WHITE, J., concurring in result

464 U. S.

would be able to undersell others, while an importer having lost a case would be unable to compete. "Such a result would lead to inequality in the administration of the customs law, to discrimination and to great injustice and confusion." Id., at 236. The same concerns were evident in Commissioner v. Sunnen, 333 U. S. 591 (1948). There the Court noted the inequality that would flow from blanket application of collateral estoppel in the tax area. A taxpayer is not entitled to the benefit of his judgment if there has been "a subsequent... change or development in the controlling legal principles." Id., at 599. Otherwise, he would enjoy preferential treatment. Such discrimination is to be avoided, because collateral estoppel "is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby causing inequities among taxpayers." Ibid.

There is no real difference between those cases and this one. In each, the prior litigant escapes strictures that apply to others solely because he litigated the issue once before and prevailed. As the Restatement points out, "[r]efusal of preclusion is ordinarily justified if the effect of applying preclusion is to give one person a favored position in current administration of a law." Restatement (Second) of Judgments

§ 28, Comment c (1982).1

C

Cases like Sunnen and Stone & Downer merely recognize that collateral estoppel on issues of law, which is a narrow, flexible, judge-made doctrine, becomes intolerable if the rule of law at issue is too far removed from the prevailing legal

'According to the Restatement, relitigation of an issue is not precluded if "[t]he issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws. . . .' Restatement (Second) of Judgments § 28 (1982). Even if part (a) is inapplicable in the circumstances of this case, it seems clear to me that both prongs of part (b) apply to litigation in a circuit where the prevailing legal rule is different from that established in earlier litigation in another jurisdiction.

165

WHITE, J., concurring in result

rules. Even Stauffer concedes that a decision from this Court on the merits would so affect the "controlling law" that it would lose the entire benefit of the initial judgment in its favor. Similarly, no one contends that if Congress amended the statute to make the opposite result plain, Stauffer could continue to rely on the original judgment. And presumably if the Tenth Circuit were to reverse itself, en banc, and hold that private contractors could make EPA inspections, then Stauffer would no longer be able to keep them out on the authority of Stauffer I. Finally, it is apparent that if, for example, Stauffer has plants in Canada, it cannot impose the Tenth Circuit's inspection requirements on the Canadian authorities. Why then should Stauffer be able to use the decisions of the Sixth and Tenth Circuits to estop the Government in the Ninth Circuit, where the opposite rule prevails? The decisions of those other Circuits are not the "controlling law" in the Ninth; the controlling law in the Ninth is exactly to the contrary. There is no difference between this situation and that where the law within a particular jurisdiction has changed since the initial decision.

V

The doctrine of collateral estoppel is designed to ensure litigants the benefit of prior litigation; this is not the same as ensuring them the benefits of a prior ruling. In arguing that Stauffer I precludes the EPA nationwide from relitigat

2

2 This distinction is perhaps reflected in the "same demand" limitation on estoppel on pure issues of law. As Professor Scott wrote four decades ago, "if a court erroneously holds that a gratuitous promise is binding, that holding is not conclusive as to subsequent contracts made between the same parties." Scott, Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1,7 (1942). See also United States v. Moser, 266 U. S. 236, 242 (1924) (res judicata "does not apply to unmixed questions of law. . . [b]ut a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action") (emphasis in original). The distinction is between an abstract legal proposition and the application of that proposition to particular facts.

WHITE, J., concurring in result

464 U. S.

ing this issue against it, Stauffer stretches the doctrine beyond the breaking point. It claims a right to a unique status. Put differently, Stauffer claims immunity from a particular legal rule, not immunity from further litigation. At this point considerations of economy are no longer involved, and Stauffer's approach leads to results that are basically inconsistent with the principle of evenhanded administration of the laws.

In sum, I concur in the judgment of the Court. I do so with the view that preclusion is inappropriate in circuits that have adopted, or later adopt, the contrary legal rule.

Syllabus

IMMIGRATION AND NATURALIZATION SERVICE v.

PHINPATHYA

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

No. 82-91. Argued October 3, 1983-Decided January 10, 1984 Section 244(a)(1) of the Immigration and Nationality Act (Act) authorizes the Attorney General, in his discretion, to suspend deportation of an otherwise deportable alien who "has been physically present in the United States for a continuous period of not less than seven years" and is a person of good moral character whose deportation would result in extreme hardship to the alien or his spouse, parent, or child. Respondent, a citizen of Thailand, first entered the United States as a nonimmigrant student in October 1969, and was authorized to remain until July 1971. But when her visa expired she chose to stay without securing permission from the immigration authorities. In 1977, petitioner Immigration and Naturalization Service commenced deportation proceedings against respondent. Conceding deportability, respondent applied for suspension pursuant to § 244(a)(1). Based on respondent's testimony that she had left the United States for Thailand during January 1974 and that she had improperly obtained a nonimmigrant visa from the United States consular officer in Thailand to aid her reentry three months later, an Immigration Judge concluded that respondent had failed to meet § 244(a)(1)'s 7-year "continuous physical presence" requirement and accordingly denied her application for suspension. The Board of Immigration Appeals (BIA) affirmed, holding that respondent's absence from the United States was meaningfully interruptive of her continuous physical presence in the country, since she was illegally in the United States at the time she left for Thailand and was able to return only by misrepresenting her status. The Court of Appeals reversed, holding that the BIA had placed too much emphasis on respondent's illegal presence prior to her departure and on the increased risk of deportation that her departure had engendered, and that an absence can be "meaningfully interruptive" only when it increases the risk and reduces the hardship of deportation. Held: Respondent did not meet § 244(a)(1)'s "continuous physical presence" requirement. Pp. 189-196.

(a) The Court of Appeals' interpretation of this requirement departs from the Act's plain meaning. Section 244(a)(1)'s language requiring certain threshold criteria to be met before the Attorney General, in his

Syllabus

464 U. S. discretion, may suspend deportation plainly narrows the class of aliens who may obtain suspension. The ordinary meaning of such language does not readily admit any exception to the "continuous physical presence" requirement. When Congress has intended that a "continuous physical presence" requirement be flexibly administered, it has provided authority for doing so. Moreover, the evolution of the deportation provision itself shows that Congress knew how to distinguish between actual "continuous physical presence" and some irreducible minimum of "nonintermittent" presence. Pp. 189-192.

(b) Since this case deals with a threshold requirement added to the statute specifically to limit the discretionary availability of the deportation suspension remedy, a flexible approach to statutory construction, such as the Court of Appeals' approach, is not consistent with the congressional purpose underlying the "continuous physical presence" requirement. Rosenberg v. Fleuti, 374 U. S. 449, distinguished. Pp. 192-194.

(c) To interpret § 244(a)(1) as the Court of Appeals did collapses the section's "continuous physical presence" requirement into its "extreme hardship" requirement and reads the former out of the Act. Section 244(a)(1)'s language and history suggest that the two requirements are separate preconditions for a suspension of deportation. It is also clear that Congress intended strict threshold criteria to be met before the Attorney General could exercise his discretion to suspend deportation. To construe the Act so as to broaden such discretion is fundamentally inconsistent with this intent. Pp. 195–196.

673 F. 2d 1013, reversed.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL and STEVENS, JJ., joined, post, p. 196.

Elliott Schulder argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, and Deputy Solicitor General Geller.

Bert D. Greenberg argued the cause for respondent. With him on the brief was Martin Simone.*

*James J. Orlow filed a brief for the American Immigration Lawyers Association as amicus curiae.