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GRANFINANCIERA v. NORDBERG

decided: June 23, 1989.

GRANFINANCIERA, S. A., ET AL
v.
NORDBERG, CREDITOR TRUSTEE FOR THE ESTATE OF CHASE & SANBORN CORP., FKA, GENERAL COFFEE CORP.



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

Brennan, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Marshall, Stevens, and Kennedy, JJ., joined, and in Parts I, II, III, and V, of which Scalia, J., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 65. White, J., filed a dissenting opinion, post, p. 71. Blackmun, J., filed a dissenting opinion, in which O'Connor, J., joined, post, p. 91.

Author: Brennan

[ 492 U.S. Page 36]

 JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is whether a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer. We hold that the Seventh Amendment entitles such a person to a trial by jury, notwithstanding Congress' designation of fraudulent conveyance actions as "core proceedings" in 28 U.S.C. § 157(b)(2)(H) (1982 ed., Supp. V).

I

The Chase & Sanborn Corporation filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in 1983. A plan of reorganization approved by the United States Bankruptcy Court for the Southern District of Florida vested in respondent Nordberg, the trustee in bankruptcy, causes of action for fraudulent conveyances. App. to Pet. for Cert. 37. In 1985, respondent filed suit against petitioners Granfinanciera, S. A., and Medex, Ltda., in the United States District Court for the Southern District of Florida. The complaint alleged that petitioners had received $1.7 million from Chase & Sanborn's corporate predecessor within one year of the date its bankruptcy petition was filed, without receiving consideration or reasonably equivalent value in return. Id., at 39-40. Respondent sought to avoid what he alleged were constructively and actually fraudulent transfers and to recover damages, costs, expenses, and interest under 11 U.S.C. §§ 548(a)(1) and (a)(2), 550(a)(1) (1982 ed. and Supp. V). App. to Pet. for Cert. 41.

The District Court referred the proceedings to the Bankruptcy Court. Over five months later, and shortly before the Colombian Government nationalized Granfinanciera, respondent

[ 492 U.S. Page 37]

     served a summons on petitioners in Bogota, Colombia. In their answer to the complaint following Granfinanciera's nationalization, both petitioners requested a "trial by jury on all issues so triable." App. 7. The Bankruptcy Judge denied petitioners' request for a jury trial, deeming a suit to recover a fraudulent transfer "a core action that originally, under the English common law, as I understand it, was a non-jury issue." App. to Pet. for Cert. 34. Following a bench trial, the court dismissed with prejudice respondent's actual fraud claim but entered judgment for respondent on the constructive fraud claim in the amount of $1,500,000 against Granfinanciera and $180,000 against Medex. Id., at 24-30. The District Court affirmed without discussing petitioners' claim that they were entitled to a jury trial. Id., at 18-23.

The Court of Appeals for the Eleventh Circuit also affirmed. 835 F.2d 1341 (1988). The court found that petitioners lacked a statutory right to a jury trial, because the constructive fraud provision under which suit was brought -- 11 U.S.C. § 548(a)(2) (1982 ed., Supp. V) -- contains no mention of a right to a jury trial, and 28 U.S.C. § 1411 (1982 ed., Supp. V) "affords jury trials only in personal injury or wrongful death suits." 835 F.2d, at 1348. The Court of Appeals further ruled that the Seventh Amendment supplied no right to a jury trial, because actions to recover fraudulent conveyances are equitable in nature, even when a plaintiff seeks only monetary relief, id., at 1348-1349, and because "bankruptcy itself is equitable in nature and thus bankruptcy proceedings are inherently equitable." Id., at 1349. The court read our opinion in Katchen v. Landy, 382 U.S. 323 (1966), to say that "Congress may convert a creditor's legal right into an equitable claim and displace any seventh amendment right to trial by jury," and held that Congress had done so by designating fraudulent conveyance actions "core proceedings" triable by bankruptcy judges sitting without juries. 835 F.2d, at 1349.

[ 492 U.S. Page 38]

     We granted certiorari to decide whether petitioners were entitled to a jury trial, 486 U.S. 1054 (1988), and now reverse.

II

Before considering petitioners' claim to a jury trial, we must confront a preliminary argument. Respondent contends that the judgment below should be affirmed with respect to Granfinanciera -- though not Medex -- because Granfinanciera was a commercial instrumentality of the Colombian Government when it made its request for a jury trial. Respondent argues that the Seventh Amendment preserves only those jury trial rights recognized in England at common law in the late 18th century, and that foreign sovereigns and their instrumentalities were immune from suit at common law. Suits against foreign sovereigns are only possible, respondent asserts, in accordance with the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1330, 1602-1611, and respondent reads § 1330(a)*fn1 to prohibit trial by jury of a case against a foreign state. Respondent concludes that Granfinanciera has no right to a jury trial, regardless of the merits of Medex's Seventh Amendment claim.

We decline to address this argument because respondent failed to raise it below and because the question it poses has not been adequately briefed and argued. Without cross-petitioning for certiorari, a prevailing party may, of course, "defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals," Washington v. Yakima Indian Nation, 439 U.S. 463, 476, n. 20

[ 492 U.S. Page 39]

     (1979), provided that an affirmance on the alternative ground would neither expand nor contract the rights of either party established by the judgment below. See, e. g., Blum v. Bacon, 457 U.S. 132, 137, n. 5 (1982); United States v. New York Telephone Co., 434 U.S. 159, 166, n. 8 (1977). Respondent's present defense of the judgment, however, is not one he advanced below.*fn2 Although "we could consider grounds supporting [the] judgment different from those on which the Court of Appeals rested its decision," "where the ground presented here has not been raised below we exercise this authority 'only in exceptional cases.'" Heckler v. Campbell, 461 U.S. 458, 468-469, n. 12 (1983), quoting McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 (1940).

[ 492 U.S. Page 40]

     This is not such an exceptional case. Not only do we lack guidance from the District Court or the Court of Appeals on this issue, but difficult questions remain whether a jury trial is available to a foreign state upon request under 28 U.S.C. § 1330 and, if not, under what circumstances a business enterprise that has since become an arm of a foreign state may be entitled to a jury trial. Compare Gould, Inc. v. Pechiney Page 40} Ugine Kuhlmann, 853 F.2d 445, 450 (CA6 1988) (jurisdiction under 28 U.S.C. § 1330 determined by party's status when act complained of occurred); Morgan Guaranty Trust Co. of N. Y. v. Republic of Palau, 639 F. Supp. 706, 712-716 (SDNY 1986) (status at time complaint was filed is decisive for § 1330 jurisdiction), with Callejo v. Bancomer, S. A., 764 F.2d 1101, 1106-1107 (CA5 1985) (FSIA applies even though bank was nationalized after suit was filed); Wolf v. Banco Nacional de Mexico, S. A., 739 F.2d 1458, 1460 (CA9 1984) (same), cert. denied, 469 U.S. 1108 (1985). Moreover, petitioners alleged in their reply brief, without contradiction by respondent at oral argument, that affirmance on the ground that respondent now urges would "unquestionably enlarge the respondent's rights under the circuit court's decision and concomitantly decrease those of the petitioner" by "open[ing] up new areas of discovery in aid of execution" and by allowing respondent, for the first time, to recover any judgment he wins against Granfinanciera from Colombia's central banking institutions and possibly those of other Colombian governmental instrumentalities. Reply Brief for Petitioners 19. Whatever the merits of these claims, their plausibility, coupled with respondent's failure to offer rebuttal, furnishes an additional reason not to consider respondent's novel argument in support of the judgment at this late stage in the litigation. We therefore leave for another day the questions respondent's argument raises under the FSIA.

III

Petitioners rest their claim to a jury trial on the Seventh Amendment alone.*fn3 The Seventh Amendment provides: "In

[ 492 U.S. Page 41]

     Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ." We have consistently interpreted the phrase "Suits at common law" to refer to "suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830). Although "the thrust of the

[ 492 U.S. Page 42]

     Amendment was to preserve the right to jury trial as it existed in 1791," the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty. Curtis v. Loether, 415 U.S. 189, 193 (1974).

The form of our analysis is familiar. "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature." Tull v. United States, 481 U.S. 412, 417-418 (1987) (citations omitted). The second stage of this analysis is more important than the first. Id., at 421. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder.*fn4

[ 492 U.S. Page 43]

     A

There is no dispute that actions to recover preferential or fraudulent transfers were often brought at law in late 18th-century England. As we noted in Schoenthal v. Irving Trust Co., 287 U.S. 92, 94 (1932) (footnote omitted): "In England, long prior to the enactment of our first Judiciary Act, common law actions of trover and money had and received were resorted to for the recovery of preferential payments by bankrupts." See, e. g., Smith v. Payne, 6 T. R. 152, 101 Eng. Rep. 484 (K. B. 1795) (trover); Barnes v. Freeland, 6 T. R. 80, 101 Eng. Rep. 447 (K. B. 1794) (trover); Smith v. Hodson, 4 T. R. 211, 100 Eng. Rep. 979 (K. B. 1791) (assumpsit; goods sold and delivered); Vernon v. Hanson, 2 T. R. 287, 100 Eng. Rep. 156 (K. B. 1788) (assumpsit; money had and received); Thompson v. Freeman, 1 T. R. 155, 99 Eng. Rep. 1026 (K. B. 1786) (trover); Rust v. Cooper, 2 Cowp. 629, 98 Eng. Rep. 1277 (K. B. 1777) (trover); Harman v. Fishar, 1 Cowp. 117, 98 Eng. Rep. 998 (K. B. 1774) (trover); Martin v. Pewtress, 4 Burr. 2477, 98 Eng. Rep. 299 (K. B. 1769) (trover); Alderson v. Temple, 4 Burr. 2235, 98 Eng. Rep. 165 (K. B. 1768) (trover). These actions, like all suits at law, were conducted before juries.

Respondent does not challenge this proposition or even contend that actions to recover fraudulent conveyances or preferential transfers were more than occasionally tried in courts of equity. He asserts only that courts of equity had concurrent jurisdiction with courts of law over fraudulent conveyance actions. Brief for Respondent 37-38. While respondent's assertion that courts of equity sometimes provided relief in fraudulent conveyance actions is true, however, it hardly suffices to undermine petitioners' submission that the present action for monetary relief would not have sounded in equity 200 years ago in England. In Parsons v. Bedford, supra, at 447 (emphasis added), we contrasted suits at law with "those where equitable rights alone were recognized" in holding that the Seventh Amendment right to a jury

[ 492 U.S. Page 44]

     trial applies to all but the latter actions. Respondent adduces no authority to buttress the claim that suits to recover an allegedly fraudulent transfer of money, of the sort that he has brought, were typically or indeed ever entertained by English courts of equity when the Seventh Amendment was adopted. In fact, prior decisions of this Court, see, e. g., Buzard v. Houston, 119 U.S. 347, 352-353 (1886), and scholarly authority compel the contrary conclusion:

"[W]hether the trustee's suit should be at law or in equity is to be judged by the same standards that are applied to any other owner of property which is wrongfully withheld. If the subject matter is a chattel, and is still in the grantee's possession, an action in trover or replevin would be the trustee's remedy; and if the fraudulent transfer was of cash, the trustee's action would be for money had and received. Such actions at law are as available to the trustee to-day as they were in the English courts of long ago. If, on the other hand, the subject matter is land or an intangible, or the trustee needs equitable aid for an accounting or the like, he may invoke the equitable process, and that also is beyond dispute." 1 G. Glenn, Fraudulent Conveyances and Preferences § 98, pp. 183-184 (rev. ed. 1940) (footnotes omitted).

The two cases respondent discusses confirm this account of English practice. Ex parte Scudamore, 3 Ves. jun. 85, 30 Eng. Rep. 907 (Ch. 1796), involved the debtor's assignment of his share of a law partnership's receivables to repay a debt shortly before the debtor was declared bankrupt. Other creditors petitioned chancery for an order directing the debtor's law partner to hand over for general distribution among creditors the debtor's current and future shares of the partnership's receivables, which he held in trust for the assignee. The Chancellor refused to do so, finding the proposal inequitable. Instead, he directed the creditors to bring an action at law against the assignee if they thought themselves entitled

[ 492 U.S. Page 45]

     to relief. Although this case demonstrates that fraudulent conveyance actions could be brought in equity, it does not show that suits to recover a definite sum of money would be decided by a court of equity when a petitioner did not seek distinctively equitable remedies. The creditors in Ex parte Scudamore asked the Chancellor to provide injunctive relief by ordering the debtor's former law partner to convey to them the debtor's share of the partnership's receivables that came into his possession in the future, along with receivables he then held in trust for the debtor. To the extent that they asked the court to order relinquishment of a specific preferential transfer rather than ongoing equitable relief, the Chancellor dismissed their suit and noted that the proper means of recovery would be an action at law against the transferee. Respondent's own cause of action is of precisely that sort.

Hobbs v. Hull, 1 Cox 445, 29 Eng. Rep. 1242 (Ch. 1788), also fails to advance respondent's case. The assignees in bankruptcy there sued to set aside an alleged fraudulent conveyance of real estate in trust by a husband to his wife, in return for her relinquishment of a cause of action in divorce upon discovering his adultery. The court dismissed the suit, finding that the transfer was not fraudulent, and allowed the assignees to bring an ejectment or other legal action in the law courts. The salient point is that the bankruptcy assignees sought the traditional equitable remedy of setting aside a conveyance of land in trust, rather than the recovery of money or goods, and that the court refused to decide their legal claim to ejectment once it had ruled that no equitable remedy would lie. The court's sweeping statement that "Courts of Equity have most certainly been in the habit of exercising a concurrent jurisdiction with the Courts of Law on the statutes of Elizabeth respecting fraudulent conveyances," id., at 445-446, 30 Eng. Rep., at 1242, is not supported by reference to any cases that sought the recovery of a fixed sum of money without the need for an accounting or

[ 492 U.S. Page 46]

     other equitable relief. Nor has respondent repaired this deficit.*fn5 We therefore conclude that respondent would have had to bring his action to recover an alleged fraudulent conveyance

[ 492 U.S. Page 47]

     of a determinate sum of money at law in 18th-century England, and that a court of equity would not have adjudicated it.*fn6

B

The nature of the relief respondent seeks strongly supports our preliminary finding that the right he invokes should be denominated legal rather than equitable. Our decisions establish beyond peradventure that "[i]n cases of fraud or mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a bill in equity to obtain only a decree for the payment of money by way of

[ 492 U.S. Page 48]

     damages, when the like amount can be recovered at law in an action sounding in tort or for money had and received." Buzard v. Houston, 119 U.S., at 352, citing Parkersburg v. Brown, 106 U.S. 487, 500 (1883); Ambler v. Choteau, 107 U.S. 586 (1883); Litchfield v. Ballou, 114 U.S. 190 (1885). See also Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 454, n. 11 (1977) ("the otherwise legal issues of voidable preferences"); Pernell v. Southall Realty, 416 U.S. 363, 370 (1974) ("'[W]here an action is simply for the recovery . . . of a money judgment, the action is one at law'"), quoting Whitehead v. Shattuck, 138 U.S. 146, 151 (1891); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 476 (1962) ("Petitioner's contention . . . is that insofar as the complaint requests a money judgment it presents a claim which is unquestionably legal. We agree with that contention"); Gaines v. Miller, 111 U.S. 395, 397-398 (1884) ("Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. The remedy at law is adequate and complete") (citations omitted).

Indeed, in our view Schoenthal v. Irving Trust Co., 287 U.S. 92 (1932), removes all doubt that respondent's cause of action should be characterized as legal rather than as equitable. In Schoenthal, the trustee in bankruptcy sued in equity to recover alleged preferential payments, claiming that it had no adequate remedy at law. As in this case, the recipients of the payments apparently did not file claims against the bankruptcy estate. The Court held that the suit had to proceed at law instead, because the long-settled rule that suits in equity will not be sustained where a complete remedy exists at law, then codified at 28 U.S.C. § 384, "serves to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed." 287 U.S., at 94. The Court found that the trustee's suit -- indistinguishable from respondent's suit in all relevant respects -- could not go forward in equity because an adequate remedy

[ 492 U.S. Page 49]

     was available at law. There, as here, "[t]he preferences sued for were money payments of ascertained and definite amounts," and "[t]he bill discloses no facts that call for an accounting or other equitable relief." Id., at 95. Respondent's fraudulent conveyance action plainly seeks relief traditionally provided by law courts or on the law side of courts having both legal and equitable dockets.*fn7 Unless Congress may and has permissibly withdrawn jurisdiction over that action by courts of law and assigned it exclusively to non-Article III tribunals sitting without juries, the Seventh Amendment guarantees petitioners a jury trial upon request.

IV

Prior to passage of the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2549 (1978 Act), "[s]uits to recover preferences constitute[d] no part of the proceedings in bankruptcy."

[ 492 U.S. Page 50]

     A

In Atlas Roofing, we noted that "when Congress creates new statutory 'public rights,' it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment's injunction that jury trial is to be 'preserved' in 'suits at common law.'" 430 U.S., at 455 (footnote omitted). We emphasized, however, that Congress' power to block application of the Seventh Amendment to a cause of action has limits. Congress may only deny trials by jury in actions at law, we said, in cases where "public rights" are litigated: "Our prior cases support administrative factfinding in only those situations involving 'public rights,' e. g., where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights. Wholly private tort, contract, and property cases, as well as a vast range of other cases, are not at all implicated." Id., at 458.*fn8

We adhere to that general teaching. As we said in Atlas Roofing: "'On the common law side of the federal courts, the aid of juries is not only deemed appropriate but is required by the Constitution itself.'" Id., at 450, n. 7, quoting Crowell v. Benson, 285 U.S. 22, 51 (1932). Congress may devise novel causes of action involving public rights free from the strictures of the Seventh Amendment if it assigns their adjudication to tribunals without statutory authority to employ juries as factfinders.*fn9 But it lacks the power to strip parties

[ 492 U.S. Page 52]

     contesting matters of private right of their constitutional right to a trial by jury. As we recognized in Atlas Roofing, to hold otherwise would be to permit Congress to eviscerate the Seventh Amendment's guarantee by assigning to administrative agencies or courts of equity all causes of action not grounded in state law, whether they originate in a newly fashioned regulatory scheme or possess a long line of common-law forebears. 430 U.S., at 457-458. The Constitution nowhere grants Congress such puissant authority. "[L]egal claims are not magically converted into equitable issues by their presentation to a court of equity," Ross v. Bernhard, 396 U.S. 531, 538 (1970), nor can Congress conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal.

[ 492 U.S. Page 53]

     In certain situations, of course, Congress may fashion causes of action that are closely analogous to common-law claims and place them beyond the ambit of the Seventh Amendment by assigning their resolution to a forum in which jury trials are unavailable. See, e. g., Atlas Roofing, supra, at 450-461 (workplace safety regulations); Block v. Hirsh, 256 U.S. 135, 158 (1921) (temporary emergency regulation of rental real estate). See also Pernell v. Southall Realty, 416 U.S., at 382-383 (discussing cases); Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284 (1856) (Congress "may or may not bring within the cognizance of the courts of the United States, as it may deem proper," matters involving public rights). Congress' power to do so is limited, however, just as its power to place adjudicative authority in non-Article III tribunals is circumscribed. See Thomas v. Page 53} Union Carbide Agricultural Products Co., 473 U.S. 568, 589, 593-594 (1985); id., at 598-600 (Brennan, J., concurring in judgment); Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73-76 (1982) (opinion of Brennan, J.); id., at 91 (Rehnquist, J., concurring in judgment). Unless a legal cause of action involves "public rights," Congress may not deprive parties litigating over such a right of the Seventh Amendment's guarantee to a jury trial.

In Atlas Roofing, supra, at 458, we noted that Congress may effectively supplant a common-law cause of action carrying with it a right to a jury trial with a statutory cause of action shorn of a jury trial right if that statutory cause of action inheres in, or lies against, the Federal Government in its sovereign capacity. Our case law makes plain, however, that the class of "public rights" whose adjudication Congress may assign to administrative agencies or courts of equity sitting without juries is more expansive than Atlas Roofing 's discussion suggests. Indeed, our decisions point to the conclusion that, if a statutory cause of action is legal in nature, the question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal. For if a statutory cause of action, such as respondent's right to recover a fraudulent conveyance under 11 U.S.C. § 548(a)(2), is not a "public right" for Article III purposes, then Congress may not assign its adjudication to a specialized non-Article III court lacking "the essential attributes of the judicial power." Crowell v. Benson, supra, at 51. And if the action must be tried under the auspices of an Article III court, then the Seventh Amendment affords the parties a right to a jury trial whenever the cause of action is legal in nature. Conversely, if Congress may assign the adjudication of a statutory cause of action to a non-Article III tribunal, then the

[ 492 U.S. Page 54]

     Seventh Amendment poses no independent bar to the adjudication of that action by a non-jury factfinder. See, e. g., Atlas Roofing, supra, at 453-455, 460; Pernell v. Southall Realty, supra, at 383; Block v. Hirsh, supra, at 158. In addition to our Seventh Amendment precedents, we therefore rely on our decisions exploring the restrictions Article III places on Congress' choice of adjudicative bodies to resolve disputes over statutory rights to determine whether petitioners are entitled to a jury trial.

In our most recent discussion of the "public rights" doctrine as it bears on Congress' power to commit adjudication of a statutory cause of action to a non-Article III tribunal, we rejected the view that "a matter of public rights must at a minimum arise 'between the government and others.'" Northern Pipeline Construction Co., supra, at 69 (opinion of Brennan, J.), quoting Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). We held, instead, that the Federal Government need not be a party for a case to revolve around "public rights." Thomas v. Union Carbide Agricultural Products Co., 473 U.S., at 586; id., at 596-599 (Brennan, J., concurring in judgment). The crucial question, in cases not involving the Federal Government, is whether "Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, [has] create[d] a seemingly 'private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Id., at 593-594. See id., at 600 (Brennan, J., concurring in judgment) (challenged provision involves public rights ...


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