that a willful failure to file a required report is a form of concealment prohibited by 18 U. S. C. § 1001. Concluding that Congress presumably intended someone in respondent's position to be punished only under the currency reporting misdemeanor, the Court of Appeals reversed respondent's felony conviction for making a false statement. See 726 F.2d, at 1327.

The Court of Appeals plainly misapplied the Blockburger rule for determining whether Congress intended to permit cumulative punishment; proof of a currency reporting violation does not necessarily include proof of a false statement offense. Section 1001 proscribes the nondisclosure of a material fact only if the fact is "conceal[ed] . . . by any trick, scheme, or device." (Emphasis added.) A person could, without employing a "trick, scheme, or device," simply and willfully fail to file a currency disclosure report. A traveler who enters the country and passes through Customs prepared to answer questions truthfully, but is never asked whether he is carrying over $5,000 in currency, might nonetheless be subject to conviction under 31 U. S. C. § 1058 (1976 ed.) for willfully transporting money without filing the required currency report. However, because he did not conceal a material fact by means of a "trick, scheme, or device," (and did not make any false statement) his conduct would not fall within 18 U. S. C. § 1001.5

There is no evidence in 18 U. S. C. § 1001 and 31 U. S. C. §§ 1058, 1101 (1976 ed.) that Congress did not intend to allow separate punishment for the two different offenses. See generally Albernaz v. United States, 450 U. S. 333, 340

* In Woodward's case, the Government did not have to prove the existence of a trick, scheme, or device. Woodward was charged with violating § 1001 because he made a false statement on the customs form. This type of affirmative misrepresentation is proscribed under the statute even if not accompanied by a trick, scheme, or device.

5 See United States v. London, 550 F. 2d 206, 213 (CA5 1977) (§ 1001 requires "affirmative act by which means a material fact is concealed").

Sec

(1981); Missouri v. Hunter, 459 U. S. 359, 367 (1983). tions 1058 and 1101 were enacted by Congress in 1970 as part of the Currency and Foreign Transactions Reporting Act, Pub. L. 91-508, Tit. II, 84 Stat. 1118 et seq. Section 203(k) of that Act expressly provided:

"For the purposes of section 1001 of title 18, United States Code, the contents of reports required under any provision of this title are statements and representations in matters within the jurisdiction of an agency of the United States." 31 U. S. C. § 1052(k) (1976 ed.).

It is clear that in passing the currency reporting law, Congress' attention was drawn to 18 U. S. C. § 1001, but at no time did it suggest that the two statutes could not be applied together. We cannot assume, therefore, that Congress was unaware that it had created two different offenses permitting multiple punishment for the same conduct. See Albernaz, supra, at 341–342.

Finally, Congress' intent to allow punishment under both 18 U. S. C. § 1001 and 31 U. S. C. §§ 1058, 1101 (1976 ed.) is shown by the fact that the statutes "are directed to separate evils." See Albernaz, supra, at 343. The currency reporting statute was enacted to develop records that would "have a high degree of usefulness in criminal, tax, or regulatory investigations." 31 U. S. C. § 1051 (1976 ed.). The false statement statute, on the other hand, was designed "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described." United States v. Gilliland, 312 U. S. 86, 93 (1941).

All guides to legislative intent reveal that Congress intended respondent's conduct to be punishable under both 18

"When Title 31 was recodified in 1982, this provision was eliminated as "[u]nnecessary" because "Section 1001 applies unless otherwise provided." H. R. Rep. No. 97-651, p. 301 (1982).

U. S. C. §1001, and 31 U. S. C. §§ 1058, 1101 (1976 ed.). Accordingly, the petition for a writ of certiorari is granted, and that part of the Court of Appeals' judgment reversing respondent's 18 U. S. C. § 1001 conviction is reversed.

It is so ordered.

Syllabus

TRANS WORLD AIRLINES, INC. v. THURSTON ET AL.

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

No. 83-997. Argued October 9, 1984-Decided January 8, 1985* The Age Discrimination in Employment Act (ADEA) was amended in 1978 to prohibit the mandatory retirement of a protected employee because of his age. Concerned that its retirement policy, at least as it applied to flight engineers, violated the ADEA, petitioner Trans World Airlines (TWA) adopted a plan permitting any employee in "flight engineer status" at age 60 to continue working in that capacity. The plan, however, does not give 60-year-old captains (pilots) the right automatically to begin training as flight engineers. Instead, a captain may remain with the airline only if he has been able to obtain "flight engineer status" through the bidding procedures outlined in the collective-bargaining agreement between TWA and petitioner Air Line Pilots Association (ALPA). These procedures require a captain, prior to his 60th birthday, to submit a "standing bid" for the position of flight engineer. When a vacancy occurs, it is assigned to the most senior captain with a standing bid. If no vacancy occurs prior to his 60th birthday, or if he lacks sufficient seniority to bid successfully for those vacancies that do occur, the captain is retired. Under the collective-bargaining agreement, a captain displaced for any reason besides age need not resort to the bidding procedure. For example, a captain who is medically disabled or whose position is eliminated due to reduced manpower may displace automatically, or "bump," a less senior flight engineer. Respondent former TWA captains (hereafter respondents) were retired upon reaching age 60. Each was denied an opportunity to "bump" a less senior flight engineer. Two of them were forced to retire before TWA adopted its new plan and thus were denied an opportunity to become flight engineers through the bidding procedures. The third filed a standing bid for the position of flight engineer but no vacancies occurred prior to his 60th birthday, and he too was forced to retire. Respondents filed an action against TWA and ALPA in Federal District Court, claiming that TWA's transfer policy violated § 4(a)(1) of the ADEA-which proscribes differential treatment of older workers "with respect to .. [a] privileg[e] of employment"-because, while it allowed captains displaced for rea

*Together with No. 83-1325, Air Line Pilots Association, International v. Thurston et al., also on certiorari to the same court.

sons other than age to "bump" less senior flight engineers, it did not allow the same "privilege of employment" to captains compelled to vacate their positions upon reaching age 60. The District Court entered summary judgment in favor of TWA and ALPA, holding that respondents had failed to establish a prima facie case of age discrimination under the test set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, and that the affirmative defenses provided by §4(f)(1)—an employer may take "any action otherwise prohibited" where age is a "bona fide occupational qualification [BFOQ]"-and § 4(f)(2)—it is not unlawful for an employer to adopt a "bona fide seniority system" of the ADEA justified TWA's transfer policy. The Court of Appeals reversed, holding that the McDonnell Douglas test was inapposite because respondents had adduced direct proof of age discrimination; that TWA was required by § 4(a)(1) to afford 60-year-old captains the same "privilege of employment," i. e., "bumping" less senior flight engineers, allowed captains disqualified for reasons other than age; that the affirmative defenses of the ADEA did not justify TWA's discriminatory transfer policy; and that TWA was liable for "liquidated" or double damages under § 7(b) of the ADEA, because its violation of the ADEA was "willful" within the meaning of that section.

Held:

1. TWA's transfer policy denies 60-year-old captains a "privilege of employment" on the basis of age in violation of § 4(a)(1) of the ADEA. Captains disqualified because of age are not afforded the same "bumping" privilege as captains disqualified for reasons other than age, but instead must resort to the bidding procedures. While the ADEA does not require TWA to grant transfer privileges to disqualified captains, nevertheless, if it does grant some disqualified captains the "privilege" of "bumping" less senior flight engineers, it may not deny the opportunity to others because of their age. The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. Here, there is direct evidence that the transfer method available to a captain depends on his age. Since it allows captains disqualified for any reason other than age to "bump" less senior flight engineers, TWA's transfer policy is discriminatory on its face. Pp. 120-122.

2. The affirmative defenses provided by §§ 4(f)(1) and (2) do not support the argument that TWA's discriminatory transfer policy is justified. The BFOQ defense is meritless because age is not a BFOQ for the position of flight engineer. Nor can TWA's policy be viewed as part of a bona fide seniority system. A system that includes this discriminatory transfer policy permits the forced retirement of captains on the basis of age. Pp. 122-125.