Transcript

IN THE SUPREME COURT OF THE UNITED STATES

GOLDEN STATE TRANSIT CORP., Petitioner v. CITY OF LOS ANGELES

No. 88-840

October 3, 1989

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 9:59 a.m.

APPEARANCES:

ZACHARY D. FASMAN, ESQ., Washington, D.C.; on behalf of the Petitioner.

JOHN F. HAGGERTY, ESQ., Assistant City Attorney, Los Angeles, California; on behalf of the Respondent.

PROCEEDINGS

9:59 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in Number 88-840, Golden State Transit Corporation v. the City of Los Angeles.

Mr. Fasman.

ORAL ARGUMENT OF ZACHARY D. FASMAN ON BEHALF OF PETITIONER

MR. FASMAN: Mr. Chief Justice, and may it please the Court:

The City of Los Angeles forced Golden State out of business because we refused to settle a labor dispute with the Teamsters.

This Court held that the city's decision to deny us a franchise was precluded by the language and legislative history of the National Labor Relations Act because Congress intended to allow management and labor full freedom to bargain and to use economic weapons during a labor dispute without government sanction. Where Congress decrees that specific private conduct shall be free from government sanction and then a sanction is imposed upon that conduct by a city, a classic case for the application of Section 1983 is presented.

This is especially true here, because the improper destruction of a lawful business is a property injury that has been recognized in our courts for 200 years as deserving of full compensation. Full recoveries traditionally have been available against cities who partake of no Eleventh Amendment immunity from damages.

The rule in our courts under Section 1983 is that cities are fully liable for the consequences of their illegal actions.

QUESTION: Mr. Fasman, are you contending that merely because there was a Supremacy Clause violation you're entitled to recover under Section 1983?

MR. FASMAN: No, we are not. The test under Section 1983 is whether we were denied rights, privileges and immunities secured by federal law.

Our position is that the traditional Section 1983 tests, repeatedly endorsed by this Court, should govern whether -- the question of whether we were denied such rights, privileges and immunities.

QUESTION: And so what -- what federal law was it that protected this right that you say was denied to you?

MR. FASMAN: The National Labor Relations Act.

QUESTION: The National Labor law.

MR. FASMAN: Yes.

No, we don't -- we don't contend that all Supremacy Clause claims arise under Section 1983, as I think we've made clear in our -- in our papers.

The traditional test endorsed by this Court under Section 1983 require a finding that we did -- we were in fact denied, rights, privileges and immunities under federal law.

This Court repeatedly has made clear that rights enforceable under the statute arise when the constitutional or a federal statute imposes mandatory obligations upon local government.

QUESTION: Well, Mr. Fasman, would you explain how a mere finding of preemption by the federal labor law satisfies the test?

MR. FASMAN: Well, I think that in this case the mere finding of preemption rested upon the proposition that Congress specifically decreed that private parties shall have the right to engage in certain conduct; that is, collective bargaining and the use of economic weapons during a labor dispute.

I think that that is different than the normal type of finding of -- of preemption that involves, for example, federal regulatory schemes and more amorphous findings.

In this case, we have specific rights that were granted to us by Congress, and those rights were obviously -- were obviously denied when we were put out of business for our -- for our exercising them.

It seems to me that -- that what this Court's initial opinion said was that the -- was that this case involves mandatory obligations that is -- that are imposed upon the city by federal law. The court's first -- first ruling in Golden State reaffirm that the language and legislative history of the National Labor Relations Act evidence clear Congressional intent to ban all municipal coercion at the bargaining table, and that's been accepted federal law since the 1976 ruling in the Machinists case.

This is not a case like Pennhurst in which Congress has exhorted rather than commanded.

Equally important, this mandatory ban on municipal coercion was intended for the especial benefit of unions and employers like Golden State. We do not stand before the Court as an incidental beneficiary of the law designed to protect the general public weal.

The preface to the Taft-Hartley Act is specific. It states that the purpose of the law is to prescribe the legitimate rights of employers and employees. The National Labor Relations Act speaks -- speaks in terms of the parties' rights and obligations. The right to strike is granted to organized labor. The lockout inheres in management, and Congress granted both sides full freedom of contract and the -- the right to resist the other's economic strength during a labor dispute.

These are not generic public rights of equal interest to all citizens. They are specific entitlements granted by Congress to the parties in order to allow them a meaningful opportunity to order their own affairs without government interference.

QUESTION: In -- in the Golden State case that we decided, was that a 1983 case?

MR. FASMAN: Yes, this was pleaded under 1983 at the time.

QUESTION: And what was the relief granted?

MR. FASMAN: The Court --

QUESTION: A judgment or an injunction?

MR. FASMAN: A judgment. The Court did not reach the issue of relief in that case.

QUESTION: Was there a prayer for an injunction?

MR. FASMAN: There is a prayer for declaratory relief, injunctive relief and damages, yes.

QUESTION: We just -- we just ended up with a judgment?

MR. FASMAN: Yes, that's right, and remanded for further proceedings not inconsistent.

It came before the Court, as I remember --

QUESTION: Was there any claim in that case that the preemption claim was not a proper subject for a 1983 case?

MR. FASMAN: That did not come up the last time we argued the case.

QUESTION: It was not -- it was not raised?

MR. FASMAN: It was not raised, that's right.

QUESTION: But I suppose if it had been raised, there would be the same sort of an -- would have been a same sort of an argument then as there is here.

MR. FASMAN: Well, that's right. We're still on the pleadings in this case. That's exact -- that's exactly right.

The case, Justice White, the case came up on summary judgment that was granted to the city, and that summary judgment, this Court found, was wrong as a matter of law, and the remedial issue was not -- was not reached in the case.

QUESTION: At any point in the proceedings has the city contested the award of the ancillary damages?

MR. FASMAN: Yes. The city -- the city in the district court opposed the award of ancillary damages and indicated that they were not -- that ancillary damages were not properly entered in this case either as a matter of law or as a matter of fact.

QUESTION: Well, I -- I know it's not an issue before us here. I assume it's not an issue before us here, but I'm curious to know. What is the authority for the ancillary damages, because the answer to that might bear upon the issues we're discussing here today?

MR. FASMAN: Well, the -- the authority, Justice Kennedy, is -- is basically the equitable authority that inheres in the Court to assure that injunctive relief is not -- is not a hollow remedy or a nullity. That was the basis upon which the -- the lower court ruled and I believe the -- the -- I can't recall quite precisely right now what the name of those cases are.

QUESTION: And -- and -- and we have some authority to address --

MR. FASMAN: Yes, there is Supreme Court authority to that -- to that effect.

I have to say that the ancillary damages that -- that the district court awarded in this case, as we pointed out in the papers, are likely to yield nothing to Golden State because the Court balanced our tangible assets against our intangible liabilities, and it's plainly an -- an inadequate remedy.

The question before the Court, it seems -- it seems to me, and the question raised by the Ninth Circuit below, is whether there is any warrant for departing from the traditional Section 1983 tests in this case.

We say no. The essential question in every Section 1983 case, preemption or otherwise, is the same: Have federally guaranteed rights, privileges or immunities have been denied?

If so, and if Congress has not foreclosed access to Section 1983 by devising an alternative statutory remedy, Section 1983 is available.

None of the briefs before the Court claim that Section 1983 is inapplicable in every preemption case, and the court below did not so hold.

The Supremacy Clause is involved in some way in every Section 1983 case, statutory or constitutional, because it alone obliges local governments to obey federal law. Even in constitutional cases, the Supremacy Clause is violated because the local government has failed to accord federal law the priority that it deserves.

Thus, it cannot be that Section 1983 never applies in any preemption case or any case involving the Supremacy Clause because, by definition, every Section 1983 case in some way involves the Supremacy Clause.

For this reason, all of the briefs before the Court --

QUESTION: That -- that's not -- that goes a little far, doesn't it? I mean, you -- you -- you can -- you can act under color of state law even when a state law does not in fact contradict the federal law. You simply purport to be acting under state law, and in that case the Supremacy Clause would not be involved.

MR. FASMAN: That -- that --

QUESTION: Isn't that right?

MR. FASMAN: I do stand corrected. That's right.

QUESTION: Yeah. I --

MR. FASMAN: The private conduct. That's exactly right. Undertaken -- under color of state law; that is right.

QUESTION: Furthermore, the Fourteenth Amendment is directly applicable to the states.

MR. FASMAN: Well, it is --

QUESTION: It says no state shall deprive, and Congress has specific authority under that, under the -- the fifth clause of the Fourteenth Amendment, to pass legislation to enforce it.

So, I should think if the Constitution did not have a Supremacy Clause it wouldn't make any difference.

MR. FASMAN: I think -- I think this may be a very nice juridical -- juridical point. I think that may be -- that may be right if there were no Supremacy Clause, but there is a Supremacy Clause; and whatever the Fourteenth Amendment says, even if it says no state shall deny, nonetheless, the point that I'm making is that the Supremacy Clause says that the state shall obey that amendment.

So, it is involved in some way in every -- in every case, although that -- it is an interesting case, as if there were no Supremacy Clause.

My point is, though, that the dispute before the Court is not whether Section 1983 applies in some preemption cases. Everyone seems to agree that it does. The dispute is what test should be used to determine whether Section 1983 applies.

We see absolutely no reason to depart from the traditional standards used by this Court and by most courts below in this -- in this or any other Section 1983 case. Under those standards, whether Congress created rights, privileges or immunities depends upon the intent of the legislature.

QUESTION: Mr. Fasman, maybe this really isn't a difference, but the rule you rely on that a preemption based on the Machinists analysis and so forth, you could really say that's a judge-made rule of law rather than the clear statutory directive as we have in most 1983 cases.

Do you think that makes any difference?

MR. FASMAN: I think the question in all Section 1983 cases goes back to the intent of the legislature. I think Machinists is based upon a clear read -- reading of the language, legislative history of the National Labor Relations Act and, in fact, has a statutory basis.

It is true that it was iterated by the Court, but I think the foundation of Machinists is very clear both in term -- both in terms of the language and the legislative history. So I don't think that makes a difference. I think the test is the same.

The question is what did Congress intend, and that's our basic point here. The Court's already determined in its ruling what Congress intended. We went back down to the Ninth Circuit and the court below, and they said, well, we don't have to look at congressional intent. That's not the test.

QUESTION: Are you saying that our -- our first opinion in Golden State three years ago decided this case?

MR. FASMAN: I think, in essence, it did. It did not in so many -- in so many words, because, Mr. Chief Justice, what the Court said was that -- and reiterated, actually, that management and labor have these freedoms; that Congress protected this conduct from government sanction. That should, in our view, have resolved this matter.

QUESTION: Well, what -- what is your response to the argument of Respondents that the National Labor Relations Act essentially creates rights in -- in employees and employers enforceable against one another?

MR. FASMAN: Well, the -- the simple answer to that is that that is directly contrary to the interpretive approach that this Court has taken in Machinists and H. K. Porter in the whole second branch of the preemption -- in the preemption doctrine.

The court below -- one of our fundamental points here is that the court below didn't have the authority to reinterpret the NLRA in a narrowly-cabined version as they did.

This Court has interpreted Section 8(d) and has extended the express prohibition on NLRB coercion and bargaining to state and local governments on the basis of Congressional intent, which that should -- this Court's rulings along those lines should have resolved that issue.

QUESTION: To put it more briefly, your response to that argument is that we decided otherwise in Golden State One.

MR. FASMAN: Golden State One --

QUESTION: Specifically what we decided --

MR. FASMAN: That's right. That's exactly right.

QUESTION: That you had an enforceable right not only against the -- not only against the employees but also against the -- the state.

MR. FASMAN: And that's been accepted law at least since the '76 decision in the Machinists case, where the Court -- where the Court first -- first declared the second branch -- second branch of the preemption doctrine.

QUESTION: On -- on remand and in Golden State One, was there an injunction entered?

MR. FASMAN: The Court was prepared to enter an injunction giving us a franchise for four years.

QUESTION: But it didn't?

MR. FASMAN: Well, we stayed -- this -- this case comes -- comes before the Court on certification. We stayed all the proceedings --

QUESTION: Oh, I see.

MR. FASMAN: -- in -- in the district court so that we could resolve this issue of compensatory damages or our right to compensatory damages before proceeding to other remedial issues.

QUESTION: Of course, if there were an injunction ever entered, it certainly would have been based on the fact that -- that this preemption, this so-called preemption right really entitled somebody to an injunction.

MR. FASMAN: Well, not only -- not only did the court -- were the courts below willing to enter an injunction, but the city admitted that injunctive relief was appropriate here, thus admitting we have a cause of action --

QUESTION: And I suppose that was based a lot on our decision in Golden State One?

(Laughter)

MR. FASMAN: I presume that it was directly based on that decision.

But it seems to me that the question and the point that you raised, Justice White, is -- is exactly -- is exactly right. Where's the warrant for partial enforcement of these obligations that the Court imposed upon municipalities?

The decision below, the Ninth Circuit said in so many words that it was free to ignore congressional intent, and it created an entirely new test that would be applied to this case that undercuts this Court's ruling in Golden State.

The Ninth Circuit concluded that even though Congress intended to ban the city's conduct, Section 1983 relief was not available, and I quote, because, quote, "The National Labor Relations Act does not explicitly prohibit the city from acting in the area of labor relations."

This Court's never sanctioned any explicit prohibition test in any Section 1983 cases. Judge Alarcon noted in his concurrence below, this Court repeatedly has held that in deciding whether Congress created rights, privileges or immunities, the key to the inquiry is the intent of the legislature.

QUESTION: I don't know what we held in Golden State One if we didn't hold the opposite of that statement.

MR. FASMAN: I don't think -- I don't follow your -- your point, Justice Scalia.

QUESTION: I -- I'm agreeing with you. I'm saying I don't know what we --

MR. FASMAN: I thought you were.

(Laughter)

QUESTION: I don't know what we held in Golden State One if we didn't hold that -- that -- that you don't need an express indication of congressional intent to create a right against the municipality.

MR. FASMAN: The Ninth Circuit even went further by saying, based on its express language test, that the NLRA, and I quote again, "imposes obligations only upon an employer and a labor union."

QUESTION: It may be that you -- that -- that the NLRA created a right to be free from this kind of regulation, but it doesn't necessarily mean you have a right for damages -- to damages.

MR. FASMAN: I think under the standard accepted test that the courts applied in Section 1983 cases, we fall clearly within it.

QUESTION: I suppose you could say that Congress may have intended an injunction but didn't intend any right to damages, just because the city was doing what it shouldn't have done.

MR. FASMAN: Well, that -- that may be, but I think the -- I think our essential point is that that would be a very unusual result if we have rights, privileges or immunities, and I think under the Court's traditional standards we do, the proposition that we're entitled only to injunctive relief would be extraordinarily unusual because Congress created a broad damage remedy that allows citizens deprived of rights, privileges and -- and immunities guaranteed under federal law to sue for damages in the federal courts, and that's precisely our claim in this case.

QUESTION: Of course, there's no express preemption in -- in NLRA.

MR. FASMAN: No.

QUESTION: This is a -- this is a court interpretation of what Congress intended.

MR. FASMAN: That's -- that's -- that's absolutely right.

QUESTION: And you could say, I suppose, that this, all they really intended to do was to protect federal power, and injunction is enough.

MR. FASMAN: Well, Justice White --

QUESTION: If you want to -- if we've -- if we've fashioned this preemption notion when it's -- when it -- even though a statute is silent, I suppose we still have an unresolved question of whether -- whether damages are -- are permissible.

MR. FASMAN: Well, Justice White, it seems -- it seems to me that the premise of your -- of your argument is that there is no statutory basis for the Machinists doctrine, and that's just not right. I mean, there's ample statutory basis for Machinists. There's ample legislative history supporting it.

QUESTION: You mean that's just for preemption?

MR. FASMAN: Yes, for preemption.

QUESTION: All right, that's fine. But that isn't my point.

My point is, although the statute is -- although the city's action is preempted, are they liable for damages?

MR. FASMAN: Well --

QUESTION: In addition to an injunction.

MR. FASMAN: And the answer to that is it depends on whether what they have done contravenes rights, privileges or immunities granted to us.

My point is and our point here --

QUESTION: Well, not necessarily. You recognize a right by granting an injunction.

MR. FASMAN: Well, but the point is that if we have a right, privilege or immunity that's enforceable otherwise under Section 1983, we're entitled to damages for the infringement of that right.

My point is not that it's just preemption but that we were granted rights, privileges or immunities; that we were granted the right to bargain free from government sanction; that we were granted -- labor is granted the right to strike, we were granted the right to outlast a strike, to use economic weapons against one another.

QUESTION: Well, if you're right, Mr. Fasman, then although you said earlier in your argument that violation of the Supremacy Clause is not enough to recover damages under Section 1983, can you think of any case that would not give you -- where there was preemption that would not give you damages, any case where the Supremacy Clause was violated?

MR. FASMAN: I think there -- there are many. I think there are many cases where -- where you can't justifiably say that the basis of preemption is congressional or constitutional protection of specific private conduct.

QUESTION: What -- what would be an example?

MR. FASMAN: Well, for example, a -- a broad regulatory scheme, a scheme -- and you'll pardon me if I don't -- if -- if I don't get the -- the precise area correctly, but if Congress, for example, says we're preempting the area of nuclear -- transportation of nuclear waste and says -- says not -- not in an effort to grant rights and not in an effort to say a specific party shall have the specific right to do X, Y or Z but just says this is an area of federal concern and the state takes an action in there, in that area, that is preempted, that doesn't necessarily sound in damages because there's no right --

QUESTION: Who would sue? Who would sue? How would you ever get the preemption? If -- if it's not a right on the part of anybody, who would pronounce the preemption?

MR. FASMAN: Well, I presume that someone -- someone who is --

QUESTION: Someone like us.

MR. FASMAN: Someone who is --

(Laughter.)

MR. FASMAN: Someone who is --

QUESTION: Let me test that. May I ask you a question about that?

MR. FASMAN: Sure.

QUESTION: Supposing they did preempt the delivery of nuclear waste, and a state passed a law saying you can't drive through on -- on state highways. The -- that law would not be enforceable, and the nuclear waste disposal company would have a federal right to enjoin enforcement of that statute. It would have federal right. They couldn't get damages against the state because of this Eleventh Amendment.

But supposing a city for -- forbid them from driving through the suburbs or something like that and that was preempted. Why wouldn't they have a federal -- if there's a federal right to drive through the suburbs, why wouldn't they have a -- a damage action against the municipality for interfering with their free movement in interstate commerce?

MR. FASMAN: Well, they might, and they might depending upon the nature of why Congress --

QUESTION: It seems to me under your theory they always would, and why wouldn't they? If there's a federal right based on preemption not to have the state interfere, it seems to me, under your analysis, the plain language of 1983 would give them a -- a damage remedy.

MR. FASMAN: I think the real question in that case is whether the law was passed for the especial benefit of the people who would transport --

QUESTION: For the special benefit of people who are in the business of hauling nuclear waste around, special benefit of -- of them as -- just have them regulated by federal authorities so that they wouldn't be overregulated but yet they'd be -- there'd be protection.

MR. FASMAN: Well, if it's -- if that's a clear reading of the legislative history of the statute, for example, if -- if there were history in the statute that says that the reason that Congress federalized the field was to protect the right to haul nuclear waste across city lines, sure. I think that then you meet the especial benefit test, and you have a mandatory obligation. You meet the normal Section 1983 test.

QUESTION: Well, what -- what if the legislative history simply said that we're preempting this area because we don't want a lot of conflicting state and local regulations?

MR. FASMAN: That was the point that I was trying to make. It may not be that the preemption or the basis for preemption is designed to protect any specific private conduct --

QUESTION: Well --

MR. FASMAN: -- and if it isn't --

QUESTION: So what happens when -- when the hypothetical truck driver in Justice Stevens' example drives through the suburbs in violation of the, you know, the ordinance of Orange County?

MR. FASMAN: I think what you're entitled to is -- is an injunction, but you don't fall under the terms of Section 1983.

QUESTION: Why not?

MR. FASMAN: Because the -- the law was not passed for your especial benefit. You don't fall within --

QUESTION: Well, there's nothing in 1983 about laws being passed for the special benefit of anybody.

MR. FASMAN: Well, that's the test that -- that's one of the tests that the Court traditionally has used to determine whether there is an enforceable right, privilege or immunity.

QUESTION: But that's in private cause of action cases, not under --

MR. FASMAN: No, I think in this -- in this as well. I think the Court has applied that especial benefit test under Section 1983 as well.

QUESTION: I thought it was the test we applied to determine whether you could get an injunction also. I didn't think that -- that anybody in the world can sue to -- to enforce federal -- federal laws. Somebody who is not proximately injured, who is not a person who is thought to be within -- within the scope of -- of -- of the -- of the benefit conferred by that law, can anybody -- can sue to get an injunction?

MR. FASMAN: Well, you're raising -- it seems to me that you're raising a standing question as opposed to -- as opposed to this issue. And it is true. I mean, the -- the notion of cause of action and standing really do get close to one another, and it may -- it might --

QUESTION: I don't see why I would have a -- a cause of action for an injunction and not have a cause of action for damages in -- in -- in any case.

MR. FASMAN: In any case. I think it would be a --

QUESTION: The situations you've posited don't seem realistically to -- to be that to me. If the law is -- is a law under whose wings you -- you come, you're entitled to an injunction, but you also have a right and, therefore, entitled to damages.

MR. FASMAN: I'm comfortable with that result, of course.

(Laughter)

QUESTION: Well, but then you have to retreat something from your earlier statement that it's not every preemption case that is going to give you damages under Section 1983.

MR. FASMAN: Well, I think I've tried as best I can to -- to show how preemption cases under these -- under this especial benefit test that the Court has used, where the proper -- the proper inquiry is to look and see if a party is an especial beneficiary of the particular law.

QUESTION: When you're talking about the special benefit test, is that the Cort v. Ash test for a private cause of action?

MR. FASMAN: It's the first prong of Cort v. Ash, and this Court has held that the first prong is useful in determining whether a right enforceable under Section 1983 arises here. It's not the full Cort test.

QUESTION: In the -- in the City of Roanoke case?

MR. FASMAN: Yes. Right. Right.

I think the -- the underlying point that we would like to -- we'd like to leave with the Court is that the Ninth Circuit's test, this explicit prohibition test, leads us to completely illogical results. It's illogical to conclude, as did the Ninth Circuit, that Congress intended to protect employers and unions from the city's conduct yet simultaneously intended to deprive them of remedies normally available in the federal courts.

It's similarly ill -- illogical to conclude that the obligations Congress imposed upon the city are -- are entitled to less than complete enforcement, merely because this Court relief on the legislative history before rendering its decision.

Our injuries are no less real and no less contrary to the will of Congress because this case involves legislative history.

With the Court's permission, I'd like to reserve the remainder of my time for rebuttal.

QUESTION: Thank you, Mr. Fasman.

Mr. Haggerty.

ORAL ARGUMENT OF JOHN F. HAGGERTY ON BEHALF OF THE RESPONDENT

MR. HAGGERTY: Honorable Chief Justice and may it please the Court:

As the -- in -- in response to Justice Scalia's concern or question, there was, as counsel indicated, a declaratory relief action pled in this case, and under the declaratory relief, the Plaintiff could get injunctive relief.

But the question is is the Plaintiff in this case entitled to damages under 1983.

QUESTION: But he -- but do you say he is entitled to an injunction under 1983?

MR. HAGGERTY: No, I'm not. I'm saying he's pled a separate cause of actions under the declaratory relief act, and under that act, the court granted an injunction.

But just because he received an injunction under declaratory relief does not mean that the plaintiff's entitled to damages under 1983, because the court -- when the court engages in a preemption analyses, it's a different analyses than the court engages in when it engages in a 1983 analyses.

QUESTION: How -- how could we give an injunction unless the individual has a right? And 1983 requires the deprivation of a right guaranteed by -- by federal law; correct?

Could we possibly give an injunction or even a declaratory order in any case unless the individual in question had a right?

MR. HAGGERTY: Well, in order to enforce the holding of this Court in Golden State One, yes, because I -- the -- the type of analyses the court goes into in determining whether or not there is preemption is a different kind of analyses that the court has engaged in in the 1983 action.

QUESTION: Now, let's not talk about preemption. Let's just talk about right.

Doesn't -- doesn't 1983 refer to deprivation of rights secured by statutes or laws of the United States?

MR. HAGGERTY: That is correct.

QUESTION: Rights.

Now, is it conceivable that I can get an injunction with respect to a matter as to which I have no right? Or that I could get a declaratory judgment when I do not have a right?

MR. HAGGERTY: Well, the court in a -- preemption analyses, as this Court did, did find that there was a right based on a preemption analyses.

What I'm saying is just because a court may find there is a right based on a preemption analyses does not meet the test that this Court has laid out as to when a person has a right within the meaning of Section 1983. The kind of analyses a court engages in, for example, in Wright v. Roanoke, is a different kind of analyses than this Court has engaged in in labor preemption cases.

In fact, this Court has stated that it is not clear from the NLRA what rights or what powers have been taken from the states and what powers have been given to the states. In fact, the Court even indicates that engaging in such a preemption analyses, it goes through what the Court refers to as a delphic process.

In other words, the court may take obscure and ambiguous language and imply from that a right or -- the local entity has been preempted, whereas in a 1983 cause of action, this Court has laid out very specific rules, as they did in Wright v. Roanoke Redevelopment Authority.

QUESTION: How did the plaintiff in Golden State One get into the federal court? What was the jurisdictional basis?

MR. HAGGERTY: Well, there was a whole series of cause of action. There was violations of the Fourteenth --

QUESTION: I'm not -- I'm asking about jurisdiction.

MR. HAGGERTY: Oh, they were claiming under 1331 that there was a --

QUESTION: All right, and what's the basis for the cause of action? You need something -- some authority for a cause of action, too, don't you?

MR. HAGGERTY: Yes. They were -- they were claiming a violation of the Fourteenth Amendment, due process, equal protection rights. They were claiming cause of action in 1983. They were seeking declaratory relief. They were seeking injunctive relief.

QUESTION: Well, do you think you could have -- do you think you could have gotten -- they could have gotten into the federal court without pleading 1983?

MR. HAGGERTY: Well, yes, because -- well, they also had pled violations of the Fourteenth Amendment.

QUESTION: Why would that get them in -- into federal court?

MR. HAGGERTY: The Federal Court of Appeals ruled that they had no cause of action under 14 -- the Fourteenth Amendment or under the anti -- they also pled antitrust violations.

There has been four court of appeals decisions in this case, and all the issues have been resolved, except the question of 1983.

The city would submit that the appropriate legal test in this case to determine whether or not this specific law -- namely, the National Labor Relations Act -- granted the Plaintiff rights within the meaning of 1983 is whether or not Congress intended that a statute secures rights within the meaning of 1983 -- is whether Congress has employed in the law sufficiently specific and definite statutory language in order to create rights, at the same time give notice to the relevant governmental unit of its obligations in relation to such rights.

The key is what is the legislative intent; and I submit the test, the proposed test that I have just stated, is supported by this Court's prior decisions.

And I will admit this language came from the district court of appeals decision in Edwards v. District of Columbia, because the court said in laying -- or stating that language which I have just given to the Court, that language was based on that court's reading together the Wright case and the Pennhurst case.

And in Wright, this Court filed that the Brooke Amendment to the Housing Act relating to rent limitations could not be clearer as to the maximum rent which could be charged tenants. This, the Court said, was a mandatory limitation focusing on the family and its members. The Court concluded that the benefits Congress intended to confer on tenants were sufficiently specific and definite to qualify as enforceable rights under Pennhurst in Section 1983.

And in Pennhurst, the Court said in order to create 1983 rights, Congress should be expected to speak with a clear voice.

Now, Pennhurst and Wright and Edwards were all grant-in-aid cases, admittedly, but still the crucial factor, as even Plaintiff admits, is what is the intent of the legislature. Did the legislature intend to create rights within the meaning of 1983?

QUESTION: Do you think in any of those cases, if the Court had not found 1983 rights it could, nevertheless, have -- have found the ability to gain an injunction on the part of the individual against the -- against the grant agencies?

MR. HAGGERTY: Well, there was no --

QUESTION: Do you know any case where we've drawn that distinction, where we say you have a right? That is to say, the government can't behave in this way towards you. You have personally a right to come into court and to sue and get an injunction, but you don't have a right to get damages under 1983.

Do you know any -- any case that would support that proposition: right to an injunction but no right to damages?

MR. HAGGERTY: I know -- I know of no case in this Court, no.

QUESTION: That may be what this case is all about.

MR. HAGGERTY: That's correct.

But the reason I believe that the language in the statute should be clear and unambiguous, as Pennhurst indicates, in order to find a legislative intent to create rights within the meaning of 1983, because, to digress a moment, in a preemption case this Court is trying to further some kind of national policy or promote some type of national goal. That is not the issue in a 1983 case.

The issue in a 1983 case focuses on whether or not Congress intended to grant rights to the specific individual who is asserting it. And it's certainly to be presumed, if Congress intends to create substantive rights to -- of others engage in such action or forbearance of those rights demand, that Congress will use in the particular statute such unambiguous language so as to command such action or forbearance.

In other words, to put such persons on notice as what is expected from them, because, after all, the reason that Congress creates rights is to have others honor those rights.

Now, looking at the statutory language of 8(d) as amended in the -- the NLRA and its legislative history, it indicate that that was not Congress' intent.

What does 8(d) say as amended? All 8(d) says is that the obligation to bargain in good faith does not compel a party to reach an agreement. All that language expressly provides that the failure to reach an agreement in a bargaining environment does not subject that person to a charge of an unfair labor practice.

The section is very clear. The only benefit is -- it provides is what I have just stated. Unlike --

QUESTION: So, Golden State One was wrong. I mean, that's a very good argument for -- for the proposition that Golden State One was decided incorrectly.

MR. HAGGERTY: No. Again, as I said, Golden State One was a preemption case, and in -- in a preemption case the court is focusing on what needs to be done to further a national policy. In a 1983 case, the court is focusing on whether or not Congress intended to create individual rights in the particular plaintiff who is asserting it.

QUESTION: We didn't find in Golden State -- in Golden State One that the employer had a right against the state not to be impeded in the way the state impeded it?

MR. HAGGERTY: Yes, the Court did find --

QUESTION: We did find -- a right.

MR. HAGGERTY: Yes, but I would say that is a right in a preemption -- preemptive sense. Just because the word "right" is used, it has to be looked at in the context in which it is used, just like in the Pennhurst case.

In Pennhurst, Congress had set out what they called a bill of rights for the -- the disabled; but despite of that this Court did not find that the plaintiff in Pennhurst had a right within the meaning of 1983.

Now, as far as the legislative history of the National Labor Relations Act, counsel makes reference to the fact that the Act talks in terms of the rights of the employer and employee. But what the Act says in 29 U.S.C. 141, it talks about the legitimate rights of these parties in their relations with each other, and the purpose is, according to 141 of the National Labor Relations Act, is to avoid industrial strike.

You look at the declared purpose of the National Labor Relations Act, and all it speaks of is the obligations to the parties in reference to each other.

And as far as 8(d) itself is concerned, that amendment -- or, rather, it was amended in 1947 to provide what is a relevant language in this case, namely, the refusal to make a concession does not come within -- is -- is not a requirement in order to bargain in good faith.

And as far as that specific language is concerned, the congressional Service, discussing the House bill and the Senate bill as to that language, said that the reason for that language was that the board was requiring employers to make concessions to show that they were bargaining in good faith. That language had a very specific purpose, because the legislature felt that the National Labor Relations Board was, in effect, going too far in putting pressure on an employer in its bargaining with the union.

And, in fact, this Court in Porter Company v. National Labor Relations Board, in talking about that specific language, pointed out the reason for it is that unless Congress writes into the law guides for the board to follow, the board may attempt to carry this process still further and seek to control more and more of the terms of collecting bargaining agreements.

I submit the reason for that language was not meant to give an employer, as in this case, rights against a third party, but it was meant to, in effect, control what the legislature saw as an abuse of power by the board.

In looking at --

QUESTION: He does have rights against a third party to get an injunction?

MR. HAGGERTY: Again, based on the preemption analyses, that is correct.

QUESTION: Based on any analysis, what you just said is not true, insofar as an injunction is concerned. He does acquire under the statute a right to get an injunction.

It's clear enough that we'll give him an injunction, but it's not clear enough that we'll give him damages. Is -- is -- is that the argument you're making?

MR. HAGGERTY: Well, what --

QUESTION: Before we'll give him damages, it has to be really clear, but if it's just sort of clear we'll only give him an injunction. Is -- is that the sort of line you're asking us to draw in 1983?

MR. HAGGERTY: Well, what I'm saying is that in order to secure rights within 1983, there should be some -- again, the Court has always indicated it's a question of legislative intent. Did the legislature intend to confer rights on this particular party --

QUESTION: Rights, not did he -- did it intend to confer 1983 rights. 1983 operates by itself. It's a statute out there which says if you have a right, you get damages.

Surely you're not arguing that each time Congress enacts a statute, it must affirmatively say, moreover, the rights under this statute can be sued on under 1983. That's that your position.

MR. HAGGERTY: No, that's not my position.

What my position is that the language of the statute in some way has to, as in Wright v. City of Roanoke, has to compel the particular defendant of what they have to do. Now --

QUESTION: But we found that, didn't we, that it does compel the city here to refrain from doing what it did?

MR. HAGGERTY: But again, it was not the express language of the statute as a right. The court implied from the National Labor Relations Act --

QUESTION: Right.

MR. HAGGERTY: -- that the city had such an obligation.

QUESTION: So it was not clear enough. It was sort of clear, clear enough to get an injunction but not really clear so you can get the damages action, is what you're saying?

MR. HAGGERTY: That is what I'm saying because I think there's a distinction in the type of analyses and the purpose of preemption, as opposed to a 1983 cause of action.

QUESTION: Would the case be any different if ten years ago Congress had taken a look at our Machinists preemption case and that line of cases and passed a statute saying we agree -- we affirm the holding of the Supreme Court in -- in the Machinists preemption case? Would that change the -- the case?

MR. HAGGERTY: Well, you mean if the Congress expressly stated that --

QUESTION: Expressly stated we think that the -- that the free play of economic forces is protected by the statute as interpreted in Machinists, and we hereby ratify and endorse the rule of Machinists. Would that --

MR. HAGGERTY: No, it would not, I -- I don't believe, because, again, in the Machinists case and as far as the National Labor Relations Act is concerned, its purpose is to promote industrial peace and define the relationship of the parties, labor, management and the board, in reference to each other.

It has -- there is nothing at the -- in the Act --

QUESTION: But also and to prevent third-party interference with the bargaining process.

MR. HAGGERTY: Well, the Act doesn't say that. That is the way the court has interpreted --

QUESTION: In Machinists. Then I'm saying what if the Act went ahead and said that. Would it be any different? If the --

MR. HAGGERTY: Well --

QUESTION: If the Act had specifically said everything we put in the Machinists opinion, if that had all been written out in advance instead of -- would that make any difference?

MR. HAGGERTY: Well, again, I -- it's a question whether or not they would say -- well, I would tend to say yes, that -- that probably would be the situation if -- provided -- if -- if there was expressly stated and created some kind of obligation on the part of -- of the city -- if the statute said that, if the law said that.

QUESTION: See, but -- but -- but when the court interprets a hole in a statute like that, it's in effect saying, well, this is what Congress really didn't meant and they just didn't articulate it clearly enough.

MR. HAGGERTY: No, but again, I -- in making it -- and I don't wish to repeat myself but I guess I'm sorry if I do, that I believe in a preemption analyses. The court again is trying to further, as I said, some type of national policy, in this case a promotion of industrial peace, and that's the bases for its preemption -- its conclusions in reference to preemption.

It's based on the Supremacy Clause, namely, to give priority to federal bulls.

QUESTION: You're saying, I guess, that a law that -- a federal statute that preempts state law does not give any individual the right not to have state laws enacted?

The -- the preemption, the federaL preemption does not create rights in anybody. It just somehow or other erases state law. That seems to be your position.

MR. HAGGERTY: Well, or to prevent the state law from being --

QUESTION: Enforced or --

MR. HAGGERTY: Enforced. Well, it could be express preemption -- expression -- express preemption, where there could be explicit language in the statute --

QUESTION: Well, would it be --

MR. HAGGERTY: -- which compels certain actions on the part of a governmental agency.

QUESTION: But would it be different if there were a federal statute that said no state legislature or municipality shall enact any legislation that interferes with the bargaining process?

If it said -- and it's a little broad but if that's what they'd said, would that -- would that then give the -- the cab company a right in this case?

MR. HAGGERTY: I think if there -- if it's expressed in the statute, that's correct because, as 1983 says, we're talking about --

QUESTION: But then your distinction is not between preemption and other kind of laws. It's between expressly enacted statutes by Congress and judicially interpreted statutes. That's your distinction, I guess.

MR. HAGGERTY: Well, my distinction is whether or not the statute, looking at the express language or in the legislative intent, does create such a right in an individual.

And what I'm saying here is that both the legislative intent of -- in 1947 when they enacted this amendment and the express language does not indicate any such right in the plaintiff. It has no language which in any way mandates or compels the city to do anything.

In fact, drawing an analogy from the implied right of action cases, which the court has referred to in analyzing 1983 actions and in the Cannon case, the -- the court has used the first test, whether or not Congress intends to create a right in this particular plaintiff.

And in the Cannon case, it points out that in talking in terms of an implied right of action case the question is whether or not the person to be charged disregarded a command of the statute.

And when the first test talks about whether or not the -- the first prong of the test of the implied right of action cases talks about whether or not the plaintiff is an especial beneficiary of that statute, I believe you have to look at that in terms or relationship to what the statute provides.

And in this case the statute, by its language, does not provide any benefit as to an employer against a third-party such as the city. It only creates a benefit as against the National Labor Relations Board by preventing them from bringing a unfair labor practice charge.

Now, I believe there is also good policy for the test the city is laying out. As fact, as the Plaintiff himself admits, that labor law is a very complex area which the lower courts often misunderstand. And if there's this apparent uncertainty as to when government actions may be preempted by the National Labor Relations Act, then there's a problem that local entities, not knowing when they may be liable under 1983, may refrain from engaging in what otherwise may be important and significant regulatory types of actions.

Now one other point I would like to make --

QUESTION: Mr. Haggerty --

MR. HAGGERTY: Yes.

QUESTION: -- before you leave that, would you tell me again what is the that you propose? And I know -- I know I'm probably asking you to repeat yourself, but I want to be sure I understand.

MR. HAGGERTY: Yes. The test is -- the test, the city submits, is for determining whether or not Congress intends that a statute secure rights within the meaning of Section 1983 is whether Congress has employed in the law sufficiently specific and definite statutory language in order to create rights and at the same time give notice to the relevant governmental unit of its obligations in relation to such rights.

And as I said, that language does come from a district court of appeals decision, Edwards v. District of Columbia, and the court said that they utilized that language by their reading together the Wright case and the Pennhurst case, because in Wright the Court -- this Court specifically said in finding that there were 1983 rights that the Congress -- that the -- the Congress intended these benefits -- the benefits which Congress intended to confer on the tenants were sufficiently specific and definite to qualify as enforceable rights under Pennhurst and Section 1983.

QUESTION: Mr. Haggerty, that -- that -- that has some -- some intuitive appeal, that test, when one thinks of the poor municipality that doesn't know that it's violating the federal law and -- and, therefore, you shouldn't give it -- subject it to damages unless it's clearly enough stated.

As I say, that has an intuitive appeal up until the point where there is a court decision that says, yes, cities cannot do this; employers do have a right even against the city to continuing negotiating, and the city cannot -- impair that. At that point, your argument does not have any intuitive appeal.

Why isn't it enough if -- if -- if -- why isn't it enough to say either the statute is clear on its face or there has been a Supreme Court decision that says that the employer clearly has that right? Surely, at that point the city knew that it -- that it shouldn't be able to do this thing.

MR. HAGGERTY: Well, the city knew at that point, but, of course, at that point they had already had done --

QUESTION: Yeah, but -- but what you're arguing now applies to all cities in the future.

MR. HAGGERTY: That's correct.

QUESTION: You're saying no city in the future will ever have a cause of action under 1983 for violating what we said the law is in -- in -- in Golden State One.

MR. HAGGERTY: Yes, because that --

QUESTION: Why does that make any sense?

MR. HAGGERTY: Because, again, it's a question of whether or not the city has violated or acted in disregard of the law, and the law in this case does not command the city in any way to do what the Plaintiff is asserting it should do so as to get 1983 damages.

And the reason that I'm saying -- saying that the city should have notice, it's not because they can claim, well, they didn't -- some kind of good-faith defense, which the Court, of course, has already rejected.

The question is if you're looking at legislative intent, does the legislature intend to create these enforceable rights in a plaintiff? It's fair to say that the Congress can speak in a very clear way to so indicate to the defendant or to the governmental entity what they are expected to do.

One other point I would like to make that if -- it was pointed out in the brief of the amicus that the question in this case does -- does not really address the issue that is really involved here.

As I said, the issue in this case is whether or not the law -- namely, the National Labor Relations Act -- created the -- the kind of rights that plaintiff is asserting. And the issue in this case only relates to that particular law, this particular statute.

It's not a question, as the question presented by the Court, is whether or not the state action was preempted or not. The question is whether or not this law creates that kind of rights.

And it's fair to say that, if the question is presented in that way that the NLRB may have come into the case as an amicus to give their expertise as to whether or not this particular statute does create such rights.

In fact, this Court in Owens v. City of Independence said in determining whether or not a 1983 action lies will look to see whether or not the municipality has conformed to the requirements of the federal Constitution and statutes. And in this case there is -- the way, again, the way the statute is worded, the city did not in any way disregard any command of Section 8(d).

That's all I have. Thank you.

QUESTION: Thank you, Mr. Haggerty.

Mr. Fasman, do you have rebuttal? You have four minutes remaining.

REBUTTAL ARGUMENT OF ZACHARY D. FASMAN ON BEHALF OF THE PETITIONER

MR. FASMAN: Just one or two points, Mr. Chief Justice.

The legislative intent underlying the National Labor Relations Act was fully revealed in Golden State and before it in Machinists, and I think it's important for the Court to bear in mind the broad context of the federal labor laws in which this case arises.

This Court repeatedly has recognized that free collective bargaining is the cornerstone of the federal labor scheme. Bargaining can't be free and unfettered as intended by Congress if management or labor can be punished for their stance at the bargaining table.

QUESTION: Mr. Fasman, isn't this case almost unique in NLRA preemption cases that have been decided by this Court in that a municipal corporation or some governmental body was a defendant, as opposed to employer versus an employee?

MR. FASMAN: Well, the employer versus employee -- branch of the preemption document deals with the -- deals with a different issue.

QUESTION: But even Machinists preemption, those cases prior to this one have almost always involved employee versus employer, haven't they?

MR. FASMAN: That's exactly right. And that's why --

QUESTION: So -- so isn't my statement correct?

MR. FASMAN: It is generally correct. But that's why this case is so clearly antithetical to the intent of Congress.

The National Labor Relations Act was passed, we federalized the law of labor relations to ensure that just this wouldn't happen. The first third of the century, this is what cities did. They put -- they put -- usually against labor, but they put people in jail. They applied the antitrust laws. They prevented union organizing. They prevented strikes.

I mean, this is the classic -- this, if anything, this is more of a Machinists case than Machinists, and that's my fundamental point. Bargaining can't go on if you can be put out of business because of your stance at -- stance at the table.

QUESTION: Could you have maintained your action under -- in -- in Golden State One without resorting to 1983? Could you have just --

MR. FASMAN: Certainly.

QUESTION: -- just pled the National Labor Relations Act?

MR. FASMAN: We could have pled just a violation of the Supremacy Clause in a federal question. I think we could have.

QUESTION: And -- and -- and would have had a cause of action under the Supremacy Clause or a -- a cause of action under the labor law, or both?

MR. FASMAN: There's a question as to whether you have an implied right of action under the -- under the labor laws or under the Supremacy Clause as such.

QUESTION: And -- and if you hadn't have used 1983, would you have gone through the Cort v. Ash --

MR. FASMAN: In an implied right of action?

QUESTION: Yes.

MR. FASMAN: I presume we would have, yes. But the point is that we did plead it under Section 1983, and so I think that gets us right to --

QUESTION: Do you think that if, even though you might not have had a cause of action under Cort or whatever the formula is for implied causes of action, you nevertheless would have it under 1983?

MR. FASMAN: I think we have one under Cort as well. I don't -- I don't agree with that characterization, but I think we're well past -- we're well past that. There's no question that we have -- that we have a -- a cause of action, jurisdiction, standing.

We've got a remediable wrong and an admission that injunctive relief is appropriate here. We've left Cort v. Ash a long -- a long -- a long way back, it seems to me.

The message that's -- that's imposed by the Ninth Circuit decision, it seems to me, is completely inconsistent with Machinists, with Golden State, with free and unfettered bargaining and inconsistent with this Court's repeated efforts to protect the bargaining process and the parties to that process from government coercion.

The problem with the decision below is not just that it ignores congressional intent but that it stands congressional intent on its head, and that decision should not be allowed to stand.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Fasman. The case is submitted.

(Whereupon, at 10:56 a.m., the case in the above-entitled matter was submitted.)