $321 $329 $337 $349 $365
Other
state ELL
funds
$0 $0 $0 $126 $83 $64 $0 $74
Federal
Title I
funds
$439 $448 $467 $449 $487 $638 $603 $597
Federal
Title II
funds
$58 $63 $74 $101 $109 $91 $92 $87
Federal
Title III
(ELL)
funds
$0 $0 $0 $67 $89 $114 $118 $121
State and
federal
grants
$58 $56 $59 $47 $207 $214 $205 $109
TOTAL 1 $3,302 $3,342 $3,484 $3,899 $4,162 $4,387 $4,406 $4,605 2
Constant
dollars
(2006) 3
$3,866 $3,804 $3,904 $4,272 $4,442 $4,529 $4,406 $4,477
Total ELL
funds $156 $157 $163 $514 $501 $515 $467 $639
*516 F. 3d 1140, 1159–1160 (CA9 2008); App. to Pet. for Cert. in
No. 08–289, pp. 42–43.
1 Nogales received less per-pupil funding in 2006 than the average pro
vided by every State in the Nation. New Jersey provided the highest, at
$14,954; Arizona the third-lowest, at $6,515. 2008 Digest.
2 As of 2007, county override funds provided an additional $43.43 per
student. See 516 F. 3d, at 1158.
3 Constant dollars based on the Consumer Price Index.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
OCTOBER TERM, 2008 519
Syllabus
CUOMO, ATTORNEY GENERAL OF NEW YORK v.
CLEARING HOUSE ASSOCIATION, L. L. C., et al.
certiorari to the united states court of appeals for
the second circuit
No. 08–453. Argued April 28, 2009—Decided June 29, 2009
To determine whether various national banks had violated New York’s
fair-lending laws, the State’s Attorney General, whose successor in office
is the petitioner here, sent them letters in 2005 requesting “in lieu of
subpoena” that they provide certain nonpublic information about their
lending practices. Respondents, the federal Office of the Comptroller
of the Currency (Comptroller or OCC) and a banking trade group,
brought suit to enjoin the information request, claiming that the Comp
troller’s regulation promulgated under the National Bank Act (NBA)
prohibits that form of state law enforcement against national banks.
The District Court entered an injunction prohibiting the Attorney Gen
eral from enforcing state fair-lending laws through demands for records
or judicial proceedings. The Second Circuit affirmed.
Held: The Comptroller’s regulation purporting to pre-empt state law en
forcement is not a reasonable interpretation of the NBA. Pp. 524–536.
(a) Evidence from the time of the NBA’s enactment, this Court’s
cases, and application of normal construction principles make clear
that the NBA does not prohibit ordinary enforcement of state law.
Pp. 524–531.
(i) The NBA provides: “No national bank shall be subject to any
visitorial powers except as authorized by Federal law, vested in the
courts . . . , or . . . directed by Congress.” 12 U. S. C. § 484(a). Among
other things, the Comptroller’s regulation implementing § 484(a) forbids
States to “exercise visitorial powers with respect to national banks, such
as conducting examinations, inspecting or requiring the production of
books or records,” or, as here pertinent, “prosecuting enforcement ac
tions” “except in limited circumstances authorized by federal law.” 12
CFR § 7.4000(a)(1). There is some ambiguity in the NBA’s term “visito
rial powers,” and the Comptroller can give authoritative meaning to the
term within the bounds of that uncertainty. Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837. However, the
presence of some uncertainty does not expand Chevron deference to
cover virtually any interpretation of the NBA. Pp. 524–525.
(ii) When the NBA was enacted in 1864, scholars and courts under
stood “visitation” to refer to the sovereign’s supervisory power over the

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
520 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Syllabus
manner in which corporations conducted business, see, e. g., Guthrie v.
Harkness, 199 U. S. 148, 157. That power allowed the States to use
the prerogative writs to exercise control if a corporation abused its
lawful power, acted adversely to the public, or created a nuisance.
Pp. 525–526.
(iii) This Court’s consistent teaching, both before and after the
NBA’s enactment, is that a sovereign’s “visitorial powers” and its power
to enforce the law are two different things. See, e. g., Trustees of Dart
mouth College v. Woodward, 4 Wheat. 518, 676, 681; Guthrie, supra, at
159, 157; First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 660.
Watters v. Wachovia Bank, N. A., 550 U. S. 1, 21, distinguished. And
contrary to the Comptroller’s regulation, the NBA pre-empts only the
former. Pp. 526–529.
(iv) The regulation’s consequences also cast its validity into doubt:
Even the OCC acknowledges that the NBA leaves in place some state
substantive laws affecting banks, yet the Comptroller’s rule says that
the State may not enforce its valid, non-pre-empted laws against na
tional banks. “To demonstrate the binding quality of a statute but
deny the power of enforcement involves a fallacy made apparent by the
mere statement of the proposition, for such power is essentially inherent
in the very conception of law.” St. Louis, supra, at 660. In contrast,
channeling state attorneys general into judicial law-enforcement pro
ceedings (rather than allowing them to exercise “visitorial” oversight)
would preserve a regime of exclusive administrative oversight by the
Comptroller while honoring in fact rather than merely in theory Con
gress’s decision not to pre-empt substantive state law. This reading is
also suggested by § 484(a)’s otherwise inexplicable reservation of state
powers “vested in the courts of justice.” And on a pragmatic level, the
difference between visitation and law enforcement is clear: If a State
chooses to pursue enforcement of its laws in court, its targets are pro
tected by discovery and procedural rules. Pp. 529–531.
(b) The Comptroller’s interpretation of the regulation demonstrates
its own flaw: The Comptroller is forced to limit the regulation’s sweep
in areas such as contract enforcement and debt collection, but those
exceptions rest upon neither the regulation’s nor the NBA’s text.
Pp. 531–533.
(c) The dissent’s objections are addressed and rejected. Pp. 533–535.
(d) Under the foregoing principles, the Comptroller reasonably inter
preted the NBA’s “visitorial powers” term to include “conducting exami
nations [and] inspecting or requiring the production of books or records
of national banks,” when the State conducts those activities as supervi
sor of corporations. When, however, a state attorney general brings
suit to enforce state law against a national bank, he is not acting in the
role of sovereign-as-supervisor, but rather sovereign-as-law-enforcer.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
521 Cite as: 557 U. S. 519 (2009)
Syllabus
Because such a lawsuit is not an exercise of “visitorial powers,” the
Comptroller erred by extending that term to include “prosecuting en
forcement actions” in state courts. In this case, the Attorney General’s
threatened action was not the bringing of a civil suit, or the obtaining
of a judicial search warrant based on probable cause, but the issuance
of subpoena on his own authority if his request for information was not
voluntarily honored. That is not the exercise of the law-enforcement
power “vested in the courts of justice,” which the NBA exempts from
the ban on the exercise of supervisory power. Accordingly, the in
junction below is affirmed as applied to the Attorney General’s threat
ened issuance of executive subpoenas, but vacated insofar as it prohib
its the Attorney General from bringing judicial enforcement actions.
Pp. 535–536.
510 F. 3d 105, affirmed in part and reversed in part.
Scalia, J., delivered the opinion of the Court, in which Stevens, Sou
ter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion
concurring in part and dissenting in part, in which Roberts, C. J., and
Kennedy and Alito, JJ., joined, post, p. 537.
Barbara D. Underwood, Solicitor General of New York,
argued the cause for petitioner. With her on the briefs were
Andrew M. Cuomo, Attorney General, pro se, Michelle Aro
nowitz, Deputy Solicitor General, and Richard Dearing, As
sistant Solicitor General.
Deputy Solicitor General Stewart argued the cause for the
federal respondent. With him on the brief were Solicitor
General Kagan, Matthew D. Roberts, Julie L. Williams,
Daniel P. Stipano, Horace G. Sneed, and Douglas B. Jordan.
Seth P. Waxman argued the cause for respondent Clearing
House Association, L. L. C. With him on the brief were Ed
ward C. DuMont, Catherine M. A. Carroll, Christopher R.
Lipsett, Noah A. Levine, Anne K. Small, H. Rodgin Cohen,
Robinson B. Lacy, and Michael M. Wiseman.*
*Briefs of amici curiae urging reversal were filed for Members of Con
gress by Linda Singer and David Reiser; for the State of North Carolina
et al. by Roy Cooper, Attorney General of North Carolina, Christopher G.
Browning, Jr., Solicitor General, Gary R. Govert, Special Deputy Attorney
General, and Philip A. Lehman, Assistant Attorney General, and by the
Attorneys General and other officials for their respective jurisdictions as
follows: Troy King, Attorney General of Alabama, Richard A. Svobodny,

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
522 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
In 2005, Eliot Spitzer, Attorney General for the State of
New York, sent letters to several national banks making a
Acting Attorney General of Alaska, Terry Goddard, Attorney General of
Arizona, Dustin McDaniel, Attorney General of Arkansas, Edmund G.
Brown, Jr., Attorney General of California, John W. Suthers, Attorney
General of Colorado, Richard Blumenthal, Attorney General of Connecti
cut, Richard S. Gebelein, Chief Deputy Attorney General of Delaware,
Peter J. Nickles, Attorney General of the District of Columbia, Bill Mc-
Collum, Attorney General of Florida, Thurbert E. Baker, Attorney Gen
eral of Georgia, Mark J. Bennett, Attorney General of Hawaii, Lawrence
Wasden, Attorney General of Idaho, Lisa Madigan, Attorney General of
Illinois, Gregory F. Zoeller, Attorney General of Indiana, Tom Miller, At
torney General of Iowa, Steve Six, Attorney General of Kansas, Jack Con
way, Attorney General of Kentucky, James D. Caldwell, Attorney General
of Louisiana, Janet T. Mills, Attorney General of Maine, Douglas F. Gan
sler, Attorney General of Maryland, Martha Coakley, Attorney General
of Massachusetts, Michael A. Cox, Attorney General of Michigan, Lori
Swanson, Attorney General of Minnesota, Jim Hood, Attorney General of
Mississippi, Chris Koster, Attorney General of Missouri, Steve Bullock,
Attorney General of Montana, Jon Bruning, Attorney General of Ne
braska, Catherine C. Masto, Attorney General of Nevada, Kelly A. Ayotte,
Attorney General of New Hampshire, Anne Milgram, Attorney General
of New Jersey, Gary K. King, Attorney General of New Mexico, Wayne
Stenehjem, Attorney General of North Dakota, Richard Cordray, Attor
ney General of Ohio, W. A. Drew Edmondson, Attorney General of Okla
homa, John R. Kroger, Attorney General of Oregon, Thomas W. Corbett,
Jr., Attorney General of Pennsylvania, Patrick C. Lynch, Attorney Gen
eral of Rhode Island, Henry McMaster, Attorney General of South Caro
lina, Lawrence E. Long, Attorney General of South Dakota, Robert E.
Cooper, Jr., Attorney General of Tennessee, Greg Abbott, Attorney Gen
eral of Texas, Mark L. Shurtleff, Attorney General of Utah, William H.
Sorrell, Attorney General of Vermont, William C. Mims, Attorney Gen
eral of Virginia, Rob McKenna, Attorney General of Washington, Darrell
V. McGraw, Jr., Attorney General of West Virginia, J. B. Van Hollen,
Attorney General of Wisconsin, and Bruce A. Salzburg, Attorney General
of Wyoming; for the American Association of Residential Mortgage Regu
lators by Stefan L. Jouret, John Foskett, and Arthur E. Wilmarth, Jr.;
for the Center for Responsible Lending et al. by Eric Halperin, Jean
Constantine-Davis, Nina F. Simon, and Michael Schuster; for the Comp
troller of the City of New York by Lewis S. Finkelman; for the Conference

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
523 Cite as: 557 U. S. 519 (2009)
Opinion of the Court
request “in lieu of subpoena” that they provide certain non
public information about their lending practices. He sought
this information to determine whether the banks had vio
lated the State’s fair-lending laws. Spitzer’s successor in
office, Andrew Cuomo, is the petitioner here. Respond
ents, the federal Office of the Comptroller of the Currency
(Comptroller or OCC) and the Clearing House Association, a
banking trade group, brought suit to enjoin the information
request, claiming that the Comptroller’s regulation promul
gated under the National Bank Act prohibits that form of
state law enforcement against national banks.
The United States District Court for the Southern District
of New York entered an injunction in favor of respondents,
prohibiting the Attorney General from enforcing state fair
lending laws through demands for records or judicial pro
ceedings. The United States Court of Appeals for the Sec
ond Circuit affirmed. 510 F. 3d 105 (2007). We granted
certiorari. 555 U. S. 1130 (2009). The question presented
is whether the Comptroller’s regulation purporting to pre
of State Bank Supervisors by David T. Goldberg, Sean H. Donahue, and
John Gorman; for the Connecticut Fair Housing Center by Jonathan R.
Macey; for the Lawyers’ Committee for Civil Rights Under Law et al. by
Amy Howe, Kevin K. Russell, Pamela S. Karlan, Jeffrey Fisher, Joshua
Civin, John Payton, Jacqueline A. Berrien, and Debo P. Adegbile; for the
National Association of Realtors by David C. Frederick, Scott H. Ang
streich, Laurene K. Janik, and Ralph W. Holmen; for the National Gover
nors Association et al. by Richard Ruda and Thomas W. Merrill; and for
the North American Securities Administrators Association, Inc., by Keith
R. Fisher.
Briefs of amici curiae urging affirmance were filed for All Former
Comptrollers of the Currency Since 1973 by Drew S. Days III, L. Richard
Fischer, Seth M. Galanter, Howard N. Cayne, Laurence J. Hutt, and
Nancy L. Perkins; for the American Bankers Association et al. by Theo
dore B. Olson, Mark A. Perry, and Amir C. Tayrani; for the Chamber of
Commerce of the United States of America by Sri Srinivasan, Robin S.
Conrad, and Amar D. Sarwal; and for the Financial Services Roundtable
by Robert A. Long, Jr., Stuart C. Stock, Keith A. Noreika, and Hal S.
Scott.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
524 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
empt state law enforcement can be upheld as a reasonable
interpretation of the National Bank Act.
I
Section 484(a) of Title 12 U. S. C., a provision of the Na
tional Bank Act, 13 Stat. 99, reads as follows:
“No national bank shall be subject to any visitorial
powers except as authorized by Federal law, vested in
the courts of justice or such as shall be, or have been
exercised or directed by Congress or by either House
thereof or by any committee of Congress or of either
House duly authorized.”
The Comptroller, charged with administering the National
Bank Act, adopted, through notice-and-comment rulemaking,
the regulation at issue here designed to implement the statu
tory provision. Its principal provisions read as follows:
Ҥ 7.4000 Visitorial powers.
“(a) General rule. (1) Only the OCC or an authorized
representative of the OCC may exercise visitorial pow
ers with respect to national banks, except as provided
in paragraph (b) of this section. State officials may not
exercise visitorial powers with respect to national
banks, such as conducting examinations, inspecting or
requiring the production of books or records of national
banks, or prosecuting enforcement actions, except in
limited circumstances authorized by federal law. How
ever, production of a bank’s records (other than non
public OCC information under 12 CFR part 4, subpart
C) may be required under normal judicial procedures.
“(2) For purposes of this section, visitorial powers
include:
“(i) Examination of a bank;
“(ii) Inspection of a bank’s books and records;
“(iii) Regulation and supervision of activities author
ized or permitted pursuant to federal banking law; and

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
525 Cite as: 557 U. S. 519 (2009)
Opinion of the Court
“(iv) Enforcing compliance with any applicable fed
eral or state laws concerning those activities.” 12 CFR
§ 7.4000 (2009).
By its clear text, this regulation prohibits the States from
“prosecuting enforcement actions” except in “limited circum
stances authorized by federal law.”
Under the familiar Chevron framework, we defer to an
agency’s reasonable interpretation of a statute it is charged
with administering. Chevron U. S. A. Inc. v. Natural Re
sources Defense Council, Inc., 467 U. S. 837 (1984). There
is necessarily some ambiguity as to the meaning of the statu
tory term “visitorial powers,” especially since we are work
ing in an era when the prerogative writs—through which
visitorial powers were traditionally enforced—are not in
vogue. The Comptroller can give authoritative meaning to
the statute within the bounds of that uncertainty. But the
presence of some uncertainty does not expand Chevron def
erence to cover virtually any interpretation of the National
Bank Act. We can discern the outer limits of the term “visi
torial powers” even through the clouded lens of history.
They do not include, as the Comptroller’s expansive regula
tion would provide, ordinary enforcement of the law. Evi
dence from the time of the statute’s enactment, a long line
of our own cases, and application of normal principles of con
struction to the National Bank Act make that clear.
A
Historically, the sovereign’s right of visitation over corpo
rations paralleled the right of the church to supervise its
institutions and the right of the founder of a charitable insti
tution “to see that [his] property [was] rightly employed,” 1
W. Blackstone, Commentaries on the Laws of England 469
(1765). By extension of this principle, “[t]he king [was] by
law the visitor of all civil corporations,” ibid. A visitor
could inspect and control the visited institution at will.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
526 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
When the National Bank Act was enacted in 1864, “visita
tion” was accordingly understood as “[t]he act of examining
into the affairs of a corporation” by “the government itself.”
2 J. Bouvier, A Law Dictionary 790 (15th ed. 1883). Lower
courts understood “visitation” to mean “the act of a superior
or superintending officer, who visits a corporation to exam
ine into its manner of conducting business, and enforce an
observance of its laws and regulations.” First Nat. Bank of
Youngstown v. Hughes, 6 F. 737, 740 (CC ND Ohio 1881). A
State was the “visitor” of all companies incorporated in the
State, simply by virtue of the State’s role as sovereign: The
“legislature is the visitor of all corporations founded by it.”
Guthrie v. Harkness, 199 U. S. 148, 157 (1905) (internal quo
tation marks omitted).
This relationship between sovereign and corporation was
understood to allow the States to use prerogative writs—
such as mandamus and quo warranto—to exercise control
“whenever a corporation [wa]s abusing the power given it
. . . or acting adversely to the public, or creating a nuisance.”
H. Wilgus, Private Corporations, in 8 American Law and
Procedure § 157, pp. 224–225 (J. Hall ed. 1910). State visito
rial commissions were authorized to “exercise a general
supervision” over companies in the State. I. Wormser,
Private Corporations § 80, pp. 100, 101, in 4 Modern Ameri
can Law (1921).
B
Our cases have always understood “visitation” as this
right to oversee corporate affairs, quite separate from the
power to enforce the law. In the famous Dartmouth College
case, Justice Story, describing visitation of a charitable cor
poration, wrote that Dartmouth was “subject to the control
ing authority of its legal visitor, who . . . may amend and
repeal its statutes, remove its officers, correct abuses, and
generally superintend the management of [its] trusts,” and
who is “liable to no supervision or control.” Trustees of

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
527 Cite as: 557 U. S. 519 (2009)
Opinion of the Court
Dartmouth College v. Woodward, 4 Wheat. 518, 676, 681
(1819) (concurring opinion). This power of “genera[l] super
intend[ence]” stood in contrast to action by the court of chan
cery, which acted “not as itself possessing a visitorial power
. . . but as possessing a general jurisdiction . . . to redress
grievances, and frauds.” Id., at 676.1
In Guthrie, supra, we held that a shareholder acting in his
role as a private individual was not exercising a “visitorial
power” under the National Bank Act when he petitioned a
court to force the production of corporate records, id., at 159.
“[C]ontrol in the courts of justice,” we said, is not visitorial,
and we drew a contrast between the nonvisitorial act of
“su[ing] in the courts of the State” and the visitorial “super
vision of the Comptroller of the Currency,” id., at 159, 157.
In First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640
(1924), we upheld the right of the Attorney General of Mis
souri to bring suit to enforce a state anti-bank-branching law
against a national bank. We said that only the United
States may perform visitorial administrative oversight, such
as “inquir[ing] by quo warranto whether a national bank is
acting in excess of its charter powers.” Id., at 660. But if
a state statute of general applicability is not substantively
1 Justice Thomas’s opinion concurring in part and dissenting in part
(hereinafter the dissent) attempts to distinguish Dartmouth College on
the ground that the college was a charitable corporation, whose visi
tors (unlike the State as visitor of for-profit corporations) had no law
enforcement power. See post, at 543, n. 1. We doubt that was so. As
Justice Story’s opinion in Dartmouth College stated, visitors of charitable
corporations had “power to . . . correct all irregularities and abuses,”
4 Wheat., at 673, which would surely include operations in violation of
law. But whether or not visitors of charitable corporations had law
enforcement powers, the powers that they did possess demonstrate that
visitation is different from ordinary law enforcement. Indeed, if those
powers did not include the power to assure compliance with law that dem
onstration would be all the more forceful.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
528 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
pre-empted, then “the power of enforcement must rest with
the [State] and not with” the National Government, ibid.2
Our most recent decision, Watters v. Wachovia Bank,
N. A., 550 U. S. 1 (2007), does not, as the dissent contends,
post, at 552, “suppor[t] OCC’s construction of the statute.”
To the contrary, it is fully in accord with the well established
distinction between supervision and law enforcement.
Watters held that a State may not exercise “ ‘general super
vision and control’ ” over a subsidiary of a national bank, 550
U. S., at 8, because “multiple audits and surveillance under
rival oversight regimes” would cause uncertainty, id., at 21.
“[G]eneral supervision and control” and “oversight” are
worlds apart from law enforcement. All parties to the case
agreed that Michigan’s general oversight regime could not
be imposed on national banks; the sole question was whether
operating subsidiaries of national banks enjoyed the same
immunity from state visitation. The opinion addresses and
answers no other question.
The foregoing cases all involve enforcement of state law.
But if the Comptroller’s exclusive exercise of visitorial pow
ers precluded law enforcement by the States, it would also
preclude law enforcement by federal agencies. Of course it
does not. See, e. g., Bank of America Nat. Trust & Sav.
Assn. v. Douglas, 105 F. 2d 100, 105–106 (CADC 1939) (Secu
2 The dissent attempts to distinguish St. Louis by invoking the principle
that an agency is free to depart from a court’s interpretation of the law.
Post, at 550–551 (citing National Cable & Telecommunications Assn. v.
Brand X Internet Services, 545 U. S. 967, 983 (2005)). This again misses
the point. St. Louis is relevant to proper interpretation of 12 U. S. C.
§ 484(a) not because it is authoritative on the question whether States can
enforce their banking laws, but because it is one in a long and unbroken
line of cases distinguishing visitation from law enforcement. Respond
ents contend that St. Louis holds only that States can enforce their law
when federal law grants the national bank no authority to engage in the
activity at issue. Even if that were true it would make no difference.
The case would still stand for the proposition that the exclusive federal
power of visitation does not prevent States from enforcing their law.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
529 Cite as: 557 U. S. 519 (2009)
Opinion of the Court
rities Exchange Commission investigation of bank fraud is
not an exercise of “visitorial powers”); Peoples Bank of Dan
ville v. Williams, 449 F. Supp. 254, 260 (WD Va. 1978) (same).
In sum, the unmistakable and utterly consistent teaching
of our jurisprudence, both before and after enactment of the
National Bank Act, is that a sovereign’s “visitorial powers”
and its power to enforce the law are two different things.
There is not a credible argument to the contrary. And con
trary to what the Comptroller’s regulation says, the National
Bank Act pre-empts only the former.
C
The consequences of the regulation also cast doubt upon
its validity. No one denies that the National Bank Act
leaves in place some state substantive laws affecting banks.
See Brief for Federal Respondent 20; Brief for Respondent
Clearing House Association, L. L. C. 29; post, at 552. But
the Comptroller’s rule says that the State may not enforce
its valid, non-pre-empted laws against national banks. Post,
at 552–553. The bark remains, but the bite does not.
The dissent admits, with considerable understatement,
that such a result is “unusual,” post, at 556. “Bizarre”
would be more apt. As the Court said in St. Louis:
“To demonstrate the binding quality of a statute but
deny the power of enforcement involves a fallacy made
apparent by the mere statement of the proposition, for
such power is essentially inherent in the very conception
of law.” 263 U. S., at 660.
In sharp contrast to the “unusual” reading propounded by
the Comptroller’s regulation, reading “visitorial powers” as
limiting only sovereign oversight and supervision would
produce an entirely commonplace result—the precise result
contemplated by our opinion in St. Louis, which said that if
a state statute is valid as to national banks, “the corollary
that it is obligatory and enforceable necessarily results.”

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
530 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
Id., at 659–660 (emphasis added). Channeling state attor
neys general into judicial law-enforcement proceedings
(rather than allowing them to exercise “visitorial” oversight)
would preserve a regime of exclusive administrative over
sight by the Comptroller while honoring in fact rather than
merely in theory Congress’s decision not to pre-empt sub
stantive state law. This system echoes many other mixed
state/federal regimes in which the Federal Government ex
ercises general oversight while leaving state substantive law
in place. See, e. g., Wyeth v. Levine, 555 U. S. 555 (2009).
This reading is also suggested by § 484(a)’s otherwise inex
plicable reservation of state powers “vested in the courts of
justice.” As described earlier, visitation was normally con
ducted through use of the prerogative writs of mandamus
and quo warranto. The exception could not possibly ex
empt that manner of exercising visitation, or else the excep
tion would swallow the rule. Its only conceivable purpose
is to preserve normal civil and criminal lawsuits. To be
sure, the reservation of powers “vested in the courts of jus
tice” is phrased as an exception from the prohibition of visi
torial powers. But as we have just discussed, it cannot pos
sibly be that, and it is explicable only as an attempt to make
clear that the courts’ ordinary powers of enforcing the law
are not affected.3
3 We reject respondents’ contention that the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994, § 102(f)(1)(B), 108 Stat.
2349, 12 U. S. C. § 36(f)(1)(B), establishes that the Comptroller’s visitorial
power pre-empts state law enforcement. That provision states that some
state laws respecting bank branching “shall be enforced” by the Comptrol
ler. We need not decide here whether converting the Comptroller’s visi
torial power to assure compliance with all applicable laws, see infra, at
534, into an obligation to assure compliance with certain state laws pre
empts state enforcement of those particular laws. Even if it had that
effect it would shed no light on the meaning of “visitorial powers” in the
National Bank Act, a statute that it does not refer to and that was enacted
more than a century earlier.

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
531 Cite as: 557 U. S. 519 (2009)
Opinion of the Court
On a pragmatic level, the difference between visitation and
law enforcement is clear. If a State chooses to pursue en
forcement of its laws in court, then it is not exercising its
power of visitation and will be treated like a litigant. An
attorney general acting as a civil litigant must file a lawsuit,
survive a motion to dismiss, endure the rules of procedure
and discovery, and risk sanctions if his claim is frivolous or
his discovery tactics abusive. Judges are trusted to prevent
“fishing expeditions” or an undirected rummaging through
bank books and records for evidence of some unknown
wrongdoing. In New York, civil discovery is far more lim
ited than the full range of “visitorial powers” that may be
exercised by a sovereign. Courts may enter protective or
ders to prevent “unreasonable annoyance, expense, embar
rassment, disadvantage, or other prejudice,” N. Y. Civ. Prac.
Law Ann. § 3103(a) (West 2005), and may supervise discovery
sua sponte, § 3104(a). A visitor, by contrast, may inspect
books and records at any time for any or no reason.
II
The Comptroller’s regulation, therefore, does not comport
with the statute. Neither does the Comptroller’s interpre
tation of its regulation, which differs from the text and must
be discussed separately.
Evidently realizing that exclusion of state enforcement of
all state laws against national banks is too extreme to be
contemplated, the Comptroller sought to limit the sweep of
its regulation by the following passage set forth in the
agency’s statement of basis and purpose in the Federal
Register:
“What the case law does recognize is that ‘states retain
some power to regulate national banks in areas such as
contracts, debt collection, acquisition and transfer of
property, and taxation, zoning, criminal, and tort law.’
[citing a Ninth Circuit case.] Application of these laws
to national banks and their implementation by state

557US2 Unit: $U82 [07-07-14 13:15:54] PAGES PGT: OPIN
532 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
authorities typically does not affect the content or ex
tent of the Federally-authorized business of banking . . .
but rather establishes the legal infrastructure that sur
rounds and supports the ability of national banks . . .
to do business.” 69 Fed. Reg. 1896 (2004) (footnote
omitted).
This cannot be reconciled with the regulation’s almost cat
egorical prohibition in 12 CFR § 7.4000(a)(1) of “prosecuting
enforcement actions.” 4 Nor can it be justified by the provi
sion in subsection (a)(2)(iv) which defines visitorial powers
to include “[e]nforcing compliance with any applicable . . .
state laws concerning” “activities authorized or permitted
pursuant to federal banking law,” § 7.4000(a)(2)(iii). The lat
ter phrase cannot be interpreted to include only distinctively
banking activities (leaving the States free to enforce non
banking state laws), because if it were so interpreted subsec
tion (a)(2)(iii), which uses the same terminology, would limit
the Comptroller’s exclusive visitorial power of “[r]egulation
and supervision” to distinctively banking activities—which
no one thinks is the case. Anyway, the National Bank Act
does specifically authorize and permit activities that fall
within what the statement of basis and purpose calls “the
legal infrastructure that surrounds and supports the ability
4 The prohibition is not entirely categorical only because it is subject to
the phrase at the end of the sentence (applicable to all of the regulation’s
enumerated “visitorial powers” forbidden to the States): “except in limited
circumstances authorized by federal law.” This replicates a similar ex
ception contained in 12 U. S. C. § 484(a) itself (“No national bank shall be
subject to any visitorial powers except as authorized by Federal law”),
and certainly does not refer to case law finding state action non-pre
empted. If it meant that, § 484(a)’s apparent limitation of visitorial pow
ers would be illusory—saying, in effect, that national banks are subject to
only those visitorial powers that the courts say they are subject to. Cases
that find state action non-pre-empted might perhaps be described as “per
mitting” the state action in question, but hardly as “authorizing” it. In
both the statutory and regulation context, “federal law” obviously means
federal statutes.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
533 Cite as: 557 U. S. 519 (2009)
Opinion of the Court
of national banks . . . to do business.” See, e. g., 12 U. S. C.
§ 24 Third (power to make contracts); § 24 Seventh (“all such
incidental powers as shall be necessary to carry on the busi
ness of banking”). And of course a distinction between “im
plementation” of “infrastructure” and judicial enforcement of
other laws can be found nowhere within the text of the stat
ute. This passage in the statement of basis and purpose,
resting upon neither the text of the regulation nor the text
of the statute, attempts to do what Congress declined to do:
exempt national banks from all state banking laws, or at
least state enforcement of those laws.
III
The dissent fails to persuade us. Its fundamental conten
tion—that the exclusive grant of visitorial powers can be in
terpreted to preclude state enforcement of state laws—rests
upon a logical fallacy. The dissent establishes, post, at 541–
543 (and we do not at all contest), that in the course of exer
cising visitation powers the sovereign can compel compliance
with the law. But it concludes from that, post, at 545, that
any sovereign attempt to compel compliance with the law
can be deemed an exercise of the visitation power. That
conclusion obviously does not follow. For example, in the
course of exercising its visitation powers, the sovereign can
assuredly compel a bank to honor obligations that are in de
fault. Does that mean that the sovereign’s taking the same
action in executing a civil judgment for payment of those
obligations can be considered an exercise of the visitation
power? Of course not. Many things can be compelled
through the visitation power that can be compelled through
the exercise of other sovereign power as well. The critical
question is not what is being compelled, but what sovereign
power has been invoked to compel it. And the power to
enforce the law exists separate and apart from the power
of visitation.
The dissent argues that the Comptroller’s expansive read
ing of “visitorial powers” does not intrude upon “ ‘the his

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
534 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
toric police powers of the States,’ ” post, at 554 (quoting Rice
v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)), be
cause, like federal maritime law, federal involvement in this
field dates to “ ‘the earliest days of the Republic,’ ” post, at
555 (quoting United States v. Locke, 529 U. S. 89, 108 (2000)).
For that reason, the dissent concludes, this case does not
raise the sort of federalism concerns that prompt a presump
tion against pre-emption. We have not invoked the pre
sumption against pre-emption, and think it unnecessary to
do so in giving force to the plain terms of the National Bank
Act. Neither, however, should the incursion that the Comp
troller’s regulation makes upon traditional state powers be
minimized. Although the sovereign visitorial power of as
suring national-bank compliance with all laws inhered in the
Federal Government from the time of its creation of national
banks, the Comptroller was not given authority to enforce
non-pre-empted state laws until 1966. See Financial Institu
tions Supervisory Act of 1966, Tit. III, 80 Stat. 1046–1055.
A power first exercised during the lifetime of every current
Justice is hardly involvement “from the earliest days of the
Republic.”
States, on the other hand, have always enforced their gen
eral laws against national banks—and have enforced their
banking-related laws against national banks for at least 85
years, as evidenced by St. Louis, in which we upheld enforce
ment of a state anti-bank-branching law, 263 U. S., at 656.
See also Anderson Nat. Bank v. Luckett, 321 U. S. 233, 237,
248–249 (1944) (state commissioner of revenue may enforce
abandoned-bank-deposit law against national bank through
“judicial proceedings”); State ex rel. Lord v. First Nat. Bank
of St. Paul, 313 N. W. 2d 390, 393 (Minn. 1981) (state treas
urer may enforce general unclaimed-property law with “spe
cific provisions directed toward” banks against national
bank); Clovis Nat. Bank v. Callaway, 69 N. M. 119, 130–
132, 364 P. 2d 748, 756 (1961) (state treasurer may enforce

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
Cite as: 557 U. S. 519 (2009) 535
Opinion of the Court
unclaimed-property law against national-bank deposits);
State v. First Nat. Bank of Portland, 61 Ore. 551, 554–557,
123 P. 712, 714 (1912) (state attorney general may enforce
bank-specific escheat law against national bank).5
The dissent seeks to minimize the regulation’s incursion
upon state powers by claiming that the regulation does not
“declare the pre-emptive scope of the [National Bank Act]”
but merely “interpret[s] the term ‘visitorial powers.’ ” Post,
at 555. That is much too kind. It is not without reason
that the regulation is contained within a subpart of the
Comptroller’s regulations on “Bank Activities and Opera
tions” that is entitled “Preemption.” The purpose and func
tion of the statutory term “visitorial powers” is to define and
thereby limit the category of action reserved to the Federal
Government and forbidden to the States. Any interpreta
tion of “visitorial powers” necessarily “declares the pre
emptive scope of the NBA,” ibid. What is clear from logic is
also clear in application: The regulation declares that “[s]tate
officials may not . . . prosecut[e] enforcement actions.” 12
CFR § 7.4000(a). If that is not pre-emption, nothing is.
IV
Applying the foregoing principles to this case is not diffi
cult. “Visitorial powers” in the National Bank Act refers to
a sovereign’s supervisory powers over corporations. They
include any form of administrative oversight that allows a
sovereign to inspect books and records on demand, even if
the process is mediated by a court through prerogative writs
or similar means. The Comptroller reasonably interpreted
this statutory term to include “conducting examinations
[and] inspecting or requiring the production of books or rec
5 All of these cases were decided before Congress added to § 484 its
current subsection (b), which authorizes “State auditors and examin
ers” to review national-bank records to assure compliance with state
unclaimed-property and escheat laws. See 96 Stat. 1521.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
536 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
ords of national banks,” § 7.4000, when the State conducts
those activities in its capacity as supervisor of corporations.
When, however, a state attorney general brings suit to
enforce state law against a national bank, he is not acting in
the role of sovereign-as-supervisor, but rather in the role of
sovereign-as-law-enforcer. Such a lawsuit is not an exercise
of “visitorial powers,” and thus the Comptroller erred by
extending the definition of “visitorial powers” to include
“prosecuting enforcement actions” in state courts, § 7.4000.
The request for information in the present case was stated
to be “in lieu of ” other action; implicit was the threat that if
the request was not voluntarily honored, that other action
would be taken. All parties have assumed, and we agree,
that if the threatened action would have been unlawful the
request-cum-threat could be enjoined. Here the threatened
action was not the bringing of a civil suit, or the obtaining
of a judicial search warrant based on probable cause, but
rather the Attorney General’s issuance of subpoena on his
own authority under New York Executive Law, which per
mits such subpoenas in connection with his investigation of
“repeated fraudulent or illegal acts . . . in the carrying on,
conducting or transaction of business.” See N. Y. Exec.
Law Ann. § 63(12) (West 2002). That is not the exercise of
the power of law enforcement “vested in the courts of jus
tice” which 12 U. S. C. § 484(a) exempts from the ban on exer
cise of supervisory power.
Accordingly, the injunction below is affirmed as applied to
the threatened issuance of executive subpoenas by the Attor
ney General for the State of New York, but vacated insofar
as it prohibits the Attorney General from bringing judicial
enforcement actions.
* * *
The judgment of the Court of Appeals is affirmed in part
and reversed in part.
It is so ordered.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
537 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
Justice Thomas, with whom The Chief Justice, Jus
tice Kennedy, and Justice Alito join, concurring in part
and dissenting in part.
The Court holds that the term “visitorial powers” as used
in the National Bank Act (NBA), 12 U. S. C. § 484(a), refers
only “to a sovereign’s supervisory powers over corpo
rations,” which are limited to “administrative oversight”
including “inspect[ion of] books and records on demand.”
Ante, at 535. Based on this definition, the Court concludes
that § 484(a) does not pre-empt a “state attorney general[’s]
. . . suit to enforce state law against a national bank.” Ante,
at 536. I would affirm the Court of Appeals’ determinations
that the term “visitorial powers” is ambiguous and that it
was reasonable for the Office of the Comptroller of the Cur
rency (OCC) to interpret the term to encompass state efforts
to obtain national bank records and to enforce state fair lend
ing laws against national banks. Accordingly, I respectfully
concur in part and dissent in part.
I
A
The NBA provides that “[n]o national bank shall be subject
to any visitorial powers except as authorized by Federal law,
vested in the courts of justice or such as shall be, or have
been exercised or directed by Congress or by either House
thereof or by any committee of Congress or of either House
duly authorized.” 12 U. S. C. § 484(a). Through notice
and-comment rulemaking, OCC issued a regulation defining
“visitorial powers” as including: “(i) Examination of a bank;
(ii) Inspection of a bank’s books and records; (iii) Regulation
and supervision of activities authorized or permitted pursu
ant to federal banking law; and (iv) Enforcing compliance
with any applicable federal or state laws concerning those
activities.” 12 CFR § 7.4000(a)(2) (2005). OCC further

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
538 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
concluded that 12 U. S. C. § 484(a)’s “vested in the courts of
justice” exception pertains only to the “powers inherent in
the judiciary and does not grant state or other governmen
tal authorities any right to inspect, superintend, direct, regu
late or compel compliance by a national bank with respect
to any law, regarding the content or conduct of activities au
thorized for national banks under Federal law.” 12 CFR
§ 7.4000(b)(2). The Court of Appeals upheld OCC’s regula
tion as reasonable. See 510 F. 3d 105 (CA2 2007).
This Court’s decision in Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984), pro
vides the framework for deciding this case. “In Chev
ron, this Court held that ambiguities in statutes within an
agency’s jurisdiction to administer are delegations of au
thority to the agency to fill the statutory gap in reasonable
fashion.” National Cable & Telecommunications Assn. v.
Brand X Internet Services, 545 U. S. 967, 980 (2005). Ac
cordingly, “[i]f a statute is ambiguous, and if the implement
ing agency’s construction is reasonable, Chevron requires a
federal court to accept the agency’s construction of the stat
ute, even if the agency’s reading differs from what the court
believes is the best statutory interpretation.” Ibid.
OCC is “the administrator charged with supervision of the
[NBA],” NationsBank of N. C., N. A. v. Variable Annuity
Life Ins. Co., 513 U. S. 251, 256 (1995), and it acted through
notice-and-comment rulemaking procedures in promulgating
the regulation at issue in this case, see 69 Fed. Reg. 1895
(2004). As a result, 12 CFR § 7.4000 falls within the heart
land of Chevron. See United States v. Mead Corp., 533 U. S.
218, 229–230 (2001); see also, e. g., Smiley v. Citibank (South
Dakota), N. A., 517 U. S. 735, 739 (1996) (deferring to OCC’s
interpretation of the term “ ‘interest’ ” in the NBA). “It is
our practice to defer to the reasonable judgments of agencies
with regard to the meaning of ambiguous terms in statutes
that they are charged with administering,” and “that prac
tice extends to the judgments of the Comptroller of the Cur

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
539 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
rency with regard to the meaning of the banking laws.”
Ibid. The majority does not disagree. See ante, at 525.
As a result, the only disputed question is whether the statu
tory term “visitorial powers” is ambiguous and, if so,
whether OCC’s construction of it is reasonable.
B
The majority concedes that there is “some ambiguity as to
the meaning of the statutory term ‘visitorial powers.’ ”
Ibid. Yet it concludes that OCC’s interpretation of § 484(a)
is not entitled to deference because the Court “can discern
the outer limits of the term ‘visitorial powers’ even through
the clouded lens of history” and these outer definitional lim
its “do not include . . . ordinary enforcement of the law.”
Ibid. I cannot agree. The statutory term “visitorial pow
ers” is susceptible to more than one meaning, and the
agency’s construction is reasonable.
Because the NBA does not define “visitorial powers,” the
ordinary meaning of the words chosen by Congress provides
the starting point for interpreting the statute. See Dean v.
United States, 556 U. S. 568, 572 (2009) (“We start, as always,
with the language of the statute” (internal quotation marks
omitted)); Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187
(1995) (“When terms used in a statute are undefined, we give
them their ordinary meaning”). In 1864, when the NBA
was enacted, “visitation” was generally defined as “[i]nspec
tion; superintendence; direction; [and] regulation.” 2 A.
Burrill, A Law Dictionary and Glossary 598 (2d ed. 1860);
see also 2 J. Bouvier, A Law Dictionary 633 (rev. 4th ed.
1852) (defining “visitation” as “[t]he act of examining into the
affairs of a corporation”). With respect to civil corpora
tions, “visitation” was conducted “by the government itself,
through the medium of the courts of justice.” Id., at 634.
The Court has previously looked to these definitions in exam
ining the meaning of “visitorial powers” for purposes of the
NBA. See Guthrie v. Harkness, 199 U. S. 148, 158 (1905).

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
540 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
OCC’s interpretation of “visitorial powers” to include both
“[r]egulation and supervision of activities authorized or per
mitted pursuant to federal banking law” and “[e]nforcing
compliance with any applicable federal or state laws con
cerning those activities,” 12 CFR §§ 7.4000(a)(2)(iii), (iv), fits
comfortably within this broad dictionary definition of “visita
tion.” And, in turn, petitioner’s demand for nonpublic infor
mation to force national banks to comply with state fair lend
ing laws under threat of judicial action would appear to
qualify as an attempt to “superinten[d]” the banks’ federally
authorized operations “through the medium of the courts of
justice.” See Burrill, supra, at 598; Bouvier, supra, at 634.
On the other hand, as the majority concludes, “visitorial
powers” could be limited to conducting examinations of na
tional banks or otherwise interfering with their internal op
erations. To support this argument, the majority briefly al
ludes to the common-law history of visitation. See ante, at
525–526; see also United States v. Shabani, 513 U. S. 10, 13
(1994) (“[A]bsent contrary indications, Congress intends to
adopt the common law definition of statutory terms”). In so
doing, the majority fully accepts petitioner’s argument that
“Congress invoked a then-familiar common law term of cor
porate governance—visitation—to clarify that the States,
traditionally the supervisors of private corporations doing
business within their jurisdictions, had no authority to exam
ine the condition of a national bank, respond to any perceived
financial risk, or hold the bank to its charter or the laws of
its creation.” Brief for Petitioner 21–22. Under the major
ity’s view, any construction of § 484(a) that fails to preserve
the right of the States to enforce through judicial action their
generally applicable laws against national banks is unrea
sonable and, therefore, not entitled to deference. See ante,
at 528–529.
But contrary to the major ity’s deter mi nati on, the
common-law tradition does not compel the conclusion that
petitioner’s definition of visitation is the only permissible in

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
541 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
terpretation of the term. Indeed, a more thorough exami
nation of § 484(a)’s common-law ancestry suggests the op
posite. As the majority notes, see ante, at 525–526, the
concept of visitation originated in Roman and canon law in
which the term was used to describe the church hierarchy’s
authority over its own institutions, see Pound, Visitatorial
Jurisdiction Over Corporations in Equity, 49 Harv. L. Rev.
369, 369–370 (1936). The practice of visitation later ex
panded to include the supervision of charities, universities,
and civil corporations. Ibid.
With respect to churches, charities, and universities, a visi
tor’s duties were narrow. In the university setting, for ex
ample, the “power of the visitor [was] confined to offences
against the private laws of the college; he ha[d] no cogni
zance of acts of disobedience to the general laws of the land.”
2 S. Kyd, Law of Corporations 276 (1794) (emphasis in origi
nal). The visitor’s duties were equally narrow in the gov
ernance of ecclesiastical and charitable institutions. See 1
W. Blackstone, Commentaries on the Laws of England 467–
472 (1765); Trustees of Dartmouth College v. Woodward, 4
Wheat. 518, 673–677 (1819) (Story, J., concurring). If the
sweep of a visitor’s authority with respect to civil corpora
tions was the same, the majority would have a stronger ar
gument that the “visitorial powers” prohibition was similarly
limited. See ante, at 525–526. However, the common-law
tradition instead suggests that visitorial powers were
broader with respect to civil corporations, including banks.
Historically, visitorial authority over civil corporations
was exercised only by the sovereign who had broad authority
to assure compliance with generally applicable laws. See
Blackstone, supra, at 469 (“The king being thus constituted
by law the visitor of all civil corporations, the law has also
appointed the place, wherein he shall exercise this jurisdic
tion: which is the court of king’s bench; where, and where
only, all misbehaviors of this kind of corporations are en
quired into and redressed, and all their controversies de

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
542 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
cided”); 2 J. Kent, Commentaries on American Law 241
(1827) (explaining that “visitation of civil corporations is by
the government itself, through the medium of the courts of
justice”). “Civil corporations, whether public, as the corpo
rations of towns and cities; or private, as bank, insurance,
manufacturing, and other companies of the like nature, are
not subject to [private] visitation. They are subject to the
general law of the land, and amenable to the judicial tribu
nals for the exercise and the abuse of their powers.” Id., at
244; see also J. Angell & S. Ames, Law of Private Corpora
tions § 684, p. 680 (rev. 4th ed. 1852) (“Civil corporations,
whether public or private, being created for public use and
advantage, properly fall under the superintendency of that
sovereign power whose duty it is to take care of the public
interest; whereas, corporations, whose object is the distribu
tion of a private benefaction, may well find jealous guardians
in the zeal or vanity of the founder, his heirs, or appointees”).
States have traditionally exercised their visitorial powers
over civil corporations by invoking the authority of the judi
ciary to “compel domestic corporations or their officers to
perform specific duties incumbent on them by reason of their
charters, or under statutes or ordinances or imposed by the
common law.” Pound, supra, at 375 (emphasis added); see
also S. Merrill, Law of Mandamus § 158, p. 194 (1892) (ex
plaining that “under the visitorial power of the state, any
breach of duty by a private corporation may be corrected by”
the writ of mandamus and that the duty “may be imposed by
[the corporation’s] charter, by the general statutes, or by the
common law” (footnotes omitted)). As Merrill explained,
such actions were employed to compel common carriers and
certain other civil corporations to adhere to “statutory or
common law” duties, including the duty to “exten[d] to all
without discrimination the use of their services.” Id., § 162,
at 200; see also J. Grant, A Practical Treatise on the Law of
Corporations in General, As Well Aggregate as Sole 262

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
543 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
(1854) (explaining that mandamus was available when corpo
rations “refuse[d] to perform a duty cast upon them by the
law of the land”).1
Even before enactment of the NBA, several States enacted
laws granting banking commissioners specific authority to
investigate compliance with generally applicable laws and to
use the courts to ensure observance therewith. See, e. g.,
Act of Feb. 23, ch. 14, § 2, 1838 Mass. Acts p. 303 (authorizing
banking commissioners to “visit” a bank and “examine all
[its] affairs” to determine whether it had “complied with the
provisions of law applicable to [its] transactions”); Act of May
14, ch. 363, § 12, 1840 N. Y. Laws pp. 307–308 (authorizing
banking commissioners to bring judicial actions against
banks “found to have violated any law of this state . . . in
the same manner and with the like effect as any incorpo
rated bank may be proceeded against for a violation of its
1 By looking to Justice Story’s concurrence in Trustees of Dartmouth
College v. Woodward, 4 Wheat. 518 (1819), for authoritative guidance, see
ante, at 526–527, the majority seemingly rejects the distinction between
the visitor’s role in supervising civil corporations and the visitor’s far more
limited role in supervising private institutions such as churches, universi
ties, and charitable organizations. See ante, at 527, n. 1. In Woodward,
the Court addressed the scope of the visitor’s authority over a private
college—not a civil corporation. See 4 Wheat., at 562–563 (“The corpora
tion in question is not a civil, although it is a lay corporation. It is an
eleemosynary corporation. . . . Eleemosynary corporations are for the
management of private property, according to the will of the donors.
They are private corporations” (emphasis in original)). Visitors histori
cally did not have “law enforcement power” over churches, universities,
and charitable organizations. See supra, at 540–541. But there is strong
evidence that visitors of civil corporations—i. e., sovereigns—were so em
powered. See supra, at 541–542 and this page. The distinction between
these species of visitation is crucial because it yields divergent under
standings as to the scope of the visitor’s power to enforce generally ap
plicable laws in court. Moreover, the majority’s failure to confront this
important difference leaves a gap in its historical analysis that, in turn,
undermines its conclusion that OCC’s interpretation of § 484(a) was
unreasonable.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
544 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
charter”). Indeed, Congress modeled the NBA after New
York’s supervisory regime. See J. Knox, A History of Bank
ing in the United States 422 (1903) (reprint 1969).
Petitioner contends, and the majority agrees, that this un
derstanding of the common law confuses the sovereign’s “en
forcement of general laws that apply equally to all actors
within a State, like the ban on discrimination found in New
York Executive Law § 296–a” with “an exercise of visitorial
powers.” Brief for Petitioner 24; see also ante, at 529 (con
cluding that “a sovereign’s ‘visitorial powers’ and its power
to enforce the law are two different things”). But this nar
row conception of visitorial powers does not fully capture the
common law. In a section entitled “Visitorial power,” one
treatise explained that “[a]s a general rule the state has the
same control, in this respect, over corporations that it has
over individuals.” C. Elliott, Law of Private Corporations
§ 90, p. 80 (rev. 3d ed. 1900); see also 1 S. Thompson, Com
mentaries on the Law of Private Corporations § 475, p. 580
(J. Thompson rev. 2d ed. 1908) (“In its visitorial capacity the
state checks and controls corporate affairs, even for the pro
tection of those who deal with them”). If the sovereign’s
power of visitation was limited to oversight of “corporate
affairs,” visitation would not parallel the sovereign’s control
over individuals or allow the sovereign to protect through
judicial action the rights of individuals who “deal with” the
corporation. See ibid.
The Wisconsin Supreme Court’s decision in Attorney Gen
eral v. Chicago & Northwestern R. Co., 35 Wis. 425 (1874)—
which has been referred to as “the leading American case
for the visitorial jurisdiction of equity,” Pound, 49 Harv.
L. Rev., at 380—illustrates the point. In that case, the state
attorney general sought a writ of injunction to “restrain the
two defendant companies from exacting tolls for the carriage
of passengers or freight in excess of the maximum rates es
tablished by” Wisconsin law, 35 Wis., at 432. The attorney
general “appl[ied] for the writ on behalf of the public,” id.,

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
545 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
at 531, in order “ ‘to correct abuses and save the rights of
the people,’ ” id., at 572. The court found that the attorney
general’s visitorial power included enforcement of generally
applicable law against civil corporations through courts of
equity. See id., at 529–530. As the court explained, the
common-law understanding of visitorial powers had ex
panded beyond its ecclesiastical roots to include such author
ity. See id., at 530 (“The grounds on which this jurisdiction
rests are ancient; but the extent of its application has grown
rapidly of late years, until a comparatively obscure and insig
nificant jurisdiction has become one of great magnitude and
public import”).
As a result, the majority’s conclusion that when “a state
attorney general brings suit to enforce state law against a
national bank, he is not acting in the role of sovereign
as-supervisor, but rather in the role of sovereign-as-law
enforcer,” ante, at 536, cannot be reconciled with this lead
ing case or the general common-law understanding on which
the decision rests. At common law, all attempts by the
sovereign to compel civil corporations to comply with state
law—whether through administrative subpoenas or judicial
actions—were visitorial in nature. Thus, even if the sov
ereign’s law enforcement and visitorial powers were at one
time distinct, by common law, they had merged at least with
respect to the enforcement of generally applicable public
laws against civil corporations. See Thompson, supra, § 460,
at 556 (“The police power, in its visitorial aspect, as exer
cised by congress and the several states, extends to the mi
nutest details of the banking business” (emphasis added)).
By construing visitation so narrowly, the majority implicitly
rejects the efforts of William Blackstone, James Kent, and
Roscoe Pound, see supra, at 541–542, in elucidating the his
torical meaning of this concept. Like OCC, each of these
venerable legal scholars understood visitation of civil corpo
rations to include the power to enforce generally applicable
laws through judicial actions. See ibid.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
546 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
In the end, OCC was presented with a broad dictionary
definition of “visitation” and a common-law history sug
gesting that the scope of the visitor’s authority varied in ac
cordance with the nature of the organization under supervi
sion. It is possible that the “visitorial powers” are narrower
than OCC concluded. But a visitor’s powers could also be
broader. There is support for the proposition that visitation
includes enforcement of all generally applicable laws. See
supra, at 540–545 and this page. OCC instead interpreted
“visitorial powers” to prohibit only enforcement of laws con
cerning “activities authorized or permitted pursuant to
federal banking law.” 12 CFR §§ 7.4000(a)(2)(iii) and (iv).
States are thus free to enforce applicable laws that do
not regulate federally authorized banking activities, see
§ 7.4000(a)(3), “including, for example, criminal, tax, zoning,
and labor and employment laws,” Brief for Federal Respond
ent 15 (citing 69 Fed. Reg. 1896).
Thus, although the text and history of visitation do not
authoritatively support either party’s construction of the
statute, OCC’s decision to adopt a more modest construction
than could have been supported by the common-law and dic
tionary definition reinforces the reasonableness of its reg
ulation. Put simply, OCC selected a permissible construc
tion of a statutory term that was susceptible to multiple
interpretations.
C
Petitioner nonetheless argues that the original structure
of the NBA compels us to adopt his reading of “visitorial
powers.” When enacted in 1864, the “visitorial powers”
clause was preceded by a statutory provision directing the
Comptroller of the Currency to appoint persons “to make a
thorough examination into all the affairs of [every banking]
association” and to “make a full and detailed report of the
condition of the association to the comptroller.” Act of June
3, 1864, ch. 106, § 54, 13 Stat. 116. In addition, the “visitorial
powers” clause was succeeded by a sentence concerning the

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
547 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
compensation due to the examiners. See ibid. Petitioner
contends that the placement of the “visitorial powers” clause
between these two provisions indicates that it originally
meant to ban States only from conducting the particular type
of “thorough examination” of banking affairs described in the
neighboring provisions. And, petitioner adds, § 484 cur
rently resides in the subchapter of the statute entitled “Bank
Examinations,” which still includes a provision directing the
Comptroller to appoint examiners “to make a thorough ex
amination of all the affairs of the bank and . . . make a full
and detailed report of the condition of said bank to the
Comptroller of the Currency.” 12 U. S. C. § 481.
Petitioner’s argument is undermined, however, by other
structural attributes of this subchapter. In § 484(b), for ex
ample, Congress provided that “[n]otwithstanding” the stat
ute’s visitorial-powers prohibition, “State auditors and exam
iners may . . . review [a national bank’s] records solely to
ensure compliance with applicable State unclaimed property
or escheat laws.” Such review does not fall within petition
er’s definition of “visitorial powers” because the enforcement
of state property laws is in no way associated with national
bank examinations or internal operations. Thus, were
§ 484(a) to have the meaning petitioner assigns, there would
have been no reason for Congress to identify the § 484(b)
authority as an exception to § 484(a)’s “visitorial powers”
prohibition, as the authority granted in § 484(b) would never
have been eliminated by § 484(a).
Other exceptions in § 484 also support OCC’s construction
of the statute. For example, § 484(a) includes an exception
for visitations “authorized by Federal law.” One type of vis
itation authorized by law is described in 26 U. S. C. § 3305(c),
which provides that “[n]othing contained in [§ 484] shall pre
vent any State from requiring any national” bank to provide
payroll records and reports for unemployment tax purposes.
Similarly, 12 U. S. C. § 62 permits state tax officials to inspect
national bank shareholder lists. Both provisions would be

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
548 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
unnecessary if “visitorial powers” were limited to bank ex
aminations and internal operations.
In sum, the NBA’s structure does not compel the construc
tion of § 484(a)’s text that petitioner advocates. If anything,
given the manner in which Congress crafted exceptions to
the “visitorial powers” ban in the statute, the opposite is
true.2
D
The majority also accepts petitioner’s contention that
OCC’s construction of “visitorial powers” is unreasonable be
cause it conflicts with several of this Court’s decisions. See
ante, at 526–529. But petitioner cannot prevail by simply
showing that this Court previously adopted a construction
of § 484 that differs from the interpretation later chosen by
the agency. “A court’s prior judicial construction of a stat
ute trumps an agency construction otherwise entitled to
2 Contrary to the majority’s conclusion, see ante, at 530, n. 3, petitioner’s
structural argument is also undermined by the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994 (Riegle-Neal), 108 Stat.
2338, which authorized national banks to operate interstate branches.
The statute provides that “[t]he laws of the host State regarding commu
nity reinvestment, consumer protection, fair lending, and establishment of
intrastate branches shall apply to any branch in the host State of an out
of-State national bank to the same extent as such State laws apply to a
branch of a bank chartered by that State” unless federal law separately
pre-empts their application or the Comptroller determines that application
of the state law would have a “discriminatory effect” on the national bank
branch. See id., at 2349–2350, 12 U. S. C. § 36(f)(1)(A). Riegle-Neal fur
ther provides that “[t]he provisions of any State law to which a branch of
a national bank is subject under this paragraph shall be enforced, with
respect to such branch, by the Comptroller of the Currency.” See id., at
2350, 12 U. S. C. § 36(f)(1)(B). The United States has interpreted the
“shall be enforced” language to provide OCC with exclusive enforcement
authority. See Brief for Federal Respondent 46–48. This construction
reinforces OCC’s interpretation of § 484(a). If OCC has exclusive author
ity to enforce state law with respect to interstate branches of national
banks, it would be reasonable to interpret the statute to operate similarly
with respect to the national banks themselves.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
549 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
Chevron deference only if the prior court decision holds that
its construction follows from the unambiguous terms of the
statute and thus leaves no room for agency discretion.”
Brand X, 545 U. S., at 982. These decisions do not construe
§ 484 in a manner that trumps OCC’s regulation.
This Court’s only decision directly addressing the meaning
of “visitorial powers” is Guthrie, which held that the NBA
did not prohibit a suit brought by a private shareholder seek
ing to inspect the books of a national bank, 199 U. S., at 157.
In so holding, the Court contrasted “the private right of the
shareholder to have an examination of the business in which
he is interested” with a visitor’s “public right” to examine
“the conduct of the corporation with a view to keeping it
within its legal powers.” Id., at 158–159. Guthrie thus
draws a line between enforcement of private rights and the
public act of visitation that is consistent with the definition
of visitation embraced by OCC. See id., at 158 (“In no case
or authority that we have been able to find has there been a
definition of this right, which would include the private right
of the shareholder to have an examination of the business in
which he is interested . . . ”). The agency has never taken
the position that the “visitorial powers” prohibition extends
to private action.
Nor does this Court’s decision in First Nat. Bank in
St. Louis v. Missouri, 263 U. S. 640 (1924) (St. Louis), fore
close OCC’s construction of the statute. In that case, the
State of Missouri brought a quo warranto proceeding in
state court “to determine [the national bank’s] authority to
establish and conduct a branch bank in the City of St. Louis.”
Id., at 655. The Court first held that federal law did not
authorize national banks to engage in branch banking. See
id., at 656–659. “Having determined that the power sought
to be exercised by the bank finds no justification in any law
or authority of the United States,” the Court then concluded
that “the way is open for the enforcement of the state stat
ute.” Id., at 660.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
550 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
Petitioner contends, and the majority agrees, see ante, at
527–528, and n. 2, that St. Louis stands for the proposition
that a State retains the right to enforce any state law that
is not substantively pre-empted with respect to national
banks, see 263 U. S., at 660 (“To demonstrate the binding
quality of a statute but deny the power of enforcement in
volves a fallacy made apparent by the mere statement of the
proposition, for such power is essentially inherent in the very
conception of law. . . . What the State is seeking to do is to
vindicate and enforce its own law . . . ”). Under this view,
then, because the New York fair lending laws are not sub
stantively pre-empted, he is not exercising “visitorial pow
ers” by enforcing them.
Respondents counter that the holding of St. Louis is not
so broad. In their view, the Court held only that a State
may enforce its laws against a national bank when federal
law grants the bank no authority to engage in the underlying
activity at issue. See Brief for Respondent Clearing House
Association 33–34. Here, federal law expressly authorizes
national banks to make mortgage loans. See 12 U. S. C.
§ 371(a). Thus, unlike in St. Louis—in which the relevant
state-law-proscribed conduct in a category that was wholly
beyond the powers granted to national banks—petitioner
seeks to superintend the manner in which the national banks
engage in activity expressly authorized by federal law. Ac
cording to respondents, then, § 484(a)’s ban on unauthorized
visitation provides the “controlling reason” forbidding state
enforcement that was absent from St. Louis, see 263 U. S.,
at 660.
There is no need to decide which party has the better ar
gument. The St. Louis decision nowhere references § 484(a)
or addresses “visitorial powers.” Thus, as noted above,
even if the decision is best read to support petitioner’s view
of the statute, that conclusion is insufficient to deny Chevron
deference to OCC’s construction of § 484(a). “Since Chevron
teaches that a court’s opinion as to the best reading of an

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
551 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
ambiguous statute an agency is charged with administering
is not authoritative, the agency’s decision to construe that
statute differently from a court does not say that the court’s
holding was legally wrong. Instead, the agency may, con
sistent with the court’s holding, choose a different construc
tion, since the agency remains the authoritative interpreter
(within the limits of reason) of such statutes.” Brand X,
supra, at 983. A judicial decision that fails to directly con
front the provision at issue cannot be deemed to have
adopted the “authoritative” construction of the statute.3
Petitioner’s reliance on other decisions of this Court is mis
placed for this very same reason. See First Nat. Bank in
Plant City v. Dickinson, 396 U. S. 122 (1969); Anderson Nat.
Bank v. Luckett, 321 U. S. 233 (1944); First Nat. Bank of Bay
City v. Fellows, 244 U. S. 416 (1917); Easton v. Iowa, 188
U. S. 220 (1903); Waite v. Dowley, 94 U. S. 527 (1877); Na
tional Bank v. Commonwealth, 9 Wall. 353 (1870). None of
these decisions addressed the meaning of “visitorial powers”
for purposes of § 484(a), let alone provided a definitive con
struction of the statute.
3 The majority’s suggestion that the Court’s decision in First Nat. Bank
in St. Louis v. Missouri, 263 U. S. 640 (1924), is not “authoritative” falls
short of the mark. See ante, at 528, n. 2; see, e. g., ante, at 529 (“[R]eading
‘visitorial powers’ as limiting only sovereign oversight and supervision
would produce an entirely commonplace result—the precise result contem
plated by our opinion in St. Louis”). According to the majority, irrespec
tive of which party has the better reading of that case, it “would still stand
for the proposition that the exclusive federal power of visitation does not
prevent States from enforcing their law.” Ante, at 528, n. 2. But that
conclusion rests on the assumption that the St. Louis Court shared the
majority’s conception of law enforcement and visitation as categorically
distinct for purposes of § 484(a). It is impossible to verify that assump
tion, however, because the bank never raised the “visitorial powers” de
fense in that case. See Reply Brief for Petitioner 6. If the Chevron doc
trine is to have any interpretative value, an agency’s construction of a
statute cannot be foreclosed by a prior judicial decision in which the provi
sion in question was neither raised by the parties nor passed upon by
the court.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
552 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
Finally, this Court’s decision in Watters v. Wachovia Bank,
N. A., 550 U. S. 1 (2007), supports OCC’s construction of the
statute. Watters addressed whether the NBA pre-empted
the application of certain Michigan laws to the mortgage
lending activities of an operating subsidiary of a national
bank. See id., at 7–8. In deciding that issue, the Court did
not reach the question presented here. But the Court was
fully aware that the Michigan statutes granted state banking
commissioners the very enforcement authority that peti
tioner seeks to exert over the national banks in this case.
See id., at 9–10 (citing Mich. Comp. Laws Ann. §§ 445.1661
(West 2002), 493.56b (West Supp. 2005)); see also 550 U. S.,
at 34 (Stevens, J., dissenting) (describing §§ 445.1661 and
493.56b as “state visitorial oversight”).4
As the Court explained, although “the Michigan provisions
at issue exempt[ed] national banks from coverage . . . [t]his
[was] not simply a matter of the Michigan Legislature’s
grace. For, as the parties recognize, the NBA would have
preemptive force, i. e., it would spare a national bank from
state controls of the kind here involved.” Id., at 13 (cita
tions omitted); see ibid. (explaining that “real estate lending,
when conducted by a national bank, is immune from state
visitorial control”). The Court’s conclusion in Watters that
§ 484(a) deprives the States of inspection and enforcement
authority over the mortgage-lending practices of national
4 The majority contends that Watters is “fully in accord with the well
established distinction between supervision and law enforcement.” Ante,
at 528. But this argument ignores the reach of the statutes that the
Court assumed were visitorial in Watters. The Michigan laws at issue in
Watters allowed for much more than “ ‘general supervision and control’ ”
of the operating subsidiaries of national banks. Ante, at 528. They also
included provisions permitting the state attorney general to “take any
appropriate legal action to enjoin the operation of the business” and allow
ing the commissioner “[t]o bring an action in . . . circuit court in the name
and on behalf of this state” to enjoin “any unsafe or injurious practice
or act in violation of this act or a rule promulgated under this act.”
§§ 445.1661(e), 493.56b.

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
553 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
banks lends weight to the agency’s construction of the
statute.
II
Petitioner also argues that three different background
principles trigger a clear-statement rule that overcomes any
Chevron deference to which OCC’s construction of § 484 oth
erwise might be entitled. I disagree. None of petitioner’s
arguments provide a doctrinal basis for refusing to defer to
the agency’s reasonable construction of this statute.
First, petitioner contends that OCC’s regulation, which in
terprets § 484(a) to pre-empt state enforcement of state law
but not the substantive state law itself, undermines impor
tant federalism principles and therefore triggers a require
ment that Congress clearly state its pre-emptive intentions,
see Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (“[I]f Con
gress intends to alter the usual constitutional balance be
tween the States and the Federal Government, it must make
its intention to do so unmistakably clear in the language of
the statute” (internal quotation marks omitted; alteration in
original)). Petitioner is incorrect because OCC’s construc
tion of the statute does not alter the balance of power estab
lished by the Constitution.
National banks are created by federal statute and there
fore are subject to full congressional control. The States
“can exercise no control over them, nor in any wise affect
their operation, except in so far as Congress may see proper
to permit.” Farmers’ and Mechanics’ Nat. Bank v. Dear
ing, 91 U. S. 29, 34 (1875); see also Watters, 550 U. S., at 10
(“Nearly 200 years ago, in McCulloch v. Maryland, 4 Wheat.
316 (1819), this Court held federal law supreme over state
law with respect to national banking”). As a result, the
only question presented by this case is whether Congress
has seen it “proper to permit” the States to enforce state
fair lending laws against national banks. OCC’s reasonable
conclusion that § 484(a) answers that question in the nega
tive does not alter the federal-state balance; it simply pre

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
554 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
serves for OCC the oversight responsibilities assigned to it
by Congress. See id., at 22 (“Regulation of national bank
operations is a prerogative of Congress under the Commerce
and Necessary and Proper Clauses. The Tenth Amend
ment, therefore, is not implicated here” (citation omitted)).
Second, petitioner argues that a clear statement is re
quired because “the historic police powers of the States [are]
not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress,” Rice v. Santa Fe
Elevator Corp., 331 U. S. 218, 230 (1947). There should be
no presumption against pre-emption because Congress has
expressly pre-empted state law in this case. See Altria
Group, Inc. v. Good, 555 U. S. 70, 98 (2008) (Thomas, J.,
dissenting) (“[T]he presumption against pre-emption ‘dis
solves once there is conclusive evidence of intent to pre-empt
in the express words of the statute itself ’ ” (quoting Cipol
lone v. Liggett Group, Inc., 505 U. S. 504, 545 (1992) (Scalia,
J., concurring in judgment in part and dissenting in part)));
see, e. g., Riegel v. Medtronic, Inc., 552 U. S. 312, 315–
316 (2008) (construing the express pre-emption provision of
the Medical Device Amendments of 1976, 21 U. S. C. § 360c
et seq., without any reliance on the presumption against
pre-emption).
In any event, this presumption is “not triggered when the
State regulates in an area where there has been a history of
significant federal presence.” United States v. Locke, 529
U. S. 89, 108 (2000). National banking is the paradigmatic
example. “In defining the pre-emptive scope of statutes and
regulations granting a power to national banks,” this Court
has taken the firm view that “normally Congress would not
want States to forbid, or to impair significantly, the exercise
of a power that Congress explicitly granted.” Barnett Bank
of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 33 (1996). As
a result, federal legislation concerning national banks is “not
normally limited by, but rather ordinarily pre-empt[s], con
trary state law.” Id., at 32. As with general maritime law,

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
555 Cite as: 557 U. S. 519 (2009)
Opinion of Thomas, J.
Congress’ “legislat[ion] in th[is] field from the earliest days
of the Republic” and its creation of an “extensive federal
statutory and regulatory scheme” mean that an “ ‘assump
tion’ of nonpre-emption is not triggered.” Locke, supra, at
108. That the States may also have legislated alongside
Congress in this area, see ante, at 534–535, does not alter
this conclusion, see, e. g., Franklin Nat. Bank of Frank
lin Square v. New York, 347 U. S. 373 (1954).
Last, petitioner argues that Chevron deference is inappli
cable because OCC’s regulation declares the pre-emptive
scope of the NBA. And, the majority flatly asserts that “[i]f
that is not pre-emption, nothing is.” Ante, at 535. But
OCC did not declare the pre-emptive scope of the statute;
rather, it interpreted the term “visitorial powers” to encom
pass state enforcement of state fair lending laws. The pre
emption of state enforcement authority to which petitioner
objects thus follows from the statute itself—not agency ac
tion. See Smiley, 517 U. S., at 744 (“This argument confuses
the question of the substantive (as opposed to pre-emptive)
meaning of a statute with the question of whether a statute
is pre-emptive. We may assume (without deciding) that the
latter question must always be decided de novo by the
courts. That is not the question at issue here; there is no
doubt that § 85 pre-empts state law” (emphasis in original)).
Here, Congress—not the agency—has decided that “[n]o
national bank shall be subject to any visitorial powers except
as authorized by Federal law.” 12 U. S. C. § 484(a). Indeed,
the majority agrees that it is the “statutory term”—and not
OCC’s regulation—that “define[s] and thereby limit[s] the
category of action reserved to the Federal Government and
forbidden to the States.” Ante, at 535. As a result, OCC
has simply interpreted that term to encompass petitioner’s
decision to demand national bank records and threaten judi
cial enforcement of New York fair lending laws as a means
of obtaining them. As Smiley showed, a federal agency’s
construction of an ambiguous statutory term may clarify the

557US2 Unit: $U82 [07-07-14 13:15:55] PAGES PGT: OPIN
556 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of Thomas, J.
pre-emptive scope of enacted federal law, but that fact alone
does not mean that it is the agency, rather than Congress,
that has effected the pre-emption.
Petitioner’s federalism-based objections to Chevron defer
ence ultimately turn on a single proposition: It is doubtful
that Congress pre-empted state enforcement of state laws
but not the underlying state laws themselves. But it is not
this Court’s task to decide whether the statutory scheme
established by Congress is unusual or even “ ‘[b]izarre.’ ”
See ante, at 529. The Court must decide only whether the
construction adopted by the agency is unambiguously fore
closed by the statute’s text. Here, the text, structure, and
history of “visitorial powers” support the agency’s reason
able interpretation of § 484. Petitioner has not identified
any constitutional principle that would require Congress to
take the greater step of pre-empting all enforcement of state
lending laws (including private enforcement) even though its
central concern was the allocation of the right to exercise
public visitation over national bank activities.
* * *
For all these reasons, I would affirm the judgment of the
Court of Appeals.