UNITED STATES POSTAL SERVICE v. GREGORY

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2001
UNITED STATES POSTAL SERVICE v. GREGORY
certiorari to the united states court of appeals for
the federal circuit
No. 00–758. Argued October 9, 2001—Decided November 13, 2001
While three disciplinary actions that petitioner Postal Service took against
respondent were pending in grievance proceedings pursuant to the
Postal Service’s collective bargaining agreement with respondent’s
union, the Postal Service terminated respondent’s employment after a
fourth violation. The Civil Service Reform Act of 1978 (CSRA) permits
covered employees, such as respondent, to appeal removals and other
serious disciplinary actions to the Merit Systems Protection Board
(Board) or through the negotiated grievance procedure, but not both.
Respondent appealed to the Board, where an agency must prove its
charge by a preponderance of the evidence, 5 U. S. C. § 7701(c)(1)(B),
proving not only that the misconduct occurred, but also that the penalty
assessed is reasonable in relation to it. An Administrative Law Judge
(ALJ) concluded that respondent’s termination was reasonable in light
of her four violations. Although the three prior disciplinary actions
were the subject of pending grievances, the ALJ analyzed them inde-
pendently, under the approach set forth in Bolling v. Department of Air
Force, 8 M. S. P. B. 658, and found that they were not clearly erroneous.
While respondent’s petition for review of the ALJ’s decision was pend-
ing before the Board, an arbitrator overturned the first disciplinary ac-
tion. Respondent did not inform the Board, which denied her petition.
The Federal Circuit vacated in part and remanded, holding that prior
disciplinary actions subject to ongoing proceedings may not be used to
support a penalty’s reasonableness.
1

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2 POSTAL SERVICE v. GREGORY
Syllabus
Held:
1. The Board may review independently prior disciplinary actions
pending in grievance proceedings when reviewing termination and
other serious disciplinary actions. The Federal Circuit reviews a Board
decision’s substance under the extremely narrow arbitrary and capri-
cious standard, which allows the Board wide latitude in fulfilling its
obligation to review agency disciplinary actions. The role of judicial
review is only to ascertain if the Board has met the CSRA’s minimum
standards. There is nothing arbitrary about the Board’s decision to
independently review prior violations. Neither the Federal Circuit nor
respondent has suggested that the Board has applied its policy inconsist-
ently or that it lacks reasons for its approach. Nor is independent
Board review contrary to any law. The Federal Circuit’s reference to
Douglas v. Veterans Admin., 5 M. S. P. B. 313, which sets out the frame-
work for reviewing disciplinary actions, is a way of describing the
Board’s review process, not, as respondent suggests, an indication that
the Board violated § 7701(c)(1)(B). More important, any suggestion
that independent review by the Board violates that section’s preponder-
ance of the evidence standard would be incorrect. The Board has its
own mechanism for allowing agencies to meet their statutory burden of
justifying all violations supporting a penalty. Insofar as Bolling review
is adequate, an agency may meet its burden by prevailing either in
grievance or before the Board. Independent review also does not vio-
late the CSRA’s general statutory scheme, which allows Board review
of serious, but not minor, disciplinary actions. Where a termination is
based on a series of disciplinary actions, some of which are minor, the
Board’s authority to review the termination must also include the au-
thority to review each of the prior disciplinary actions to establish the
penalty’s reasonableness. Any effects of such review on pending griev-
ance procedures result from the CSRA’s parallel review structures. If
the Board’s independent review procedure is adequate, the review that
an employee receives is fair. Although that procedure’s fairness is not
before this Court, a presumption of regularity attaches to Government
agencies’ actions, and some deference to agency disciplinary actions is
appropriate. Pp. 6–10.
2. Because the Board does not rely upon disciplinary actions that
were overturned in grievance proceedings at the time of its review, a
remand to the Federal Circuit is necessary to determine the effect that
the reversal of one of respondent’s disciplinary actions had on her termi-
nation. Pp. 10–11.
212 F. 3d 1296, vacated and remanded.

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3 Cite as: 534 U. S. 1 (2001)
Opinion of the Court
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Breyer,
JJ., joined. Thomas, J., filed a concurring opinion, post, p. 11. Gins-
burg, J., filed an opinion concurring in the judgment, post, p. 14.
Gregory G. Garre argued the cause for petitioner. With
him on the briefs were Solicitor General Olson, former Act-
ing Solicitor General Underwood, Acting Assistant Attor-
ney General Schiffer, Deputy Solicitor General Clement,
David M. Cohen, Todd M. Hughes, David B. Stinson, Mary
Anne Gibbons, Lori J. Dym, and Stephan J. Boardman.
Henk Brands argued the cause and filed a brief for
respondent.*
Justice O’Connor delivered the opinion of the Court.
The Civil Service Reform Act of 1978 allows eligible em-
ployees to appeal termination and other serious disciplinary
actions to the Merit Systems Protection Board. 5 U. S. C.
§§ 7512–7513. The Federal Circuit ruled that, when assess-
ing the reasonableness of these actions, the Board may not
consider prior disciplinary actions that are pending in collec-
tively bargained grievance proceedings. 212 F. 3d 1296,
1298 (2000). Because the Board has broad discretion in de-
termining how to review prior disciplinary actions and need
not adopt the Federal Circuit’s rule, we now vacate and re-
mand for further proceedings.
I
Respondent Maria Gregory worked for petitioner United
States Postal Service as a letter technician with responsibil-
*Briefs of amici curiae urging affirmance were filed for the American
Federation of Government Employees, AFL–CIO, by Mark D. Roth and
Charles A. Hobbie; for the National Association of Letter Carriers, AFL–
CIO, by Keith E. Secular; for the National Employment Lawyers Associa-
tion by Edward H. Passman and Paula A. Brantner; and for the National
Treasury Employees Union by Gregory O’Duden, Barbara A. Atkin, and
Kerry L. Adams.

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4 POSTAL SERVICE v. GREGORY
Opinion of the Court
ity for overseeing letter carriers on five mail routes, and
serving as a replacement carrier on those routes. App. to
Pet. for Cert. A–15. On April 7, 1997, respondent left work
early to take her daughter to the doctor, ignoring her super-
visor’s instructions to sort the mail for her route before leav-
ing. She received a letter of warning for insubordination.
App. 47–48. Respondent filed a grievance under the proce-
dure established in the collective bargaining agreement be-
tween her union and her employer, see generally 1998–2001
Agreement Between National Association of Letter Carri-
ers, AFL–CIO and U. S. Postal Service, Art. 15. App. 43.
Later that same month respondent was cited for delaying
the mail, after mail from another route was found in her
truck at the end of the day. Id., at 45–46. The Postal Serv-
ice suspended her for seven days, and respondent filed a sec-
ond grievance. Id., at 41–42. In August 1997, respondent
was again disciplined for various violations, including failing
to deliver certified mail and attempting to receive unauthor-
ized or unnecessary overtime. Id., at 38–40. She received
a 14-day suspension, and again filed a grievance.
While these three disciplinary actions were pending in
grievance proceedings pursuant to the collective bargaining
agreement, respondent was disciplined one final time. On
September 13, 1997, respondent filed a form requesting as-
sistance in completing her route or, alternatively, 31 ⁄ 2 hours of
overtime. Considering this request excessive, respondent’s
supervisor accompanied her on her route and determined
that she had overestimated the necessary overtime by more
than an hour. Id., at 31–33. In light of this violation and
respondent’s previous violations, her supervisor recom-
mended that she be removed from her employment at the
Postal Service. Ibid. On November 17, 1997, the Postal
Service ordered respondent’s termination effective nine days
later. Id., at 24–29.
Because respondent previously served in the Army, she
falls into the category of “preference eligible” Postal Service

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5 Cite as: 534 U. S. 1 (2001)
Opinion of the Court
employees covered by the Civil Service Reform Act of 1978
(CSRA). 5 U. S. C. § 7511(a)(1)(B)(ii). The CSRA provides
covered employees the opportunity to appeal removals and
other serious disciplinary actions to the Merit Systems Pro-
tection Board (Board). §§ 7512–7513. Under the CSRA,
respondent could appeal her termination to the Board or
seek relief through the negotiated grievance procedure, but
could not do both. § 7121(e)(1). Respondent chose to ap-
peal to the Board.
When an employing agency’s disciplinary action is chal-
lenged before the Board, the agency bears the burden of
proving its charge by a preponderance of the evidence.
§ 7701(c)(1)(B). Under the Board’s settled procedures, this
requires proving not only that the misconduct actually oc-
curred, but also that the penalty assessed was reasonable in
relation to it. Douglas v. Veterans Admin., 5 M. S. P. B.
313, 333–334 (1981).
Following these guidelines, a Board Administrative Law
Judge (ALJ) upheld respondent’s termination, concluding
that the Postal Service had shown that respondent overesti-
mated her overtime beyond permissible limits on September
13, App. to Pet. for Cert. A–29, and that her termination was
reasonable in light of this violation and her prior violations.
Id., at A–36 to A–40. Although the three prior disciplinary
actions were the subject of pending grievances, the ALJ ana-
lyzed them independently, following the approach set forth
in Bolling v. Department of Air Force, 8 M. S. P. B. 658
(1981). Bolling provides for de novo review of prior discipli-
nary actions unless: “(1) [the employee] was informed of the
action in writing; (2) the action is a matter of record; and
(3) [the employee] was given the opportunity to dispute the
charges to a higher level than the authority that imposed the
discipline.” Id., at 660–661. If these conditions are met,
Board review of prior disciplinary action is limited to deter-
mining whether the action is clearly erroneous. Id., at 660.
After finding that respondent’s three prior disciplinary ac-

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6 POSTAL SERVICE v. GREGORY
Opinion of the Court
tions met Bolling’s three conditions, the ALJ concluded that
there was no clear evidence of error. App. to Pet. for
Cert. A–37.
Respondent petitioned the Board for review of the ALJ’s
decision. While this appeal was pending, an arbitrator re-
solved respondent’s first grievance (relating to the April 7
incident) in her favor, and ordered that the letter of warning
be expunged. App. 3–16. Respondent did not advise the
Board of that ruling. The Board then denied her request
for review of the ALJ’s determination. App. to Pet. for
Cert. A–9 to A–10.
Respondent petitioned for review of the Board’s decision
in the United States Court of Appeals for the Federal Cir-
cuit. 5 U. S. C. § 7703(a). That court affirmed the Board’s
decision to uphold the ALJ’s factual findings with respect to
the September 13 incident. 212 F. 3d, at 1299. Taking judi-
cial notice of the fact that one of the three disciplinary ac-
tions underlying respondent’s termination had been over-
turned in arbitration, and noting that respondent’s two
remaining grievances were still pending, it reversed the
Board’s determination that the penalty was reasonable.
Ibid. While recognizing that disciplinary history is an “im-
portant factor” in assessing any penalty, id., at 1300, the Fed-
eral Circuit held that “prior disciplinary actions that are sub-
ject to ongoing proceedings may not be used to support” a
penalty’s reasonableness, id., at 1298. It therefore vacated
the Board’s decision in part and remanded for further pro-
ceedings. Id., at 1300. We granted certiorari, 531 U. S.
1143 (2001).
II
The Federal Circuit’s statutory review of the substance of
Board decisions is limited to determining whether they are
unsupported by substantial evidence or are “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U. S. C. § 7703(c). Like its counterpart in the
Administrative Procedure Act, 5 U. S. C. § 706(2), the arbi-

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Opinion of the Court
trary and capricious standard is extremely narrow, Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416
(1971), and allows the Board wide latitude in fulfilling its
obligation to review agency disciplinary actions. It is not
for the Federal Circuit to substitute its own judgment for
that of the Board. Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983). The role of judicial review is only to
ascertain if the Board has met the minimum standards set
forth in the statute. We conclude that the Board need not
adopt the Federal Circuit’s rule in order to meet these
standards.
The Postal Service argues that the Board’s independent
review of prior disciplinary actions is sufficient to meet its
statutory obligations. The adequacy of the Board’s particu-
lar review mechanism—Bolling review, see Bolling v. De-
partment of Air Force, supra—is not before us. The Fed-
eral Circuit said nothing about Bolling, instead adopting a
sweeping rule that the Board may never rely on prior disci-
plinary actions subject to ongoing grievance procedures, re-
gardless of the sort of independent review the Board pro-
vides. Respondent likewise asks this Court only to uphold
the Federal Circuit’s rule forbidding independent Board re-
view. She does not seek a ruling requiring a different
Board review mechanism, nor did she do so before the Fed-
eral Circuit. Her brief in that court mentioned neither
Bolling nor its standard, arguing only that the Board should
hold off its review altogether pending the outcome of collec-
tively bargained grievance proceedings. Brief for Peti-
tioner in No. 00–3123 (CA Fed.), p. 2. Moreover, even if the
adequacy of Bolling review were before us, we lack sufficient
briefing on its specific functioning in this case. We thus con-
sider only whether the Board may permissibly review prior
disciplinary actions subject to ongoing grievance procedures
independently, not whether the particular way in which it
does so meets the statutory standard.

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8 POSTAL SERVICE v. GREGORY
Opinion of the Court
There is certainly nothing arbitrary about the Board’s de-
cision to independently review prior disciplinary violations.
Neither the Federal Circuit nor respondent has suggested
that the Board has applied this policy inconsistently—indeed,
the Board has taken this same approach for 19 years. See
Carr v. Department of Air Force, 9 M. S. P. B. 714 (1982).
Nor have they argued that the Board lacks reasons for its
approach. Following the Federal Circuit’s rule would re-
quire the Board either to wait until challenges to disciplinary
actions pending in grievance proceedings are completed be-
fore rendering its decision, or to ignore altogether the viola-
tions being challenged in grievance in determining the rea-
sonableness of the penalty. The former may cause undue
delay. See Reply Brief for Petitioner 6–7. The latter
would, in many cases, effectively preclude agencies from re-
lying on an employee’s disciplinary history, which the Fed-
eral Circuit itself acknowledged to be an “important factor”
in any disciplinary decision. 212 F. 3d, at 1300.
Nor is independent review by the Board contrary to any
law. The Federal Circuit cited no provision of the CSRA or
any other statute to justify its new rule. Id., at 1299–1300.
At oral argument in this Court, respondent’s counsel pointed
to the Federal Circuit’s statement that, if pending grievances
were later overturned in arbitration, “the foundation of the
Board’s Douglas analysis would be compromised.” Tr. of
Oral Arg. 49; 212 F. 3d, at 1300 (citing Douglas v. Veterans
Admin., 5 M. S. P. B. 313 (1981)). The Board’s Douglas deci-
sion set out a general framework for reviewing agency disci-
plinary actions. Because Douglas at one point specifically
discussed 5 U. S. C. § 7701(c)(1)(B), the CSRA provision plac-
ing the burden of proof on the employing agency to justify
its disciplinary action, counsel claimed, the Federal Circuit
must have thought the Board’s policy violates that section.
Tr. of Oral Arg. 49. We do not read the Federal Circuit’s
citation of Douglas as an implicit reference to § 7701(c)(1)(B),
particularly given that the Federal Circuit’s opinion nowhere

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Opinion of the Court
mentions that section’s standard. Rather, we interpret the
Federal Circuit’s reference to Douglas as a way of describing
the entire process of Board review of disciplinary actions.
More importantly, any suggestion that the Board’s decision
to independently review prior disciplinary actions violates
§ 7701(c)(1)(B)’s preponderance of the evidence standard
would be incorrect. To the extent that that standard places
the burden upon employing agencies to justify all of the vio-
lations—including those dealt with in prior disciplinary ac-
tions—that are the basis for the penalty, the Board has its
own mechanism for allowing agencies to meet that burden.
Insofar as Bolling review is adequate to meet this burden of
proof, an employing agency may meet its statutory burden
to justify prior actions by prevailing either in grievance or
before the Board.
Amicus National Treasury Employees Union (NTEU)
argues that independent Board review of prior disciplinary
actions pending in grievance violates the CSRA’s general
statutory scheme. Brief for National Treasury Employees
Union as Amicus Curiae 8–12. Employees covered by the
CSRA may elect Board review only for disciplinary actions
of a certain seriousness, such as termination, suspension for
more than 14 days, or a reduction in grade or pay. 5 U. S. C.
§§ 7512–7513. For more minor actions, workers may only
seek review through negotiated grievance procedures, if they
exist. § 7121. According to NTEU, this scheme deprives
the Board of the statutory authority to review minor discipli-
nary actions like the three that were pending in this case.
It is true that the CSRA contemplates that at least some
eligible employees (those represented by unions) will have
two different forums for challenging disciplinary actions,
depending in part on their seriousness. If the Board had
attempted to review respondent’s first disciplinary action
before she was terminated, it would have exceeded its
statutory authority. In this case, however, the Board was
asked to review respondent’s termination, something it

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10 POSTAL SERVICE v. GREGORY
Opinion of the Court
clearly has authority to do. §§ 7512–7513. Because this
termination was based on a series of disciplinary actions,
some of which are minor, the Board’s authority to review the
termination must also include the authority to review each
of the prior disciplinary actions to establish the reasonable-
ness of the penalty as a whole.
Independent Board review of disciplinary actions pending
in grievance proceedings may at times result in the Board
reaching a different conclusion than the arbitrator. It may
also result in a terminated employee never reaching a reso-
lution of her grievance at all, because some collective bar-
gaining agreements require unions to withdraw grievances
when an employee’s termination becomes final before the
Board. Brief for Respondent 10–11, 37; Reply Brief for
Petitioner 14. Rather than being inconsistent with the stat-
utory scheme, however, these possibilities are the result of
the parallel structures of review set forth in the CSRA.
Such results are not necessarily unfair. Any employee
who appeals a disciplinary action to the Board receives in-
dependent Board review. If the Board’s mechanism for
reviewing prior disciplinary actions is itself adequate, the
review such an employee receives is fair. Although the
fairness of the Board’s own procedure is not before us, we
note that a presumption of regularity attaches to the actions
of Government agencies, United States v. Chemical Founda-
tion, Inc., 272 U. S. 1, 14–15 (1926), and that some deference
to agency disciplinary actions is appropriate.
III
Although the Board independently reviews prior discipli-
nary actions pending in grievance, it also has a policy of not
relying upon disciplinary actions that have already been
overturned in grievance proceedings at the time of Board
review. See Jones v. Department of Air Force, 24 MSPR
429, 431 (1984). As one of respondent’s disciplinary actions
was overturned in arbitration before the Board rendered its

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11 Cite as: 534 U. S. 1 (2001)
Thomas, J., concurring
decision, the Postal Service concedes that a remand to the
Federal Circuit is necessary to determine the effect of this
reversal on respondent’s termination. Reply Brief for Peti-
tioner 15–16.
The judgment of the United States Court of Appeals for
the Federal Circuit is therefore vacated, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
While I join the Court’s opinion as far as it goes, it does
not go far enough. The Court concludes that the adequacy
of the mechanism the Merit Systems Protection Board used
to review prior disciplinary actions pending in collectively
bargained grievance proceedings (the so-called Bolling
framework) is a question “not before us.” Ante, at 7. I
think it is.
The Federal Circuit below held that the Board, in assess-
ing the reasonableness of petitioner’s decision to terminate
respondent, abused its discretion by relying upon prior disci-
plinary actions that were pending in collectively bargained
grievance proceedings. 212 F. 3d 1296, 1300 (2000).
Petitioner now contests the Federal Circuit’s holding by
arguing that the Board’s consideration of prior disciplinary
actions subject to pending grievances does not constitute an
abuse of discretion because the Board’s use of the Bolling
framework, see Bolling v. Department of Air Force, 8
M. S. P. B. 658 (1981), provides employees with more than
adequate procedural safeguards.1 Brief for Petitioner 27–
28. Respondent, by contrast, counters that the Bolling
framework not only is insufficient to prevent the “unfair-
1 Petitioner’s argument is certainly quite relevant here as the Board
Administrative Law Judge below considered prior disciplinary actions in
respondent’s case pursuant to the Bolling framework. See ante, at 5–6;
App. to Pet. for Cert. A–36 to A–37.

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12 POSTAL SERVICE v. GREGORY
Thomas, J., concurring
ness” inherent in the Board’s consideration of prior discipli-
nary actions subject to pending grievances, but also is incon-
sistent with the agency’s statutory burden to show that its
decision is supported by a “preponderance of the evidence.”
See Brief for Respondent 34–37. Properly disposing of this
case requires that we address these arguments.2
This is not a difficult task because the Bolling framework
provides federal employees with more than adequate proce-
dural safeguards. Title 5 U. S. C. § 7503(b), for instance, sets
forth the basic procedural protections to which employees
receiving minor discipline are entitled pursuant to the Civil
Service Reform Act of 1978 (CSRA).3 Conspicuously absent
from the statutory provision is any opportunity to appeal a
minor disciplinary action to the Board. Thus, as petitioner
points out, “it can hardly be said that the Bolling framework
for collateral review of prior discipline conflicts with the
CSRA, when Congress chose not to provide for any [Board]
review of minor disciplinary actions.” See Reply Brief for
Petitioner 12–13 (emphasis in original).
Respondent’s argument that the Bolling framework con-
flicts with the “preponderance of the evidence” standard set
forth in 5 U. S. C. § 7701(c)(1)(B) is also unavailing. The logi-
cal consequence of respondent’s position is that the Board
2 The Court accurately notes that respondent’s brief in the Federal Cir-
cuit merely argued that the Board erred by relying upon prior disciplinary
actions and nowhere mentioned the Bolling framework. See ante, at 7.
Petitioner, however, has put the Bolling framework squarely into play
by relying upon it to support its contention that the Board’s practice of
considering prior disciplinary actions is not an abuse of discretion. Given
that petitioner, in defending the Board’s practice, raises the Bolling frame-
work for the first time in this Court, respondent surely has not waived
her right to argue that the protections provided by the Bolling framework
are inadequate to save the practice invalidated by the Federal Circuit.
3 This statutory provision applies to suspensions for 14 days or less. 5
U. S. C. § 7503(a). Respondent’s prior disciplinary actions pending in
grievance proceedings fall into this category.

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Thomas, J., concurring
would be required to review de novo all facts supporting all
prior disciplinary actions relied upon by an agency to justify
the reasonableness of a penalty, whether or not the prior
actions were ever grieved.4 Nothing in the CSRA supports
this rather remarkable proposition. At most, the statute re-
quires an agency to prove the existence of prior disciplinary
actions; it does not place the burden on the agency to prove
the facts underlying those actions.
The central flaw in the Federal Circuit’s decision is that it
relies on the mistaken assumption that the Board’s review
process and collectively bargained grievance proceedings are
somehow linked. 212 F. 3d, at 1300. This assumption is not
supported by the CSRA. Under the statute, the Board’s re-
view process and collectively bargained grievance proce-
dures constitute entirely separate structures. As a result,
the Board need not wait for an employee’s pending griev-
ances to be resolved before taking account of prior discipli-
nary actions in its assessment of the reasonableness of a pen-
alty given in a subsequent disciplinary action.5
4 Justice Ginsburg’s suggestion to the contrary, see post, at 16, n. 2
(opinion concurring in judgment), rests on the assumption that the Board’s
review process and collectively bargained grievance proceedings are some-
how linked. As explained infra this page, such an assumption is errone-
ous. Title 5 U. S. C. § 7701(c)(1)(B) either requires an agency to prove by
a preponderance of the evidence all facts supporting all prior disciplinary
actions relied upon by an agency or it does not. Whether an employee
has chosen to access collectively bargained grievance proceedings with
respect to a prior disciplinary action is irrelevant to answering this ques-
tion. Indeed, Justice Ginsburg’s reasoning still suggests that the
Board must review de novo all facts supporting all prior minor disciplinary
actions relied upon by agencies in cases where employees are not repre-
sented by a union as such employees have no ability to access collectively
bargained grievance proceedings. Such a requirement, however, is no-
where to be found in the CSRA.
5 Neither would it be, as Justice Ginsburg intimates, “arbitrary and
capricious” for the Board to disregard an arbitrator’s reversal of a prior
disciplinary action. Post, at 15 (opinion concurring in judgment). Such

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14 POSTAL SERVICE v. GREGORY
Ginsburg, J., concurring in judgment
For these reasons, I agree with the Court’s decision to
vacate the judgment of the Federal Circuit and remand for
further proceedings.6
Justice Ginsburg, concurring in the judgment.
Although I join the Court’s judgment, I do so on grounds
not stated in the Court’s opinion. I note first that under
Bolling v. Department of Air Force, the Board’s review of
prior disciplinary actions pending in negotiated grievance
proceedings requires, in cases like this one, only that the
Board determine whether an agency action was “clearly er-
roneous.” 8 M. S. P. B. 658, 660 (1981). This summary and
highly deferential standard is arguably inconsistent with the
statutory requirement that the Board sustain a decision of
an agency “only if . . . [it] is supported by a preponderance
of the evidence.” 5 U. S. C. § 7701(c)(1)(B). The Court
maintains that the adequacy of Bolling review to meet
an argument, like the Federal Circuit’s holding below, rests on the errone-
ous premise that the CSRA inextricably ties together the Board’s review
process and collectively bargained grievance proceedings. To be sure, the
Board has chosen to link its review to collectively bargained grievance
proceedings—at least to some extent—by adopting a policy of not relying
upon disciplinary actions that have been reversed through grievance pro-
ceedings. Cf. Jones v. Department of Air Force, 24 MSPR 429, 430–431
(1984). But the Board is not required to do so. Neither Justice Gins-
burg nor the Federal Circuit cites any statutory provision mandating that
the Board must take this step. The CSRA simply establishes no link
between the Board’s review process, which is designed to protect an em-
ployee’s statutory rights, and grievance proceedings, which adjudicate
rights secured through collective-bargaining agreements. As the Court
points out: “Independent Board review of disciplinary actions . . . may at
times result in the Board reaching a different conclusion than the arbitra-
tor.” Ante, at 10.
6 Given the Board’s stated policy of not relying upon disciplinary actions
that have already been overturned in grievance proceedings at the time
of Board review, see n. 5, supra, I agree that a remand is necessary for
the Federal Circuit to consider the relevance of the fact that one of re-
spondent’s prior disciplinary actions had already been reversed when the
Board finalized its review of her case.

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Ginsburg, J., concurring in judgment
§ 7701(c)(1)(B)’s preponderance of the evidence standard is a
question “not before us.” Ante, at 7, 10. In light of the
unsettled issue, however, I would place no reliance upon the
Board’s “independent review” of prior discipline, see ante, at
7, 8, in this case. Nevertheless, I do not resist the Court’s
remand order for the reasons set out below.
MSPB regulations allow the Board to reopen an appeal
and reconsider its decision “at any time.” 5 CFR § 1201.118
(2001) (“The Board may reopen an appeal and reconsider a
decision of [an administrative judge] on its own motion at
any time, regardless of any other provisions of this part.”).
There is every reason to believe that the Board would reopen
to reconsider a decision that credited a prior disciplinary ac-
tion later overturned in arbitration. See Jones v. Depart-
ment of Air Force, 24 MSPR 429, 431 (1984) (suspension “re-
versed by grievance . . . was effectively cancelled and thus
should not be considered in determining a reasonable pen-
alty for the current charge”).1 Notably, the Postal Service
agrees that the Board may invoke its provision for reopening
“in the event that the employee’s prior disciplinary record
has been revised as the result of a successful grievance.”
Brief for Petitioner 28; see also Tr. of Oral Arg. 22 (counsel
for the Postal Service confirmed Service’s recognition that
“the [B]oard’s regulations permit the [B]oard to reopen any
case at any time to reconsider it in light of a grievance which
may have proved successful”).
Indeed, it might well be “arbitrary and capricious” in such
a situation for the Board to disregard the employee’s revised
record and refuse to reopen. Cf. 18 C. Wright, A. Miller, &
E. Cooper, Federal Practice and Procedure § 4433, p. 311
(1981) (a “judgment based upon the preclusive effects of [a
prior] judgment should not stand if the [prior] judgment is
1 The Board thus comprehends the two schemes—its own review, and
arbitration under the bargained-for grievance procedure—as harmonious
and not, as Justice Thomas does, ante, at 13 (concurring opinion), as
entirely unrelated to each other.

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16 POSTAL SERVICE v. GREGORY
Ginsburg, J., concurring in judgment
reversed”); id., at 312–315; Restatement (Second) of Judg-
ments § 16 and Comment c (1982) (nullification of an earlier
judgment on which a subsequent judgment relied “may be
made the ground for appropriate proceedings for relief from
the later judgment with any suitable provision for restitution
of benefits that may have been obtained under that judg-
ment”); id., § 84 (generally, “a valid and final award by arbi-
tration has the same effects under the rules of res judicata,
subject to the same exceptions and qualifications, as a judg-
ment of a court”).2
Gregory did not bring to the Board’s attention her success-
ful grievance of the Postal Service’s first disciplinary action,
i. e., a letter of warning dated May 13, 1997, based on the
April 7, 1997, incident, see ante, at 4; App. 43, 47–48. Under
the MSPB’s regulations, she may even now ask the Board to
reopen based on the expungement of that action, or the
Board may reopen “on its own motion.” 5 CFR § 1201.118
(2001); see Tr. of Oral Arg. 26 (counsel for the Postal Service
acknowledged that successful grievance of first disciplinary
action “could have been brought to the attention of the
[B]oard and still could be today”). Gregory may also bring
to the Board’s attention any revision resulting from success-
2 Justice Thomas suggests, ante, at 12–13 (concurring opinion), that
Gregory’s argument would logically require the Board to review de novo
any prior disciplinary action upon which the employer relied in removing
an employee, “whether or not the prior actions were ever grieved.” Fail-
ure to pursue an available grievance procedure or other avenue of appeal,
however, would end the matter. It is well settled that one who fails
timely to appeal an adverse decision is bound by that decision in later
proceedings. See, e. g., New Haven Inclusion Cases, 399 U. S. 392, 481
(1970) (holding that a party who “took no appeal” from an adverse order
is “foreclosed by res judicata” from later seeking relief inconsistent with
that order); see also 18 Wright, Miller, & Cooper, § 4433, at 305 (“preclu-
sion cannot be defeated by electing to fo[r]go an available opportunity
to appeal”); id., at 305–308; Restatement (Second) of Judgments § 83 and
Comment a, § 84 and Comment e (in general, administrative adjudica-
tions and arbitration awards have the same preclusive effects as court
judgments).

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17 Cite as: 534 U. S. 1 (2001)
Ginsburg, J., concurring in judgment
ful grievances of the Postal Service’s second and third disci-
plinary actions, i. e., the seven-day suspension ordered on
June 7, 1997, see ante, at 4; App. 41–42, 45–46, and the
fourteen-day suspension ordered on August 7, 1997, see ante,
at 4; App. 38–40.
Gregory asserts that the Postal Service resists arbitration
of her second and third grievances on the ground that under
the collective-bargaining agreement between the Postal
Service and her union, predischarge grievances do not sur-
vive a discharge which has been made final. Brief for Re-
spondent 10–12, and n. 5, 26–27. She does not suggest, how-
ever, that the union is disarmed from bargaining for
postdischarge continuation of grievances through to comple-
tion of arbitration.3
Gregory, moreover, elected to resort to the MSPB “[a]t the
advice of her then-counsel.” Id., at 9. She could have
asked her union to challenge her dismissal before an arbitra-
tor.4 Had she and her union opted for arbitration rather
than MSPB review of the dismissal, she might have fared
better; it appears that a labor arbitrator, in determining the
reasonableness of a penalty, would have accorded no weight
to prior discipline grieved but not yet resolved by a com-
pleted arbitration. See Arbitration Between National
Assn. of Letter Carriers, AFL–CIO, and USPS, Case
No. E94 N–4E–D 96075418, pp. 16–18 (Apr. 19, 1999) (Snow,
Arb.), Lodging of Respondent 57–59 (referring to parties’
“past practice of giving unresolved grievances no standing
in removal hearings,” arbitrator granted a continuance
3 At oral argument counsel for the Postal Service sought to “make clear”
that “if this Court reverses the decision [of the Federal Circuit],” the Serv-
ice “would not object to the continuance of [a] grievance.” Tr. of Oral
Arg. 55.
4 Grievances “may be appealed to . . . arbitration” only “by the certified
representative of the Union.” 1998–2001 Agreement Between National
Association of Letter Carriers, AFL–CIO and U. S. Postal Service, Art.
15, § 4(A)(2).

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18 POSTAL SERVICE v. GREGORY
Ginsburg, J., concurring in judgment
“pending resolution of an underlying disciplinary griev-
ance”); Arbitration Between USPS and National Assn. of
Letter Carriers, AFL–CIO, Case No. D90 N–4D–D 95076768,
pp. 19–21 (Mar. 20, 1996) (Sickles, Arb.), Lodging of Respond-
ent 27–29 (although employing agency need not await resolu-
tion of prior grievances before ordering an employee’s re-
moval, an arbitrator may not take account of prior discipline
until the appeals process has yielded a final resolution); Arbi-
tration Between USPS and National Post Office Mail Han-
dlers, Case No. MC–S–0874–D, p. 7 (June 18, 1977) (Fasser,
Arb.), Lodging of Respondent 7 (“Until th[e] appeal [of a
prior disciplinary action] is finally adjudicated, it has no
standing in this proceeding.” (emphasis added)). Gregory,
having at her own option forgone arbitration proceedings,
in which prior discipline could not weigh against her while
grievances were underway, is not comfortably situated to
complain that the procedure she elected employed a differ-
ent rule.
Given (1) the Board’s reopening regulation, (2) the alterna-
tive arbitration forum Gregory might have pursued, (3) the
Court’s explicit reservation of the question of “the adequacy
of Bolling review,” ante, at 7, 10, and (4) the apparent, incor-
rect view of the Federal Circuit that the Postal Service itself
could not take account of prior disciplinary action that is the
subject of a pending grievance proceeding, see 212 F. 3d
1296, 1299, 1300 (2000),5 I agree that a remand is in order.
5 The petition for certiorari and the brief for petitioner state the ques-
tion presented as follows: “Whether a federal agency, when disciplining or
removing an employee for misconduct pursuant to the Civil Service Re-
form Act of 1978, 5 U. S. C. § 1101 et seq., may take account of prior discipli-
nary actions that are the subject of pending grievance proceedings.” Pet.
for Cert. (I); Brief for Petitioner (I) (emphasis added).

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19 OCTOBER TERM, 2001
Syllabus
TRW INC. v. ANDREWS
certiorari to the united states court of appeals for
the ninth circuit
No. 00–1045. Argued October 9, 2001—Decided November 13, 2001
The Fair Credit Reporting Act (FCRA or Act) requires credit report-
ing agencies, inter alia, to maintain “reasonable procedures” to avoid
improper disclosures of consumer credit information. 15 U. S. C.
§ 1681e(a). The Act’s limitations provision prescribes that an action to
enforce any liability created under the Act must be brought “within two
years from the date on which the liability arises, except that where a
defendant has . . . willfully misrepresented any information required
under [the Act] to be disclosed to [the plaintiff] and the information . . .
is material to [a claim under the Act], the action may be brought at any
time within two years after [the plaintiff ’s] discovery of the misrepre-
sentation.” § 1681p.
Plaintiff-respondent Adelaide Andrews visited a doctor’s office in
Santa Monica, California, and there filled out a form listing her name,
Social Security number, and other basic information. An office recep-
tionist named Andrea Andrews (the Impostor) copied the data and
moved to Las Vegas, where she attempted to open credit accounts using
Andrews’ Social Security number and her own last name and address.
On July 25, September 27, and October 28, 1994, and on January 3,
1995, defendant-petitioner TRW Inc. furnished copies of Andrews’ credit
report to companies from which the Impostor sought credit. Andrews
did not learn of these disclosures until May 31, 1995, when she sought
to refinance her home and in the process received a copy of her credit
report reflecting the Impostor’s activity. She sued TRW for injunctive
and monetary relief on October 21, 1996, alleging that TRW had violated
the Act by failing to verify, predisclosure of her credit report to third
parties, that Adelaide Andrews of Santa Monica initiated the credit
applications or was otherwise involved in the underlying transactions.
TRW moved for partial summary judgment, arguing, inter alia, that
the FCRA’s statute of limitations had expired on Andrews’ claims stem-
ming from TRW’s first two disclosures because both occurred more than
two years before she brought suit. Andrews countered that the limita-
tions period on those claims did not commence until she discovered the
disclosures. The District Court held the two claims time barred, rea-
soning that § 1681p’s explicit exception, which covers only misrepresen-
tation claims, precludes judicial attribution of a broader discovery rule

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20 TRW INC. v. ANDREWS
Syllabus
to the FCRA. The Ninth Circuit reversed, applying what it considered
to be the “general federal rule” that a statute of limitations starts run-
ning when a party knows or has reason to know she was injured, unless
Congress expressly legislates otherwise.
Held:
1. A general discovery rule does not govern § 1681p. That section
explicitly delineates the exceptional case in which discovery triggers the
two-year limitation, and Andrews’ case does not fall within the excep-
tional category. Pp. 27–33.
(a) Even if the Ninth Circuit correctly identified a general presump-
tion in favor of a discovery rule, an issue this case does not oblige this
Court to decide, the Appeals Court significantly overstated the scope
and force of such a presumption. That court placed undue weight on
Holmberg v. Armbrecht, 327 U. S. 392, 397, which stands for the proposi-
tion that equity tolls the statute of limitations in cases of fraud or con-
cealment, but does not establish a general presumption across all con-
texts. The only other cases in which the Court has recognized a
prevailing discovery rule, moreover, were decided in two contexts, la-
tent disease and medical malpractice, “where the cry for [such a] rule is
loudest,” Rotella v. Wood, 528 U. S. 549, 555. See United States v. Ku-
brick, 444 U. S. 111; Urie v. Thompson, 337 U. S. 163. The Court has
also observed that lower federal courts generally apply a discovery rule
when a statute is silent on the issue, but has not adopted that rule as
its own. Further, and beyond doubt, the Court has never endorsed the
Ninth Circuit’s view that Congress can convey its refusal to adopt a
discovery rule only by explicit command, rather than by implication
from the particular statute’s structure or text. Thus, even if the pre-
sumption identified by the Ninth Circuit exists, it would not apply to
the FCRA, for that Act does not govern an area of the law that cries
out for application of a discovery rule and is not silent on the issue of
when the statute of limitations begins to run. Pp. 27–28.
(b) Section 1681p’s text and structure evince Congress’ intent to
preclude judicial implication of a discovery rule. Where Congress ex-
plicitly enumerates certain exceptions to a general prohibition, addi-
tional exceptions are not to be implied, in the absence of evidence of a
contrary legislative intent. Andrus v. Glover Constr. Co., 446 U. S. 608,
616–617. Section 1681p provides that the limitation period generally
runs from the date “liability arises,” subject to a single exception for
cases involving a defendant’s willful misrepresentation of material infor-
mation. It would distort § 1681p’s text to convert the exception into
the rule. See Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U. S. 163, 168. Pp. 28–29.

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21 Cite as: 534 U. S. 19 (2001)
Syllabus
(c) At least equally telling, reading a general discovery rule into
§ 1681p would in practical effect render the express exception superflu-
ous in all but the most unusual circumstances. In the paradigmatic
setting in which a plaintiff requests a credit report and the reporting
agency responds by concealing its wrongdoing, the express exception
would do no work other than that performed by a general discovery
rule. The Court rejects Andrews’ and the Government’s attempt to
give some independent scope to the exception by characterizing it as a
codification of the doctrine of equitable estoppel. The scenario con-
structed by Andrews and the Government to support this characteriza-
tion is unlikely to occur in reality. In any event, Andrews and the Gov-
ernment concede that the independent function one could attribute to
the express exception under their theory would arise only in rare and
egregious cases. Adopting their position would therefore render the
express exception insignificant, if not wholly superfluous, contrary to a
cardinal principle of statutory construction. Pp. 29–31.
(d) Andrews’ two additional arguments in defense of the decision
below are unconvincing. First, her contention that a discovery rule is
expressed in the words framing § 1681p’s general rule—“date on which
the liability arises”—is not compelled by the dictionary definition of
“arise” and is unsupported by this Court’s precedent. Second, An-
drews’ reliance on § 1681p’s legislative history fails to convince the Court
that Congress intended sub silentio to adopt a general discovery rule
in addition to the limited one it expressly provided. Pp. 32–33.
2. Because the issue was not raised or briefed below, this Court does
not reach Andrews’ alternative argument that, even if § 1681p does not
incorporate a general discovery rule, “liability” does not “arise” under
the FCRA when a violation occurs, but only on a sometimes later date
when “actual damages” materialize. The Court notes that the Ninth
Circuit has not adopted Andrews’ argument and the Government does
not join her in advancing it here. In any event, it is doubtful that the
argument, even if valid, would aid Andrews in this case. Pp. 33–35.
225 F. 3d 1063, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ.,
joined. Scalia, J., filed an opinion concurring in the judgment, in which
Thomas, J., joined, post, p. 35.
Glen D. Nager argued the cause for petitioner. With him
on the briefs was Daniel H. Bromberg.

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22 TRW INC. v. ANDREWS
Opinion of the Court
Andrew Ryan Henderson argued the cause for respondent.
With him on the brief were Carlyle W. Hall, Jr., and Gerald
L. Sauer.
Kent L. Jones argued the cause for the United States et al.
as amici curiae urging affirmance. On the brief were Act-
ing Solicitor General Underwood, Deputy Solicitor General
Wallace, Edward C. DuMont, John D. Graubert, John F.
Daly, and Lawrence DeMille-Wagman.*
Justice Ginsburg delivered the opinion of the Court.
This case concerns the running of the two-year statute of
limitations governing suits based on the Fair Credit Report-
ing Act (FCRA or Act), as added, 84 Stat. 1127, and
amended, 15 U. S. C. § 1681 et seq. (1994 ed. and Supp. V).1
The time prescription appears in § 1681p, which sets out a
general rule and an exception. Generally, an action to en-
force any liability created by the Act may be brought “within
two years from the date on which the liability arises.” The
exception covers willful misrepresentation of “any informa-
tion required under [the Act] to be disclosed to [the plain-
tiff]”: When such a representation is material to a claim
under the Act, suit may be brought “within two years after
[the plaintiff ’s] discovery . . . of the misrepresentation.”
Section 1681p’s exception is not involved in this case; the
complaint does not allege misrepresentation of information
that the FCRA “require[s] . . . to be disclosed to [the plain-
tiff].” Plaintiff-respondent Adelaide Andrews nevertheless
contends, and the Ninth Circuit held, that § 1681p’s gener-
ally applicable two-year limitation commenced to run on
*Richard J. Rubin, Joanne S. Faulkner, Willard P. Ogburn, Deborah
M. Zuckerman, Stacy J. Canan, and Michael R. Schuster filed a brief for
the National Association of Consumer Advocates et al. as amici curiae
urging affirmance.
1 Congress has revised the FCRA extensively since the events at issue,
but has not altered the provisions material to this case.

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23 Cite as: 534 U. S. 19 (2001)
Opinion of the Court
Andrews’ claims only upon her discovery of defendant-
petitioner TRW Inc.’s alleged violations of the Act.
We hold that a discovery rule does not govern § 1681p.
That section explicitly delineates the exceptional case in
which discovery triggers the two-year limitation. We are
not at liberty to make Congress’ explicit exception the gen-
eral rule as well.
I
A
Congress enacted the FCRA in 1970 to promote efficiency
in the Nation’s banking system and to protect consumer pri-
vacy. See 15 U. S. C. § 1681(a) (1994 ed.). As relevant here,
the Act seeks to accomplish those goals by requiring credit
reporting agencies to maintain “reasonable procedures” de-
signed “to assure maximum possible accuracy of the informa-
tion” contained in credit reports, § 1681e(b), and to “limit the
furnishing of [such reports] to” certain statutorily enumer-
ated purposes, § 1681e(a); 15 U. S. C. § 1681b (1994 ed. and
Supp. V). The Act creates a private right of action allowing
injured consumers to recover “any actual damages” caused
by negligent violations and both actual and punitive damages
for willful noncompliance. See 15 U. S. C. §§ 1681n, 1681o
(1994 ed.).2
B
The facts of this case are for the most part undisputed.
On June 17, 1993, Adelaide Andrews visited a radiologist’s
office in Santa Monica, California. She filled out a new pa-
tient form listing certain basic information, including her
name, birth date, and Social Security number. Andrews
handed the form to the office receptionist, one Andrea An-
drews (the Impostor), who copied the information and there-
after moved to Las Vegas, Nevada. Once there, the Impos-
2 Under 1996 amendments to § 1681n, a plaintiff may also recover statu-
tory damages of between $100 and $1,000 for willful violations. See 15
U. S. C. § 1681n(a)(1)(A) (1994 ed., Supp. V).

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24 TRW INC. v. ANDREWS
Opinion of the Court
tor attempted on numerous occasions to open credit accounts
using Andrews’ Social Security number and her own last
name and address.
On four of those occasions, the company from which the
Impostor sought credit requested a report from TRW. Each
time, TRW’s computers registered a match between An-
drews’ Social Security number, last name, and first initial
and therefore responded by furnishing her file. TRW thus
disclosed Andrews’ credit history at the Impostor’s request
to a bank on July 25, 1994; to a cable television company on
September 27, 1994; to a department store on October 28,
1994; and to another credit provider on January 3, 1995. All
recipients but the cable company rejected the Impostor’s ap-
plications for credit.
Andrews did not learn of these disclosures until May 31,
1995, when she sought to refinance her home mortgage and
in the process received a copy of her credit report reflect-
ing the Impostor’s activity. Andrews concedes that TRW
promptly corrected her file upon learning of its mistake.
She alleges, however, that the blemishes on her report not
only caused her inconvenience and emotional distress, they
also forced her to abandon her refinancing efforts and settle
for an alternative line of credit on less favorable terms.
On October 21, 1996, almost 17 months after she discov-
ered the Impostor’s fraudulent conduct and more than two
years after TRW’s first two disclosures, Andrews filed suit
in the United States District Court for the Central District
of California. Her complaint stated two categories of
FCRA claims against TRW, only the first of which is relevant
here.3 See App. 15–17. Those claims alleged that TRW’s
3 The second alleged that TRW had collected information about the Im-
postor’s activities and inaccurately attributed that activity to Andrews, in
violation of its obligation under § 1681e(b) to “follow reasonable procedures
to assure maximum possible accuracy of the information concerning the

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25 Cite as: 534 U. S. 19 (2001)
Opinion of the Court
four disclosures of her information in response to the Impos-
tor’s credit applications were improper because TRW failed
to verify, predisclosure, that Adelaide Andrews of Santa
Monica initiated the requests or was otherwise involved in
the underlying transactions. Andrews asserted that by
processing requests that matched her profile on Social Secu-
rity number, last name, and first initial but did not corre-
spond on other key identifiers, notably birth date, address,
and first name, TRW had facilitated the Impostor’s identity
theft. According to Andrews, TRW’s verification failure
constituted a willful violation of § 1681e(a), which requires
credit reporting agencies to maintain “reasonable proce-
dures” to avoid improper disclosures. She sought injunctive
relief, punitive damages, and compensation for the “expendi-
ture of time and money, commercial impairment, inconven-
ience, embarrassment, humiliation and emotional distress”
that TRW had allegedly inflicted upon her. App. 15–16.
TRW moved for partial summary judgment, arguing, inter
alia, that the FCRA’s statute of limitations had expired on
Andrews’ claims based on the July 25 and September 27,
1994, disclosures because both occurred more than two years
before she brought suit. Andrews countered that her claims
as to all four disclosures were timely because the limitations
period did not commence until May 31, 1995, the date she
learned of TRW’s alleged wrongdoing. The District Court,
agreeing with TRW that § 1681p does not incorporate a gen-
eral discovery rule, held that relief stemming from the July
and September 1994 disclosures was time barred. Andrews
individual about whom [a] report relates.” A jury resolved this claim in
favor of TRW.
The complaint also stated FCRA claims against Trans Union Corpora-
tion, another credit reporting agency involved in the Impostor’s conduct.
In addition, Andrews brought a state-law claim against each defendant.
The resolution of these claims is not at issue here.

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26 TRW INC. v. ANDREWS
Opinion of the Court
v. Trans Union Corp., 7 F. Supp. 2d 1056, 1066–1067 (CD
Cal. 1998).4
The Court of Appeals for the Ninth Circuit reversed this
ruling, applying what it considered to be the “general federal
rule . . . that a federal statute of limitations begins to run
when a party knows or has reason to know that she was
injured.” 225 F. 3d 1063, 1066 (2000). The court rejected
the District Court’s conclusion that the text of § 1681p, and
in particular the limited exception set forth in that section,
precluded judicial attribution of such a rule to the FCRA.
“[U]nless Congress has expressly legislated otherwise,” the
Ninth Circuit declared, “the equitable doctrine of discovery
is read into every federal statute of limitations.” Id., at
1067 (internal quotation marks omitted). Finding no such
express directive, the Court of Appeals held that “none of
[Andrews’] injuries were stale when suit was brought.” Id.,
at 1066. Accordingly, the court reinstated Andrews’ im-
proper disclosure claims and remanded them for trial.
In holding that § 1681p incorporates a general discovery
rule, the Ninth Circuit parted company with four other Cir-
cuits; those courts have concluded that a discovery exception
other than the one Congress expressed may not be read into
the Act. See Clark v. State Farm Fire & Casualty Ins. Co.,
54 F. 3d 669 (CA10 1995); Rylewicz v. Beaton Servs., Ltd.,
888 F. 2d 1175 (CA7 1989); Houghton v. Insurance Crime
Prevention Institute, 795 F. 2d 322 (CA3 1986); Clay v. Equi-
fax, Inc., 762 F. 2d 952 (CA11 1985). We granted certiorari
to resolve this conflict, 532 U. S. 902 (2001), and now reverse.
4 The District Court also granted summary judgment to TRW on the
two remaining improper disclosure claims, reasoning that TRW main-
tained adequate procedures and that the disputed disclosures had been
made for a permissible purpose as defined by § 1681b. See Andrews v.
Trans Union Corp., 7 F. Supp. 2d, at 1068–1071. The Ninth Circuit re-
versed that ruling. 225 F. 3d 1063, 1067–1068 (2000). Such questions,
the Appeals Court held, “needed determination by a jury not a judge.”
Id., at 1068.

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27 Cite as: 534 U. S. 19 (2001)
Opinion of the Court
II
The Court of Appeals rested its decision on the premise
that all federal statutes of limitations, regardless of context,
incorporate a general discovery rule “unless Congress has
expressly legislated otherwise.” 225 F. 3d, at 1067. To the
extent such a presumption exists, a matter this case does not
oblige us to decide, the Ninth Circuit conspicuously over-
stated its scope and force.
The Appeals Court principally relied on our decision in
Holmberg v. Armbrecht, 327 U. S. 392 (1946). See 225 F. 3d,
at 1067. In that case, we instructed with particularity that
“where a plaintiff has been injured by fraud and remains in
ignorance of it without any fault or want of diligence or care
on his part, the bar of the statute does not begin to run
until the fraud is discovered.” Holmberg, 327 U. S., at 397
(internal quotation marks omitted). Holmberg thus stands
for the proposition that equity tolls the statute of limitations
in cases of fraud or concealment; it does not establish a gen-
eral presumption applicable across all contexts. The only
other cases in which we have recognized a prevailing discov-
ery rule, moreover, were decided in two contexts, latent dis-
ease and medical malpractice, “where the cry for [such a] rule
is loudest,” Rotella v. Wood, 528 U. S. 549, 555 (2000). See
United States v. Kubrick, 444 U. S. 111 (1979); Urie v.
Thompson, 337 U. S. 163 (1949).
We have also observed that lower federal courts “gener-
ally apply a discovery accrual rule when a statute is silent
on the issue.” Rotella, 528 U. S., at 555; see also Klehr v.
A. O. Smith Corp., 521 U. S. 179, 191 (1997) (citing Connors
v. Hallmark & Son Coal Co., 935 F. 2d 336, 342 (CADC 1991),
for the proposition that “federal courts generally apply [a]
discovery accrual rule when [the] statute does not call for a
different rule”). But we have not adopted that position as
our own. And, beyond doubt, we have never endorsed the
Ninth Circuit’s view that Congress can convey its refusal to
adopt a discovery rule only by explicit command, rather than

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28 TRW INC. v. ANDREWS
Opinion of the Court
by implication from the structure or text of the particular
statute.
The Ninth Circuit thus erred in holding that a generally
applied discovery rule controls this case. The FCRA does
not govern an area of the law that cries out for application
of a discovery rule, nor is the statute “silent on the issue” of
when the statute of limitations begins to run. Section 1681p
addresses that precise question; the provision reads:
“An action to enforce any liability created under [the
Act] may be brought . . . within two years from the date
on which the liability arises, except that where a defend-
ant has materially and willfully misrepresented any in-
formation required under [the Act] to be disclosed to
an individual and the information so misrepresented is
material to the establishment of the defendant’s liability
to that individual under [the Act], the action may be
brought at any time within two years after discovery by
the individual of the misrepresentation.”
We conclude that the text and structure of § 1681p evince
Congress’ intent to preclude judicial implication of a discov-
ery rule.
“Where Congress explicitly enumerates certain exceptions
to a general prohibition, additional exceptions are not to be
implied, in the absence of evidence of a contrary legislative
intent.” Andrus v. Glover Constr. Co., 446 U. S. 608, 616–
617 (1980). Congress provided in the FCRA that the two-
year statute of limitations runs from “the date on which the
liability arises,” subject to a single exception for cases in-
volving a defendant’s willful misrepresentation of material
information. § 1681p. The most natural reading of § 1681p
is that Congress implicitly excluded a general discovery rule
by explicitly including a more limited one. See Leatherman
v. Tarrant County Narcotics Intelligence and Coordination
Unit, 507 U. S. 163, 168 (1993) (“Expressio unius est exclusio
alterius.”). We would distort § 1681p’s text by converting

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29 Cite as: 534 U. S. 19 (2001)
Opinion of the Court
the exception into the rule. Cf. United States v. Brockamp,
519 U. S. 347, 352 (1997) (“explicit listing of exceptions”
to running of limitations period considered indicative of
Congress’ intent to preclude “courts [from] read[ing] other
unmentioned, open-ended, ‘equitable’ exceptions into the
statute”).
At least equally telling, incorporating a general discovery
rule into § 1681p would not merely supplement the explicit
exception contrary to Congress’ apparent intent; it would in
practical effect render that exception entirely superfluous in
all but the most unusual circumstances. A consumer will
generally not discover the tortious conduct alleged here—
the improper disclosure of her credit history to a potential
user—until she requests her file from a credit reporting
agency. If the agency responds by concealing the offending
disclosure, both a generally applicable discovery rule and the
misrepresentation exception would operate to toll the stat-
ute of limitations until the concealment is revealed. Once
triggered, the statute of limitations would run under either
for two years from the discovery date. In this paradigmatic
setting, then, the misrepresentation exception would have no
work to do.
Both Andrews and the Government, appearing as amicus
in her support, attempt to generate some role for the express
exception independent of that filled by a general discovery
rule. They conceive of the exception as a codification of
the judge-made doctrine of equitable estoppel, which, they
argue, operates only after the discovery rule has triggered
the limitations period, preventing a defendant from benefit-
ing from its misrepresentation by tolling that period until
the concealment is uncovered.
To illustrate this supposed separate application, Andrews
and the Government frame the following scenario: A credit
reporting agency injures a consumer by disclosing her file
for an improper purpose. The consumer has no reason to
suspect the violation until a year later, when she applies for

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30 TRW INC. v. ANDREWS
Opinion of the Court
and is denied credit as a result of the agency’s wrongdoing.
At that point, the Government asserts, “the consumer would
presumably be put on inquiry notice of the violation, and the
discovery rule would start the running of the normal limita-
tion period.” Brief for United States et al. as Amici Curiae
22 (emphasis deleted); see Tr. of Oral Arg. 35–36 (argument
in accord by Andrews’ counsel). Some days or months later,
the consumer follows up on her suspicions by requesting a
copy of her credit report, to which the agency responds by
concealing the initial improper disclosure. According to An-
drews and the Government, the misrepresentation exception
would then operate to toll the already-commenced limita-
tions period until the agency reveals its wrongdoing.
We reject this argument for several reasons. As an initial
matter, we are not persuaded by this effort to distinguish
the practical function of a discovery rule and the express
exception, because we doubt that the supporting scenario is
likely to occur outside the realm of theory. The fatal weak-
ness in the narrative is its assumption that a consumer would
be charged with constructive notice of an improper disclo-
sure upon denial of a credit application. If the consumer
habitually paid her bills on time, the denial might well lead
her to suspect a prior credit agency error. But the credit
denial would place her on “inquiry notice,” and the discovery
rule would trigger the limitations period at that point, only
if a reasonable person in her position would have learned
of the injury in the exercise of due diligence. See Stone v.
Williams, 970 F. 2d 1043, 1049 (CA2 1992) (“The duty of
inquiry having arisen, plaintiff is charged with whatever
knowledge an inquiry would have revealed.”); 2 C. Corman,
Limitation of Actions § 11.1.6, p. 164 (1991) (“It is obviously
unreasonable to charge the plaintiff with failure to search for
the missing element of the cause of action if such element
would not have been revealed by such search.”).
In the usual circumstance, the plaintiff will gain knowl-
edge of her injury from the credit reporting agency. The

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31 Cite as: 534 U. S. 19 (2001)
Opinion of the Court
scenario put forth by Andrews and the Government, how-
ever, requires the assumption that, even if the consumer ex-
ercised reasonable diligence by requesting her credit report
without delay, she would not in fact learn of the disclosure
because the credit reporting agency would conceal it. The
uncovering of that concealment would remain the triggering
event for both the discovery rule and the express exception.
In this scenario, as in the paradigmatic one, the misrepresen-
tation exception would be superfluous.
In any event, both Andrews and the Government concede
that the independent function one could attribute to the ex-
press exception would arise only in “rare and egregious
case[s].” Brief for Respondent 32–33; see Brief for United
States et al. as Amici Curiae 24 (implied discovery rule
would apply in “vast majority” of cases). The result is that
a rule nowhere contained in the text of § 1681p would do the
bulk of that provision’s work, while a proviso accounting for
more than half of that text would lie dormant in all but the
most unlikely situations.
It is “a cardinal principle of statutory construction” that
“a statute ought, upon the whole, to be so construed that, if
it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.” Duncan v. Walker, 533
U. S. 167, 174 (2001) (internal quotation marks omitted); see
United States v. Menasche, 348 U. S. 528, 538–539 (1955) (“It
is our duty ‘to give effect, if possible, to every clause and
word of a statute.’ ” (quoting Montclair v. Ramsdell, 107
U. S. 147, 152 (1883))). “[W]ere we to adopt [Andrews’] con-
struction of the statute,” the express exception would be
rendered “insignificant, if not wholly superfluous.” Dun-
can, 533 U. S., at 174. We are “reluctant to treat statutory
terms as surplusage in any setting,” ibid. (internal alteration
and quotation marks omitted), and we decline to do so here.5
5 Similarly, even if we agreed that the discovery and equitable estoppel
doctrines could comfortably coexist in this setting, we would reject
the contention that we are therefore free to incorporate both into the

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32 TRW INC. v. ANDREWS
Opinion of the Court
Andrews advances two additional arguments in defense of
the decision below, neither of which we find convincing. She
contends, first, that the words “date on which the liability
arises”—the phrase Congress used to frame the general rule
in § 1681p—“literally expres[s]” a discovery rule because lia-
bility does not “arise” until it “present[s] itself ” or comes to
the attention of the potential plaintiff. Brief for Respondent
13. The dictionary definition of the word “arise” does not
compel such a reading; to the contrary, it can be used to sup-
port either party’s position. See Webster’s Third New In-
ternational Dictionary 117 (1966) (arise defined as “to come
into being”; “to come about”; or “to become apparent in such
a way as to demand attention”); Black’s Law Dictionary 138
(rev. 4th ed. 1968) (“to come into being or notice”). And
TRW offers a strong argument that we have in fact con-
strued that word to imply the result Andrews seeks to avoid.
See Brief for Petitioner 16–20 (citing, inter alia, McMahon
v. United States, 342 U. S. 25 (1951) (statute of limita-
tions triggered on date “cause of action arises” incorpo-
rates injury-occurrence rule)). On balance, we conclude, the
phrase “liability arises” is not particularly instructive, much
less dispositive of this case.
Similarly unhelpful, in our view, is Andrews’ reliance on
the legislative history of § 1681p. She observes that early
versions of that provision, introduced in both the House and
Senate, keyed the start of the limitations period to “the date
of the occurrence of the violation.” S. 823, 91st Cong., 1st
Sess., § 618 (1969); H. R. 16340, 91st Cong., 2d Sess., § 27
(1970); H. R. 14765, 91st Cong., 1st Sess., § 617 (1969). From
the disappearance of that language in the final version of
§ 1681p, Andrews infers a congressional intent to reject the
rule that the deleted words would have plainly established.
FCRA. As we have explained, see supra, at 28–29, we read Congress’
codification of one judge-made doctrine not as a license to imply others,
but rather as an intentional rejection of those it did not codify.

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33 Cite as: 534 U. S. 19 (2001)
Opinion of the Court
As TRW notes, however, Congress also heard testimony
urging it to enact a statute of limitations that runs from “the
date on which the violation is discovered” but declined to do
so. Hearings before the Subcommittee on Consumer Affairs
of the House Committee on Banking and Currency, 91st
Cong., 2d Sess., 188 (1970). In addition, the very change to
§ 1681p’s language on which Andrews relies could be read to
refute her position. The misrepresentation exception was
added at the same time Congress changed the language
“date of the occurrence of the violation” to “liability arises.”
Compare S. 823, 91st Cong., 1st Sess., § 618 (1969); H. R.
16340, 91st Cong., 2d Sess., § 27 (1970); H. R. 14765, 91st
Cong., 1st Sess., § 617 (1969), with H. R. Rep. No. 91–1587,
p. 22 (1970). We doubt that Congress, when it inserted a
carefully worded exception to the main rule, intended simul-
taneously to create a general discovery rule that would ren-
der that exception superfluous. In sum, the evidence of the
early incarnations of § 1681p, like the “liability arises” lan-
guage on which Congress ultimately settled, fails to convince
us that Congress intended sub silentio to adopt a general
discovery rule in addition to the limited one it expressly
provided.
III
In this Court, Andrews for the first time presents an alter-
native argument based on the “liability arises” language of
§ 1681p. Brief for Respondent 22–25. She contends that
even if § 1681p does not incorporate a discovery rule, “liabil-
ity” under the FCRA does not necessarily “arise” when a
violation of the Act occurs. Noting that the FCRA’s sub-
stantive provisions tie “liability” to the presence of “actual
damages,” §§ 1681n, 1681o, and that “arise” means at least
“to come into existence,” Andrews concludes that “liability
arises” only when actual damages materialize. Not until
then, she maintains, will all the essential elements of a claim
coalesce: “duty, breach, causation, and injury.” Brief for
Respondent 23; see Hyde v. Hibernia Nat. Bank, 861 F. 2d

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34 TRW INC. v. ANDREWS
Opinion of the Court
446, 449 (CA5 1988) (“The requirement that a consumer sus-
tain some injury in order to establish a cause of action sug-
gests that the statute should be triggered when the agency
issues an erroneous report to an institution with which the
consumer is dealing.”).
Accordingly, Andrews asserts, her claims are timely: The
disputed “liability” for actual damages did not “arise” until
May 1995, when she suffered the emotional distress, missed
opportunities, and inconvenience cataloged in her complaint;
prior to that time, “she had no FCRA claim to bring,” Brief
for Respondent 24 (emphasis deleted). Cf. Bay Area Laun-
dry and Dry Cleaning Pension Trust Fund v. Ferbar Corp.
of Cal., 522 U. S. 192, 200–201 (1997) (rejecting construction
of statute under which limitations period would begin run-
ning before cause of action existed in favor of “standard rule”
that the period does not commence earlier than the date “the
plaintiff can file suit and obtain relief ”).6
We do not reach this issue because it was not raised or
briefed below. See Reply Brief for Petitioner 18–19. We
note, however, that the Ninth Circuit has not embraced An-
drews’ alternative argument, see 225 F. 3d, at 1066 (“Liabil-
6 The opinion concurring in the judgment rips Bay Area Laundry and
Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192,
201 (1997), from its berth, see post, at 36, 38; we here set the record
straight. The question presented in Bay Area Laundry was whether a
statute of limitations could commence to run on one day while the right
to sue ripened on a later day. We answered that question, and only that
question, “no,” unless the statute indicates otherwise. See 522 U. S., at
200–201. Continuing on beyond the place where the concurrence in the
judgment leaves off, we clarified:
“Unless Congress has told us otherwise in the legislation at issue, a cause
of action does not become ‘complete and present’ for limitations purposes
until the plaintiff can file suit and obtain relief. See Reiter v. Cooper, 507
U. S. 258, 267 (1993) (“While it is theoretically possible for a statute to
create a cause of action that accrues at one time for the purpose of calcu-
lating when the statute of limitations begins to run, but at another time
for the purpose of bringing suit, we will not infer such an odd result in
the absence of any such indication in the statute.”).” Id., at 201.

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35 Cite as: 534 U. S. 19 (2001)
Scalia, J., concurring in judgment
ity under the [Act] arises when a consumer reporting agency
fails to comply with § 1681e.”), and the Government does not
join her in advancing it here.
Further, we doubt that the argument, even if valid, would
aid Andrews in this case. Her claims alleged willful viola-
tions of § 1681e(a) and are thus governed by § 1681n. At the
time of the events in question, that provision stated: “Any
consumer reporting agency . . . which willfully fails to comply
with any requirement imposed under [the Act] with respect
to any consumer is liable to that consumer in an amount
equal to the sum of . . . any actual damages” and “such
amount of punitive damages as the court may allow.” 15
U. S. C. § 1681n (1994 ed.). Punitive damages, which An-
drews sought in this case, could presumably be awarded at
the moment of TRW’s alleged wrongdoing, even if “actual
damages” did not accrue at that time. On Andrews’ theory,
then, at least some of the liability she sought to enforce arose
when the violations occurred, and the limitations period
therefore began to run at that point.
* * *
For the reasons stated, the judgment of the Court of Ap-
peals for the Ninth Circuit is reversed, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
concurring in the judgment.
As the Court notes, ante, at 26, 27, the Court of Appeals
based its decision on what it called the “general federal
rule . . . that a federal statute of limitations begins to run
when a party knows or has reason to know that she was
injured,” 225 F. 3d 1063, 1066 (CA9 2000). The Court de-
clines to say whether that expression of the governing gen-
eral rule is correct. See ante, at 27 (“To the extent such a

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36 TRW INC. v. ANDREWS
Scalia, J., concurring in judgment
presumption exists, a matter this case does not oblige us to
decide . . .”). There is in my view little doubt that it is not,
and our reluctance to say so today is inexplicable, given that
we held, a mere four years ago, that a statute of limitations
which says the period runs from “the date on which the
cause of action arose,” 29 U. S. C. § 1451(f)(1) (1994 ed.), “in-
corporates the standard rule that the limitations period com-
mences when the plaintiff has a complete and present cause
of action,” Bay Area Laundry and Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997)
(emphasis added and internal quotation marks omitted).1
1 This analysis does not, as the Court asserts, ante, at 34, n. 6, “ri[p] Bay
Area Laundry . . . from its berth.” The question presented on which
certiorari was granted in the case was not, as the Court now recharacter-
izes it, the generalized inquiry “whether a statute of limitations could com-
mence to run on one day while the right to sue ripened on a later day,”
ibid., but rather (as set forth in somewhat abbreviated form in petitioner
Bay Area Laundry’s merits brief) the much more precise question, “When
does the statute of limitations begin to run on an action under the Multi-
employer Pension Plan Amendments Act, 29 U. S. C. § 1381 et seq., to col-
lect overdue employer withdrawal liability payments?” Brief for Peti-
tioner, O. T. 1997, No. 96–370, p. i. (Framing of the question in respondent
Ferbar Corporation’s merits brief was virtually identical.) The Court’s
Bay Area Laundry opinion introduced its discussion of the merits as
follows:
“[T]he Ninth Circuit’s decision conflicts with an earlier decision of the
District of Columbia Circuit [which] held that the statute of limitations . . .
runs from the date the employer misses a scheduled payment, not from
the date of complete withdrawal. . . . The Third and Seventh Circuits have
also held that the statute of limitations runs from the failure to make a
payment . . . . We granted certiorari . . . to resolve these conflicts.” 522
U. S., at 200.
The Court’s assertion that we did not answer the question presented,
and did not resolve the conflicts—held only that the Ninth Circuit was
wrong to say that the limitations period commenced before there was a
right of action, and not that the other Circuits were right to say that the
period commenced upon the failure to make a payment—is as erroneous
as it is implausible. Bay Area Laundry held that the cause of action
arose when “the employer violated an obligation owed the plan,” id., at

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37 Cite as: 534 U. S. 19 (2001)
Scalia, J., concurring in judgment
Bay Area Laundry quoted approvingly our statement in
Clark v. Iowa City, 20 Wall. 583, 589 (1875), that “[a]ll stat-
utes of limitation begin to run when the right of action is
complete . . . .” This is unquestionably the traditional rule:
Absent other indication, a statute of limitations begins to
run at the time the plaintiff “has the right to apply to the
court for relief . . . .” 1 H. Wood, Limitation of Actions
§ 122a, p. 684 (4th ed. 1916). “That a person entitled to an
action has no knowledge of his right to sue, or of the facts
out of which his right arises, does not postpone the period of
limitation.” 2 id., § 276c(1), at 1411.
The injury-discovery rule applied by the Court of Appeals
is bad wine of recent vintage. Other than our recognition
of the historical exception for suits based on fraud, e. g., Bai-
ley v. Glover, 21 Wall. 342, 347–350 (1875), we have deviated
from the traditional rule and imputed an injury-discovery
rule to Congress on only one occasion. Urie v. Thompson,
337 U. S. 163, 169–171 (1949).2 We did so there because we
could not imagine that legislation as “humane” as the Fed-
eral Employers’ Liability Act would bar recovery for latent
medical injuries. Id., at 170. We repeated this sentiment
in Rotella v. Wood, 528 U. S. 549, 555 (2000), saying that the
“cry for a discovery rule is loudest” in the context of
medical-malpractice suits; and we repeat it again today with
the assertion that the present case does not involve “an area
202, because “the standard rule” is that the period begins to run when
the plaintiff has a “complete and present cause of action,” id., at 201
(internal quotation marks omitted).
2 As the Court accurately notes, ante, at 27, in one other case we simply
observed (without endorsement) that several Courts of Appeals had sub-
stituted injury-discovery for the traditional rule in medical-malpractice
actions under the Federal Tort Claims Act, see United States v. Kubrick,
444 U. S. 111, 120, and n. 7 (1979), and in two other cases observed (without
endorsement) that lower federal courts “generally apply” an injury-
discovery rule, see Rotella v. Wood, 528 U. S. 549, 555 (2000); Klehr v. A. O.
Smith Corp., 521 U. S. 179, 191 (1997).

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38 TRW INC. v. ANDREWS
Scalia, J., concurring in judgment
of the law that cries out for application of a discovery rule,”
ante, at 28. These cries, however, are properly directed not
to us, but to Congress, whose job it is to decide how “hu-
mane” legislation should be—or (to put the point less tenden-
tiously) to strike the balance between remediation of all inju-
ries and a policy of repose. See Amy v. Watertown (No. 2),
130 U. S. 320, 323–324 (1889) (“[T]he cases in which [the stat-
ute of limitations may be suspended by causes not mentioned
in the statute itself] are very limited in character, and are
to be admitted with great caution; otherwise the court would
make the law instead of administering it”).
Congress has been operating against the background rule
recognized in Bay Area Laundry for a very long time.
When it has wanted us to apply a different rule, such as the
injury-discovery rule, it has said so. See, e. g., 18 U. S. C.
§ 1030(g) (1994 ed., Supp. V).3 See also, e. g., 15 U. S. C.
§ 77m (1994 ed., Supp. V); 4 42 U. S. C. § 9612(d)(2) (1994 ed.).5
To apply a new background rule to previously enacted legis-
lation would reverse prior congressional judgments; and to
display uncertainty regarding the current background rule
makes all unspecifying new legislation a roll of the dice. To-
day’s opinion, in clarifying the meaning of 15 U. S. C. § 1681p,
casts the meaning of innumerable other limitation periods
in doubt.
3 “No action may be brought under this subsection unless such action is
begun within 2 years of the date of the act complained of or the date of
the discovery of the damage.”
4 “No action shall be maintained to enforce any liability created under
section 77k or 77l(a)(2) of this title unless brought within one year after
the discovery of the untrue statement or the omission, or after such dis-
covery should have been made by the exercise of reasonable diligence, or,
if the action is to enforce a liability created under section 77l(a)(1) of this
title, unless brought within one year after the violation upon which it
is based.”
5 “No claim may be presented under this section . . . unless the claim is
presented within 3 years after . . . [t]he date of the discovery of the loss
and its connection with the release in question.”

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39 Cite as: 534 U. S. 19 (2001)
Scalia, J., concurring in judgment
Because there is nothing in this statute to contradict the
rule that a statute of limitations begins to run when the
cause of action is complete, I concur in the judgment of the
Court.

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40 OCTOBER TERM, 2001
Appendix to Decree
NEBRASKA v. WYOMING et al.
on petition for order enforcing decree and for
injunctive relief
No. 108, Orig. Decided June 11, 1945, April 20, 1993, and May 30, 1995—
Decree entered October 8, 1945—Order modifying and supplementing
decree entered June 15, 1953—Decree entered November 13, 2001
Decree entered.
Opinions reported: 325 U. S. 589, 507 U. S. 584, 515 U. S. 1; decree reported:
325 U. S. 665; order modifying and supplementing decree reported: 345
U. S. 981.
The Final Report of the Special Master is received and
ordered filed.
DECREE
This cause, having come to be heard on the Final Report of
the Special Master appointed by the Court, IT IS HEREBY
ORDERED THAT:
1. The Final Settlement Stipulation executed by all of the
parties to this case and presented to the Special Master on
March 15, 2001, is approved;
2. The proposed Modified Decree submitted as the Appen-
dix to the Final Settlement Stipulation is entered, replacing
the decree originally entered in this case on October 8, 1945,
as modified on June 15, 1953;
3. All claims, counterclaims, and cross-claims brought in
this case are hereby dismissed with prejudice; and
4. The parties shall share in the cost of this litigation in
the manner that this Court shall order following the entry
of the Modified Decree.
APPENDIX
Modified North Platte Decree
[Entered on October 8, 1945, Nebraska v. Wyoming, 325
U. S. 589, 665, modified and supplemented on June 15, 1953,

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41 Cite as: 534 U. S. 40 (2001)
Appendix to Decree
Nebraska v. Wyoming, 345 U. S. 981, and further modified
November 13, 2001, Nebraska v. Wyoming, supra, p. 40.]
This Court equitably apportioned the North Platte River
among the States of Colorado, Wyoming, and Nebraska in
1945. Nebraska v. Wyoming, 325 U. S. 589, 665 (1945). The
Decree was amended pursuant to a stipulation and joint
motion of the parties in 1953. Nebraska v. Wyoming, 345
U. S. 981. In 1986, the State of Nebraska filed suit against
the State of Wyoming. In 1987, Wyoming filed counter-
claims against Nebraska. This Court resolved certain
issues on cross-motions for summary judgment in 1993.
Nebraska v. Wyoming, 507 U. S. 584. In 1995, this Court
granted in part and denied in part Nebraska’s motion to
amend its petition, and granted in part and denied in part
Wyoming’s motion to amend its counterclaims and to file
cross-claims against the United States. Nebraska v. Wyo-
ming, 515 U. S. 1. The parties have agreed upon this
Court’s entry of this Modified Decree to a dismissal with
prejudice of all claims, counterclaims, and cross-claims for
which leave to file was or could have been sought in this
case.
The parties to this cause having filed a Final Settle-
ment Stipulation dated March 13, 2001, which includes the
parties’ agreement to create the North Platte Decree Com-
mittee to assist them in monitoring, administering, and im-
plementing this Modified Decree, and a Joint Motion for
Approval of Stipulation, Modification of Decree, and Dis-
missal with Prejudice, and the Court being fully advised:
IT IS ORDERED:
That the Final Settlement Stipulation dated March 13,
2001, is hereby approved and adopted;
That all claims, counterclaims, and cross-claims for which
leave to file was or could have been sought in this case are
hereby dismissed with prejudice; and
That the Decree of October 8, 1945, as amended on June
15, 1953, is hereby modified as follows:

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42 NEBRASKA v. WYOMING
Appendix to Decree
I. The State of Colorado, its officers, attorneys, agents,
and employees, be and they are hereby severally enjoined:
(a) From diverting or permitting the diversion of water
from the North Platte River and its tributaries for the irriga-
tion of more than a total of 145,000 acres of land in Jackson
County, Colorado, during any one irrigation season;
(b) From storing or permitting the storage of more than a
total amount of 17,000 acre-feet of water for irrigation pur-
poses from the North Platte River and its tributaries in
Jackson County, Colorado, between October 1 of any year
and September 30 of the following year;
(c) From exporting out of the basin of the North Platte
River and its tributaries in Jackson County, Colorado, to
any other stream basin or basins more than 60,000 acre-feet
of water in any period of ten consecutive years reckoned
in continuing progressive series beginning with October 1,
1945.
II. The State of Wyoming, its officers, attorneys, agents,
and employees, be and they are hereby severally enjoined:
(a) From diverting or permitting the diversion of water
for irrigation from the North Platte River and its tributaries,
including water from hydrologically connected groundwater
wells, upstream of Pathfinder Dam for the consumption in
any period of ten consecutive years reckoned in continuing
progressive series, of more than the largest amount of water
consumed for irrigation from such sources in any ten consec-
utive year period between 1952 and 1999, inclusive. This
injunction becomes effective the first full calendar year after
the date of entry of this Modified Decree. The consumptive
use of irrigation water in this area to be counted under this
injunction shall include the following:
(1) Water consumed for irrigation purposes on lands irri-
gated with surface water diversions of natural flow;
(2) Water consumed for irrigation purposes on lands irri-
gated with water stored pursuant to paragraph II(e);

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(3) Water consumed for irrigation purposes on lands irri-
gated by water from hydrologically connected groundwater
wells;
(4) Water consumed for purposes other than irrigation
under water rights transferred since October 8, 1945, from
an irrigation use to another use;
The largest amount of water consumed for irrigation from
such sources in any ten consecutive year period between
1952 and 1999, inclusive, has been determined by the parties
pursuant to a methodology and procedures approved and
adopted in the Final Settlement Stipulation to be 1,280,000
acre-feet. For the purpose of determining compliance with
this injunction, the amount of water consumed for irrigation
from such sources shall be determined by the same method-
ology and procedures. After ten years of administration,
accounting, and reporting under this injunction, the method-
ology and the ten consecutive year limit will be reviewed by
the North Platte Decree Committee pursuant to procedures
approved and adopted in the Final Settlement Stipulation to
determine if there is a better methodology for calculating
the largest amount of water consumed for irrigation in such
ten consecutive year period and for determining compliance.
In making such calculation, any acreage historically reported
by the Wyoming State Engineer as irrigated by direct flow
surface water or stored water or as transfers, between 1952
and 1999, inclusive, and used in the existing methodology,
shall not be changed. In addition, the other acreage used in
the existing methodology shall not be changed unless the
North Platte Decree Committee agrees that such change re-
sults in a more accurate determination of acres actually irri-
gated between 1952 and 1999, inclusive. In any new meth-
odology, to determine compliance with the consumptive use
limit, the acreage above Pathfinder Dam, when combined
with the acreage between Pathfinder Dam and Guernsey
Reservoir, cannot exceed the 226,000 acreage limitation pur-
suant to paragraph II(c). If Nebraska, Wyoming, and the

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United States agree on a new methodology and a new limit,
they shall notify the Court and this paragraph will be modi-
fied accordingly. As provided in paragraph XIII, absent
agreement on a new methodology and a new limit, Nebraska,
Wyoming, or the United States may seek recourse to the
Court to resolve these issues.
(b) From diverting or permitting the diversion of water
for irrigation from the North Platte River and its tributar-
ies, including water from hydrologically connected ground-
water wells, between Pathfinder Dam and Guernsey Reser-
voir for the consumption in any period of ten consecutive
years reckoned in continuing progressive series, exclusive
of the Kendrick Project, of more than the largest amount of
water consumed for irrigation from such sources in any ten
consecutive year period between 1952 and 1999, inclusive.
This injunction becomes effective the first full calendar year
after the entry of this Modified Decree. The consumptive
use of irrigation water in this area to be counted under this
injunction shall include the following:
(1) Water consumed for irrigation purposes on lands irri-
gated with surface water diversions of natural flow;
(2) Water consumed for irrigation purposes on lands irri-
gated with water stored in reservoirs that store water from
the tributaries between Pathfinder Dam and Guernsey
Reservoir;
(3) Water consumed for irrigation purposes on lands irri-
gated by water from hydrologically connected groundwater
wells;
(4) Water consumed for purposes other than irrigation
with water rights transferred since October 8, 1945, from an
irrigation use to another use;
The largest amount of water consumed for irrigation from
such sources in any ten consecutive year period between
1952 and 1999, inclusive, has been determined by the parties
pursuant to a methodology and procedures approved and
adopted in the Final Settlement Stipulation to be 890,000

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acre-feet. For the purpose of determining compliance with
this injunction, the amount of water consumed for irriga-
tion from such sources shall be determined by the same
methodology and procedures. After ten years of adminis-
tration, accounting, and reporting under this injunction, the
methodology and the ten consecutive year limit will be re-
viewed by the North Platte Decree Committee pursuant to
procedures approved and adopted in the Final Settlement
Stipulation to determine if there is a better methodology for
calculating the largest amount of water consumed for irriga-
tion in such ten consecutive year period and for determining
compliance. In making such calculation, any acreage histor-
ically reported by the Wyoming State Engineer as irrigated
by direct flow surface water or stored water or as transfers,
between 1952 and 1999, inclusive, and used in the existing
methodology, shall not be changed. In addition, the other
acreage used in the existing methodology shall not be
changed unless the North Platte Decree Committee agrees
that such change results in a more accurate determination
of acres actually irrigated between 1952 and 1999, inclusive.
In any new methodology, to determine compliance with the
consumptive use limit, the acreage above Pathfinder Dam,
when combined with the acreage between Pathfinder Dam
and Guernsey Reservoir, cannot exceed the 226,000 acreage
limitation pursuant to paragraph II(c). If Nebraska, Wyo-
ming, and the United States agree on a new methodology
and a new limit, they shall notify the Court and this para-
graph will be modified accordingly. As provided in para-
graph XIII, absent agreement on a new methodology and a
new limit, Nebraska, Wyoming, or the United States may
seek recourse to the Court to resolve these issues.
(c) From diverting or permitting the diversion of water
from the North Platte River and its tributaries, including
water from hydrologically connected groundwater wells, up-
stream of Guernsey Reservoir for the intentional irrigation
of more than a total of 226,000 acres of land in Wyoming

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during any one irrigation season, exclusive of the Kendrick
Project. The acres in this area to be counted under this
injunction shall include the following, provided that an in-
tentionally irrigated acre that receives water from more than
one source shall be counted only once:
(1) Acres irrigated by surface water diversions of natural
flow;
(2) Acres irrigated by water stored pursuant to para-
graph II(e);
(3) Acres irrigated by water stored in reservoirs that
store water from the tributaries between Pathfinder Dam
and Guernsey Reservoir;
(4) Acres irrigated with water from hydrologically con-
nected groundwater wells;
(5) The equivalent of the acres found by order of the Wyo-
ming State Board of Control to have been historically irri-
gated and that formed the basis for the transfer of water
rights where water rights on the North Platte River up-
stream of Guernsey Reservoir or the tributaries upstream of
Pathfinder Dam are transferred after October 8, 1945, from
an irrigation use to another use; provided, however, that the
amount of acres counted for a given year may be reduced
proportionately to the extent that the actual diversion and
use of water under the transferred water right during that
year are less than the total diversion and use allowed by the
order approving such transfer;
(6) The equivalent of the acres found by order of the Wyo-
ming State Board of Control to have been historically irri-
gated and that formed the basis for the transfer of water
rights where water rights on the tributaries entering the
North Platte River between Pathfinder Dam and Guernsey
Reservoir are transferred after January 1, 2001, from an irri-
gation use to another use; provided, however, that the
amount of acres counted for a given year may be reduced
proportionately to the extent that the actual diversion and
use of water under the transferred water right during that

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year are less than the total diversion and use allowed by the
order approving such transfer;
Ten years after the entry of this Modified Decree, the
provision that enjoins Wyoming from intentionally irrigat-
ing more than 226,000 acres upstream of Guernsey Reser-
voir will be replaced with two injunctions, one that limits
the number of acres that can be irrigated above Pathfinder
Dam and one that limits the number of acres that can be
irrigated between Pathfinder Dam and Guernsey Reservoir.
Wyoming has the discretion to designate the irrigated acre-
age limitation above Pathfinder Dam and the irrigated acre-
age limitation between Pathfinder Dam and Guernsey Res-
ervoir, so long as the total irrigated acreage limitation does
not exceed 226,000 acres. After Wyoming makes such des-
ignation, Nebraska, Wyoming, and the United States will so
notify the Court and the Modified Decree will be modified
accordingly.
(d) From diverting or permitting the diversion of water
from the Laramie River and its tributaries, including water
from hydrologically connected groundwater wells, down-
stream of the Wheatland Irrigation District’s Tunnel No. 2,
exclusive of the area within the Wheatland Irrigation Dis-
trict, for the intentional irrigation of more than a total of
39,000 acres of land in Wyoming during any one irrigation
season. The acres in this area to be counted under this in-
junction shall include the following, provided that an inten-
tionally irrigated acre that receives water from more than
one source shall be counted only once:
(1) Acres irrigated by surface water diversions of natural
flow;
(2) Acres irrigated by stored irrigation water released
from a reservoir;
(3) Acres irrigated with water from hydrologically con-
nected groundwater wells;
(4) The equivalent of the acres found by order of the Wyo-
ming State Board of Control to have been historically irri-

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gated and that formed the basis for the transfer of water
rights where water rights are transferred after January 1,
2001, from an irrigation use that is subject to the limitations
of this paragraph II(d) to another use; provided, however,
that the amount of acres counted for a given year may be
reduced proportionately to the extent that the actual di-
version and use of water under the transferred water right
during that year are less than the total diversion and use
allowed by the order approving such transfer;
(e) From storing or permitting the storage of more than a
total amount of 18,000 acre-feet of water for irrigation pur-
poses from the North Platte River and its tributaries above
Pathfinder Reservoir between October 1 of any year and
September 30 of the following year, exclusive of Seminoe
Reservoir.
III. The State of Wyoming, its officers, attorneys, agents,
and employees, be and they are hereby severally enjoined
from storing or permitting the storage of water in Path-
finder, Guernsey, Seminoe, Alcova, and Glendo Reservoirs
and the Inland Lakes otherwise than in accordance with the
relative storage rights, as among themselves, of such reser-
voirs, which are hereby defined and fixed as follows:
First, Pathfinder Reservoir;
Second, Inland Lakes with the same priority date as
Pathfinder Reservoir;
Third, Guernsey Reservoir;
Fourth, Seminoe Reservoir;
Fifth, Alcova Reservoir; and
Sixth, Glendo Reservoir;
Provided, however, that water accruing in priority to the
storage right of a reservoir listed above, and water accru-
ing to the Glendo Reservoir reregulating space pursuant
to paragraph XVII(g), may be physically stored in, released
from, or exchanged with another reservoir so long as the
water is accounted in accordance with the foregoing rule of
priority and only when such storage, release, or exchange

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will not materially interfere with the administration of water
for irrigation purposes according to the priority decreed for
the French Canal and the State Line Canals. Further, in
accordance with the opinion of this Court dated April 20,
1993 (507 U. S. 584), the United States has the right to divert
46,000 acre-feet of water during the nonirrigation season
months of October, November, and April for storage in the
Inland Lakes. Historically, pursuant to annual agreements
entered in the discretion of the parties, such diversions
have occurred at a rate not exceeding 910 cubic feet per sec-
ond from gains accruing to the river downstream of Alcova
Reservoir. This right shall be administered in accordance
with procedures to be reviewed and adopted annually by the
North Platte Decree Committee.
IV. The State of Wyoming, its officers, attorneys, agents,
and employees, be and they are hereby severally enjoined
from storing or permitting the storage of water in Path-
finder, Guernsey, Seminoe, Alcova, and Glendo Reservoirs,
and from the diversion of natural flow water through the
Casper Canal for the Kendrick Project between and includ-
ing May 1 and September 30 of each year otherwise than in
accordance with the rule of priority in relation to the appro-
priations of the Nebraska lands supplied by the French
Canal and by the State Line Canals, which said Nebraska
appropriations are hereby adjudged to be senior to said five
reservoirs and said Casper Canal, and which said Nebraska
appropriations are hereby identified and defined, and their
diversion limitations in second feet and seasonal limitations
in acre-feet fixed as follows:
Limitation Seasonal
in Sec. Limitation
Lands Canal Feet in Acre-Feet
Tract of 1,025 acres French 15 2,227
Mitchell Irrigation District Mitchell 195 35,000
Gering Irrigation District Gering 193 36,000
Farmers Irrigation District Tri-State 748 183,050
Ramshorn Irrigation District Ramshorn 14 3,000

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This paragraph limits the extent to which these canals
may stop the federal reservoirs from storing water and
the Casper Canal from diverting natural flow water. It does
not place any absolute ceilings or other restrictions on the
quantities of water that these canals may actually divert.
Nebraska v. Wyoming, 507 U. S., at 603; see also Nebraska v.
Wyoming, 515 U. S., at 10.
V. The natural flow in the Guernsey Dam to Tri-State
Dam section between and including May 1 and September 30
of each year, including the contribution of Spring Creek, be
and the same hereby is apportioned between Wyoming and
Nebraska on the basis of twenty-five per cent to Wyoming
and seventy-five per cent to Nebraska, with the right
granted Nebraska to designate from time to time the por-
tion of its share which shall be delivered into the Interstate,
Fort Laramie, French, and Mitchell Canals for use on the
Nebraska lands served by these canals. The natural flow
in a portion of certain tributaries and drains as defined in
paragraph V(a) shall also be included in the natural flow
apportioned by this paragraph. The State of Nebraska, its
officers, attorneys, agents, and employees, and the State of
Wyoming, its officers, attorneys, agents, and employees, are
hereby enjoined and restrained from diversion or use con-
trary to this apportionment, provided that in the apportion-
ment of water in this section the flow for each day, until
ascertainable, shall be assumed to be the same as that of the
preceding day, as shown by the measurements and computa-
tions for that day. Provided further that:
(a) Diversions under surface water rights for irrigation
purposes from those parts of the tributaries and drains to
the North Platte River that lie within the area bounded by
Whalen Diversion Dam on the west, the Ft. Laramie Canal
on the south, the Interstate Canal on the north, and the
Wyoming-Nebraska state line on the east, excluding the
drainage basins of the Laramie River and Horse Creek, shall
be administered and accounted as diversions of natural flow

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for the purposes of the foregoing percentage apportionment,
unless the depletions to the North Platte River resulting
from such diversions are replaced. The amount of such
depletions, and the method for their replacement in the ordi-
nary course of administration, shall be determined and im-
plemented pursuant to procedures that have been approved
and adopted in the Final Settlement Stipulation.
(b) Diversions for irrigation purposes from wells with
water right priorities between October 8, 1945, and including
December 31, 2000, located within the area bounded by
Whalen Diversion Dam on the west, 300 feet south of the
Ft. Laramie Canal on the south, one mile north of the Inter-
state Canal on the north, and the Wyoming-Nebraska state
line on the east, shall be regulated as follows: To the extent
the pumping of such wells results in depletions to the North
Platte River between Whalen Diversion Dam and the state
line or to the portions of tributaries described in paragraph
V(a) between May 1 and September 30, such depletions shall
be replaced or the pumping shall be regulated to prevent
such depletions, unless such depletions occur when the natu-
ral flow in the Guernsey Dam to Tri-State Diversion Dam
reach exceeds irrigation demands in that reach. The
amount of such depletions, and the method for their replace-
ment in the ordinary course of administration, shall be
determined and implemented pursuant to procedures that
have been approved and adopted in the Final Settlement
Stipulation.
(c) Diversions for irrigation purposes from wells with
water right priorities after December 31, 2000, located
within the area bounded by Whalen Diversion Dam on the
west, 300 feet south of the Ft. Laramie Canal on the south,
one mile north of the Interstate Canal on the north, and the
Wyoming-Nebraska state line on the east, shall be regulated
or subject to depletion replacement pursuant to procedures
that have been approved and adopted in the Final Settle-
ment Stipulation.

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(d) The river carriage and reservoir loss calculations es-
tablished in the Decree of October 8, 1945, have been re-
placed with administrative procedures attached to the North
Platte Decree Committee Charter. These procedures may
be modified from time to time by the North Platte Decree
Committee.
VI. This Modified Decree is intended to and does deal with
and apportion only the natural flow of the North Platte
River. Storage water shall not be affected by this Modified
Decree, and the owners of rights therein shall be permitted
to distribute the same in accordance with any lawful con-
tracts which they may have entered into or may in the future
enter into without interference because of this Modified
Decree.
VII. Such additional gauging stations and measuring de-
vices at or near the Wyoming-Nebraska state line, if any,
as may be necessary for making any apportionment herein
decreed, shall be constructed and maintained at the joint and
equal expense of Wyoming and Nebraska to the extent that
the costs thereof are not paid by others.
VIII. The State of Wyoming, its officers, attorneys,
agents, and employees be and they are hereby severally en-
joined from diverting or permitting the diversion of water
from the North Platte River or its tributaries at or above
Alcova Reservoir in lieu of or in exchange for return flow
water from the Kendrick Project reaching the North Platte
River below Alcova Reservoir.
IX. The State of Wyoming and the State of Colorado be
and they are hereby each required to prepare and maintain
complete and accurate records of the total area of land irri-
gated and the storage and exportation of the water of the
North Platte River and its tributaries within those portions
of their respective jurisdictions covered by the provisions of
paragraphs I, II(c), II(d), and II(e). The State of Wyoming
is also required to prepare and maintain complete and accu-
rate records of the total consumption of irrigation water in

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the portion of its jurisdiction covered by paragraphs II(a)
and II(b). The record keeping and reporting required of the
State of Wyoming by this paragraph shall be implemented
in accordance with procedures that have been approved and
adopted in the Final Settlement Stipulation. The records
required by this paragraph shall be available for inspection
at all reasonable times; provided, however, that such records
shall not be required in reference to the water uses permit-
ted by paragraphs X and XII(f).
X. This Modified Decree shall not affect or restrict the
use or diversion of water from the North Platte River and
its tributaries in Colorado or Wyoming for ordinary and
usual domestic, municipal, and stock watering purposes and
consumption.
XI. For the purposes of this Modified Decree:
(a) “Season” or “seasonal” refers to the irrigation season,
May 1 to September 30, inclusive;
(b) The term “storage water” as applied to releases from
reservoirs owned and operated by the United States is de-
fined as any water which is released from reservoirs for
use on lands under canals having storage contracts in addi-
tion to the water which is discharged through those reser-
voirs to meet natural flow uses permitted by this Modified
Decree;
(c) “Natural flow water” shall be taken as referring to all
water in the stream except storage water;
(d) Return flows from the Kendrick Project shall be
deemed to be “natural flow water” when they have reached
the North Platte River, subject to the same diversion and
use as any other natural flow in the stream;
(e) “Hydrologically connected groundwater wells” are de-
fined in procedures attached to the North Platte Decree
Committee Charter as Exhibits 4, 6, and 12 approved and
adopted in the Final Settlement Stipulation. The North
Platte Decree Committee may modify such definition in ac-
cordance with the Final Settlement Stipulation.

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XII. This Modified Decree shall not affect:
(a) The relative rights of water users within any one of
the States who are parties to this suit except as may be
otherwise specifically provided herein;
(b) Such claims as the United States has to storage water
under Wyoming law nor will the Modified Decree in any way
interfere with the ownership and operation by the United
States of the various federal storage and power plants,
works, and facilities;
(c) The use or disposition of any additional supply or sup-
plies of water that may be imported into the basin of the
North Platte River from the watershed of an entirely sepa-
rate stream or the return flow from any such supply or
supplies;
(d) The apportionment heretofore made by this Court be-
tween the States of Wyoming and Colorado of the waters of
the Laramie River, a tributary of the North Platte River,
down to and including the Wheatland Project. The waters
of the Laramie River below the Wheatland Project are not
apportioned by this Modified Decree. The only existing
limitation in this Modified Decree on Wyoming’s use of the
Laramie River is provided in paragraph II(d);
(e) The apportionment made by the compact between the
States of Nebraska and Colorado, apportioning the water of
the South Platte River;
(f) Water diverted for de minimis uses, defined as:
(1) Ponds with capacities of twenty acre-feet or less for
purposes other than irrigated agriculture;
(2) Wells with capacities less than or equal to twenty-five
gallons per minute for a single project for purposes other
than irrigated agriculture; and
(3) Miscellaneous uses that withdraw or divert less than
fifty acre-feet per year for a single project other than stock
watering, domestic or irrigated agriculture.
XIII. Any of the parties may apply at the foot of this
Modified Decree for its amendment or for further relief.

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Any dispute related to compliance or administration shall be
submitted to and addressed by the North Platte Decree
Committee before a party may seek leave of the Court to
bring such dispute before the Court. The Court retains ju-
risdiction of this suit for the purpose of any order, direction,
or modification of the decree, or any supplementary decree,
that may at any time be deemed proper in relation to the
subject matter in controversy. Further, the Court retains
jurisdiction, upon proper showing, to adjudicate all matters
for which authority or responsibility is granted to the North
Platte Decree Committee by this Modified Decree or the
Final Settlement Stipulation. Matters with reference to
which further relief may hereafter be sought shall include,
but shall not be limited to, the following:
(a) The question of the applicability and effect of the Act
of August 9, 1937 (50 Stat. 564, 595–596), upon the rights of
Colorado and its water users;
(b) The question of the effect upon the rights of upstream
areas of the construction or threatened construction in down-
stream areas of any projects not now existing or recognized
in this Modified Decree;
(c) The question of the effect of the construction or threat-
ened construction of storage capacity not now existing on
tributaries entering the North Platte River between Path-
finder Reservoir and Guernsey Reservoir;
(d) The question of the right to divert at or above the
headgate of the Casper Canal any water in lieu of, or in ex-
change for, any water developed by artificial drainage to the
river of sump areas on the Kendrick Project;
(e) Any question relating to the joint operation of Path-
finder, Guernsey, Seminoe, Alcova, and Glendo Reservoirs
whenever changed conditions make such joint operation
possible;
(f) Any change in conditions making modification of the
Modified Decree or the granting of further relief necessary
or appropriate;

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(g) Failure of the North Platte Decree Committee, or the
parties to the North Platte Decree Committee, to act upon,
resolve or agree on a matter that has been submitted to the
North Platte Decree Committee.
XIV. The costs in the original cause were apportioned and
paid pursuant to previous order of this Court. The costs in
the present cause and the payment of the fees and expenses
of the Special Master have been apportioned and paid accord-
ing to previous orders of this Court with which the parties
agree and the Court hereby confirms.
XV. The clerk of this Court shall transmit to the Gover-
nors and Attorneys General of the States of Colorado, Wyo-
ming, and Nebraska, the Solicitor General of the United
States of America, and Basin Electric Power Cooperative,
copies of this Modified Decree duly authenticated under the
seal of this Court.
XVI. Whatever claims or defenses the parties or any of
them may have in respect to the application, interpretation,
or construction of the Act of August 9, 1937 (50 Stat. 564,
595–596), shall be determined without prejudice to any party
arising because of any development of the Kendrick Project
occurring subsequent to October 1, 1951.
XVII. The following provisions are effective for the opera-
tion of Glendo Dam and Reservoir:
(a) The operation of the Glendo Project shall not impose
any demand on areas at or above Seminoe Reservoir which
will prejudice any rights that the States of Colorado or
Wyoming might have to secure a modification of the Modi-
fied Decree permitting an expansion of water uses in the
natural basin of the North Platte River in Colorado or above
Seminoe Reservoir in Wyoming.
(b) The operation of Glendo Reservoir shall not affect the
regime of the natural flow of the North Platte River except
that not more than 40,000 acre-feet of the natural flow of
the North Platte River and its tributaries which cannot be
stored in upstream reservoirs under the provisions of this

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Modified Decree may be stored in Glendo Reservoir during
any water year for disposition by the United States under
contracts, in addition to evaporation losses on such storage,
and further, the amount of water that may be held in storage
at any one time for disposition by the United States under
contracts, including carryover storage, shall never exceed
100,000 acre-feet. Such storage water shall be disposed of
in accordance with contracts executed or to be hereafter
executed, in compliance with federal law, and may be used
for any beneficial purpose in Nebraska within the Platte
River basin to the extent of 25,000 acre-feet annually and for
any beneficial purpose in Wyoming within the Platte River
basin to the extent of 15,000 acre-feet annually. The above
limitation on the amount of storage of natural flow does not
apply: (1) to flood water which may be temporarily stored in
any capacity allocated for flood control in Glendo Reservoir;
(2) to water originally stored in Pathfinder Reservoir which
may be temporarily re-stored in Glendo Reservoir after its
release from Pathfinder and before its delivery pursuant to
contract; (3) to Inland Lakes account water temporarily
stored in accordance with this Court’s Order of April 20,
1993; (4) to water which may be impounded behind Glendo
Dam, as provided in the Bureau of Reclamation Definite Plan
Report for the Glendo Unit, Wyoming, dated December 1952,
as revised through December 1959 (Glendo Definite Plan Re-
port) for the purpose of creating a head for the development
of water power; or (5) to water in Glendo Reservoir used for
the purposes described in paragraph XVII(g).
(c) Each State may substitute or supplement quantities
of storage water obtained under other contractual arrange-
ments with Glendo Reservoir storage supplies. Subject to
contractual arrangements with the United States Bureau
of Reclamation, including any required compliance with the
Endangered Species Act, 16 U. S. C. § 1531 et seq., and the
National Environmental Policy Act, 42 U. S. C. § 4321 et seq.,
each State shall also enjoy unrestricted use of its respective

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58 NEBRASKA v. WYOMING
Appendix to Decree
storage allocation in Glendo Reservoir, so long as the use is
below Glendo Reservoir and within the Platte River basin.
(d) Glendo Reservoir storage water may be consumptively
used in Wyoming by exchange or other means, upstream of
Glendo Reservoir under the terms of this paragraph. For
every two acre-feet of Glendo storage water diverted up-
stream of Glendo Reservoir pursuant to such an exchange,
all of which may be fully consumed, an additional acre-foot
of Wyoming’s Glendo storage allocation shall be contracted
at the same time for storage and release from Glendo Reser-
voir and passed through Guernsey Reservoir to the North
Platte River. Except as may be modified in accordance with
paragraph XVII(e), or by agreement of the parties, such ad-
ditional water shall be released from the reservoir at the
same time and at a rate proportionate to the diversion of the
water contracted for use upstream from Glendo Reservoir
during the irrigation season. During the nonirrigation sea-
son, due to operational constraints of the outlets at Guernsey
Reservoir, such additional water will be held in the Glendo
account and released prior to the first of May as may be
operationally practical. Except as provided in paragraph
XVII(e), once released, such additional water shall be consid-
ered natural flow water for purposes of the 75/25 apportion-
ment specified in paragraph V.
(e) If the valid exercise or enforcement of federal law
or authority requires Wyoming or a water user within Wyo-
ming to cause the release of a portion of Wyoming’s Glendo
allocation for environmental purposes downstream of Glendo
Reservoir, the additional water contracted and released
under paragraph XVII(d) may be dedicated to and used for
that purpose. Any water released pursuant to such require-
ment shall not be considered natural flow but shall be admin-
istered and protected as storage water in accordance with
state law within both Wyoming and Nebraska until used for
its intended purposes.

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59 Cite as: 534 U. S. 40 (2001)
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(f) Storage water in Glendo Reservoir from either State’s
allocation may be used for fish and wildlife purposes down-
stream of Glendo Reservoir under contractual arrangements
with the United States Bureau of Reclamation, subject to
approval of Wyoming for contracts for water from Wyo-
ming’s storage allocation and subject to approval of Ne-
braska for contracts for water from Nebraska’s storage allo-
cation. Any water released pursuant to such agreement
shall not be considered natural flow but shall be administered
and protected as storage water in accordance with state
law within both Wyoming and Nebraska until used for its
intended purposes.
(g) The United States Bureau of Reclamation has the
discretion to hold water in Glendo Reservoir in excess of
the limitations stated in paragraph XVII(b) in accordance
with the operation of the reregulation space in Glendo Res-
ervoir under Permit No. 5998 Res. and Certificate of Con-
struction of Reservoir, as clarified by Order of the Wyoming
State Board of Control dated November 29, 2000. Such
water may be used, subject to federal law, for the following
purposes:
(1) to replace water that passed the Wyoming-Nebraska
state line in excess of the amount ordered by canals with
storage contracts below the Wyoming-Nebraska state line
as the unintended result of physical limitations on the ability
to control water deliveries;
(2) to replace evaporation from the storage ownership ac-
counts of Pathfinder Reservoir, Guernsey Reservoir, Sem-
inoe Reservoir, Alcova Reservoir, and Glendo Reservoir; and
(3) to supplement the natural flow that is available for
apportionment pursuant to paragraph V.
XVIII. The creation of the North Platte Decree Commit-
tee is hereby approved and ratified. Procedures that have
been approved and adopted in the Final Settlement Stip-
ulation may be modified from time to time by the North

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60 NEBRASKA v. WYOMING
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Platte Decree Committee if the modifications are consistent
with the Modified Decree. In the event of a conflict between
any procedure, the Final Settlement Stipulation and the
Modified Decree, the provisions of this Modified Decree
shall control.