Haywood v. Drown - Oral Argument

ORAL ARGUMENT OF JASON E. MURTAGH ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We will hear argument next in Case 07-10374, Haywood v. Drown.

Mr. Murtagh.

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

In a 4-3 decision, the New York Court of Appeals affirmed Correction Law Section 24, which prohibits Petitioner from bringing a Section 1983 claim for money damages in any court of the State of New York.

Instead, that statute relegates Mr. Haywood and anyone else seeking money damages under section 1983 to either bring their case in Federal court or to accept what the New York legislature has deemed a State law alternative. That State law alternative does not allow Mr. Haywood to sue the prison guards who violated his civil rights; instead he can only sue the State. It provides for no punitive damages, it provides for no attorneys' fees; a shortened 90-day notice of claim provision, 30 days shorter than what this Court found violative in Felder; and provides for no right to jury trial.

Justice Kennedy: It does provide for a waiver of sovereign immunity and says that the State will respond in damages. It might be -- I'm not sure -- that many prisoners would prefer this. They have got a solvent -- I hope they're solvent -- defendant.

(Laughter.)

Mr. Murtagh: Your Honor, it is true that the State has waived sovereign immunity for claims brought in the Court of Claims under that State law.

But, Your Honor, they haven't waived sovereign immunity for punitive damages or for attorneys' fees, both of which are remedies that are specifically available to Petitioners, to plaintiffs, in section 1983 actions.

This State law alternative, even if it didn't independently violate the supremacy clause by substituting New York's judgment for that of Congress, would not actually be a real alternative for Mr. Haywood or for anyone else who wanted to bring a suit against prison officials.

Justice Kennedy: Well, we can just mark that place in the record. It -- it does seem to me that there is some real benefits to the prisoners under -- under the New York scheme. It's -- many counsel may think it's preferable than to sue under 1983.

Mr. Murtagh: Your Honor -- Your Honor, there may be -- reasonable minds I think could differ, I think, about whether it's preferable to have the State as a solvent entity or the -- or the prison employee as a defendant. But I think there's two important points on that.

Number one, in their briefing, the Respondents have argued that they will indemnify State employees regardless of where the case is brought. If the State has already agreed to provide indemnification, then you don't need the State as a defendant simply to be solvent. The State has already --

Chief Justice Roberts: Well, except in -- they said except in cases where the guards are acting outside the scope of their employment.

Mr. Murtagh: Yes, Your Honor. Under Correction Law Section 24, if the guard is acting outside the scope of the employment, then the case can be brought in New York's courts of general jurisdiction.

The important point here, Your Honors, is there are two separate related reasons that this law is unconstitutional. The first is because New York's legislature has redefined the remedies available under section 1983, they have, in effect, substituted their judgment about what constitutes good policy for Congress's judgment.

In this particular case, Mr. Haywood or any other plaintiff in New York State, could bring a section 1983 claim in State court, but only if he agrees to give up his right to seek money damages.

Congress determined, in setting forth the purpose and the effect of section 1983, that plaintiffs ought to be entitled to both money damages and equitable damages.

Justice Scalia: He can still get that in Federal court, can't he?

Mr. Murtagh: Your Honor, it's -- Justice Scalia it's absolutely true that Mr. Haywood could bring his case in Federal court and would be entitled to all the remedies available under section 1983 had he brought it in Federal court. But that issue is not dispositive in this case. And the reason it's not dispositive is that in the whole line of cases that this Court has considered where it has required States to hear actions as long as they hear similar or analogous actions, a Federal forum was available in each of those cases as well.

Chief Justice Roberts: I guess there's a difference. I mean, obviously Felder is significant help to you. But I suppose it's a difference to say they've redefined the cause of action under Federal law and said they are just not going to hear it at all. It may seem paradoxical, but the latter may be from a constitutional point of view the sounder characterization, because it's obviously not the responsibility or the authority of States to say, well, this is how the Federal law is going to be applied.

But it might be their -- their -- within their authority to say, look, this is what our State court system provides and if you don't like it for a Federal claim, you have always got the Federal courts.

Mr. Murtagh: Your Honor, under this Court's decisions not only in Felder but going back to Martinez, this Court has said that -- that it hasn't decided whether a State is required to create a court to hear Federal claims. And I don't think the Court needs to reach that issue in this case, because New York has already established courts of general jurisdiction, its supreme court, the trial level court, that are competent to hear these cases.

These courts regularly hear common law tort cases, they regularly hear section 1983 --

Chief Justice Roberts: Yeah, but `they are not really or at least you can view it as they are not discriminating against the Federal cause of action, because they don't allow the State cause of action of the sort you want to pursue either.

Mr. Murtagh: Your Honor, that seems to be the crux of the Respondents' argument. And I think the fundamental problem with that argument is that, although New York specifically exempts prison -- cases against prison officials, that's not enough. And the reason it's not enough is that if you can merely invoke the word "jurisdiction," as this Court pointed out in Howlett, the mere -- the force of the Supremacy Clause is not so weak that it can be evaded by the mere mention of the word "jurisdiction."

Chief Justice Roberts: Well, that's -- that's true. And Howlett does say that. But as we've pointed out on many occasions, "jurisdiction" is a term that covers a lot of different things. And at some point something starts to look jurisdictional, which is, look, we're not going to hear your case at all. In other areas, even if they call it jurisdictional, it really doesn't seem that way, such as, well, you've got to give this much notice or you've got to -- you know, maybe those things aren't really jurisdictional. But saying you can't bring the case at all strikes me as really jurisdictional.

Mr. Murtagh: Well, Mr. Chief Justice, I think there are a couple of points on that. The first is that in the cases where this Court has found that there was a neutral jurisdictional rule, Herb v. Pitcairn, Douglas, Mayfield, and then later in Johnson v. Frankell, in every single one of those cases the underlying rule of jurisdiction did not speak to the identity of the parties and did not address the underlying substance of the claim. Those were rules that simply talked about how a case could move through the courts.

For example, in Douglas neither party was a resident of the State of New York and the New York court said: If you're not residents, you can't come in and use our courts.

Justice Ginsburg: That's not how it moves through the courts. That is, you don't have a forum.

That sounds to me like a jurisdictional ruling. Those cases that say, our courts don't sit to hear cases where the parties are nonresidents, both sides; our courts don't sit to hear cases about accidents that happened in Timbuktu, those sound like, we don't offer a forum for that type of case, as distinguished from here, where New York does have a forum, it just won't kind of give one kind of relief.

Mr. Murtagh: Justice Ginsburg, I think -- I think that that is exactly right. The point here is that in -- in -- in Douglas, where the court did not -- where the New York courts did not allow any party -- where both parties were nonresidents of New York they wouldn't hear the case, that applied regardless of the identity of the employee. It didn't matter whether the defendant was an employee of the State of New York or not.

And it also applied regardless of what the underlying substantive claim was. It didn't matter whether it was a tort action or a contract action or anything else. If you weren't in New York, if you weren't a resident of New York, you couldn't take advantage of its -- of its courts.

And in -- in Herb v. Pitcairn, where you had the situation where there was a -- there was a railroad accident brought in one county court in Illinois, it should have been brought in a different county court, the Court went -- went out of its way to say the State of Illinois has provided other forums, other State courts where you could have brought this case.

And if the State, for example, in the present case had said, Mr. Haywood, you filed this case in Wyoming County Supreme Court and it really should have been brought down in Syracuse, that would be a neutral rule of jurisdiction. It just dictates where the case ought to be brought.

By contrast, what New York has done here is that they have absolutely forbidden anyone to seek money damages against a prison official. And the reason that they did that, as conceded in the Respondents' briefing, is because they don't want prison officials to be distracted from their duties. They don't want prison officials to have to face the fear of vexatious lawsuits.

Justice Kennedy: Suppose the -- the New York legislature said, you have a choice, you can bring a 1983 suit or you can bring this sort of suit against the State, and the State will respond to damages, but you can't do both. Can they do that?

Mr. Murtagh: No, Your Honor, I don't think they could. Once the State -- this Court's jurisprudence teaches us that once a court -- once a State opens its courts to hear analogous State law claims, it cannot then close its doors selectively to Federal claims.

Justice Ginsburg: What Justice Kennedy has asked you: Say, you could have this Federal claim, but we are going to offer you a substitute under New York law, which the Federal authority could not force us to do, because it's a State waiving its sovereign immunity.

Mr. Murtagh: I'm sorry, Justice Ginsburg; certainly the State of New York could offer a State law alternative in addition to section 1983.

Justice Kennedy: No, no, I said in the alternative.

Mr. Murtagh: Okay. I don't believe, Justice Kennedy, that -- that New York could force a plaintiff to give up the right to sue section -- sue under section 1983 if the courts are otherwise open to tort actions in similar circumstances.

Justice Kennedy: All right. Now, suppose they do it -- they say -- we are just talking about the State courts: you can't bring both types in State courts. You can still have your Federal cause of action in the Federal court, and we will also give our cause of action where the State's law is violated, but not both in the New York courts.

Mr. Murtagh: No, Justice Kennedy. Once -- once New York establishes courts of general jurisdiction that are competent to hear these kinds of cases, it can't close its doors to section 1983 claims for money damages.

Justice Scalia: But it's okay for the State to say, we don't want any tort actions in our courts? That would be all right?

Mr. Murtagh: Yes, Justice Scalia. It seems --

Justice Scalia: That's strange. Why -- but it can't do the lesser thing of saying, we don't want this particular type of tort action. One is jurisdictional -- you would say it's jurisdictional, right? And this one is not jurisdictional, just because it's narrower? It's still directed to the type of action.

Mr. Murtagh: Justice Scalia, I think the distinction is -- relates to the relative power of Congress and the States. Once Congress has spoken and has provided a Federal cause of action, that becomes New York law. And New York, as long as it has a court, is required to enforce that.

Justice Scalia: But -- but not if New York said, we don't want any tort actions. What about if New York says, we don't want any -- uh -- personal injury tort actions? Would that be enough, or is that too narrow? And I'm going to narrow it down after that until I get down to your case.

(Laughter.)

Mr. Murtagh: Justice Scalia, I -- I am not sure exactly where the line is in terms of the analogy.

I think this case is very far on the other side. In other words, because New York State here -- even here, a section 1983 claim, this isn't a situation where they say, we have a court that's not competent to hear section 1983 claims. They simply say: We're not going to allow them to hear section 1983 claims for money damages where there is a prison official who's -- who is the defendant.

If the defendant here, Justice Scalia, were a police officer who had engaged in the same conduct, New York State courts would have to hear that case. So this is not the sort of thing --

Justice Scalia: I understand that. I just don't understand -- you acknowledge it's okay if it's jurisdictional; and you acknowledge that it is jurisdictional if you don't allow any tort actions. I just don't know what makes this to be non-jurisdictional. I don't know.

Mr. Murtagh: I think it -- intellectually, Justice Scalia, it seems to me that the distinction is that -- that there has to be a point at which you do respect the relative authority of the State and the Federal Governments. By saying that a State may -- we are not going to require that a State establish a court to hear a whole kind of action that they otherwise wouldn't hear, that's providing some deference to the authority of the State, as the Respondents point out, part of the core sovereignty of the State, to establish their courts and to run their courts.

By contrast, once they have done that, once they provided that court system, then the power balance shifts.

Chief Justice Roberts: So if this were at the beginning of whenever New York was establishing a court system, and they said from the outset, look, we are not going to hear these types of cases, then this would be okay?

Mr. Murtagh: Your Honor, I think under this Court's jurisprudence that would -- if the State of New York said we are not going to hear any kind of tort action, regardless of whether it's Federal or State, and it doesn't --

Chief Justice Roberts: No, no, that's mixing the two points. Your point I understand it --

Mr. Murtagh: Okay.

Chief Justice Roberts: -- is that once the court has opened it up to a particular type of claim, they can't say, say no more. So if they are setting up -- obviously we are not going to go back to whenever the New York State courts was established. But if they suddenly said, we are going to revise our court system or - or modernize it, and from now on we are not going to do this?

Mr. Murtagh: As long as -- as long as the withdrawal of jurisdiction was across all analogous State law claims as well as the Federal claim, then, yes. I mean, we could discuss whether that would be a good idea or not, but I think --

Justice Scalia: No, we would discuss what is analogous.

Mr. Murtagh: Yes, and that's -- that's a very good point, Justice Scalia; and this Court has told us as litigants what it thinks are analogous claims. In Felder, this Court said an analogous claim for purposes of section 1983 is a common law tort. That's the thing that's most like a section 1983 claim. So the real question here is does New York State provide courts that can hear common law tort claims? There is no dispute in this case that they do.

Justice Ginsburg: Now, why can't New York take the position, we want to be realistic about these suits? New York has provided that it is going to -- it's going to pick up the tab. If you sue a correctional officer, New York is going to pick up the tab.

So -- so we are going to channel this suit to the court, the one court in the State that deals with the State, the sovereign, paying money, the court of claims. So all they are doing is recognizing the reality that this is a suit against New York, not the correctional officer because it won't cost the correctional officer a dime; New York is going to provide counsel and is going to pay any judgment.

So really where this case belongs is in the court that hears claims against the State of New York.

Mr. Murtagh: Justice Ginsburg, the problem with that analysis, I think, is that in the court of claims there are all sorts of other limitations.

This -- this notion that this is simply a substitute claim and that it's just as good enough, I think really is a red herring in this case; because what has happened here is not that New York has created a separate court with specialized expertise that knows how to try these cases, which it probably could do under this Court's jurisprudence. Rather, what it has done is it's required you to sue the State instead of the individual, and then put a whole host of limitations on the sort of relief that you can seek, and on the way that you can bring your case.

Chief Justice Roberts: So it's done exactly what the Federal system has done. So that if you have a money claim against -- that is going to be against the Federal Government, here's what you do: You go to the Court of Claims, you have to go to the Court of Claims; and in that court all sorts of special rules apply about notice and other things.

Mr. Murtagh: And that is absolutely true, Justice Roberts, if the claim initially were a claim against the State. But of course section 1983 doesn't provide for a claim against the State. In Will v. Michigan this Court held that the State is not a person for purposes of section 1983, and so the only way you can have a section 1983 claim --

Chief Justice Roberts: Well, but in the Federal system if you sue a Federal official or a postman and in fact in reality it's going to be a claim against the United States, that has to go to the Court of Claims, too.

Mr. Murtagh: And Your Honor, that is absolutely something that Congress can decide to do with respect to Federal law, and New York can decide with respect to State law to do whatever it wants in terms of setting up where those claims can go.

What New York cannot do is to impose that policy judgment on the Federal claim, because Congress has already determined --

Chief Justice Roberts: I guess my point is that there's nothing fishy about what New York has done here. Which leads me to think, well, maybe it's not really discrimination against the Federal claim, it's a rational way to handle claims against the State treasury, just as the Federal system is a rational way to handle claims against the Federal treasury.

Mr. Murtagh: Regardless of how rational an idea this is or how good an idea this is, for this Court to adopt a rule that says that once a State disagrees with Congress about how people ought to be liable under a Federal remedy would require this Court in essence to say that the rationale of several of your previous cases could be undone. And I think this Court pointed out in Howlett that if all you had to do was say, our courts won't have jurisdiction over a certain category of claims that -- the Wisconsin legislature in Felder could have said: Our courts shall have no jurisdiction unless there is 120-day notice of claim provided.

The courts in Martinez in California -- the California legislature could have said, our State courts will have no jurisdiction --

Chief Justice Roberts: Well, that just goes back to our previous colloquy about what jurisdiction is and what it means. I mean, are you saying that if we look at this and we decide yes, this does really look like jurisdiction in the real sense, rather than just a jurisdictional label -- if we do that, then you lose?

Mr. Murtagh: I think that if this Court found that this were a jurisdiction -- a neutral rule of jurisdiction that constituted a valid excuse, that, yes, that would probably -- that would probably undermine my argument significantly.

I think to get there, Chief Justice, you would have to -- you would have to sort of engage in some interesting thinking which I haven't gotten my mind around, to be quite honest. The -- what this Court said in Howlett is, when we talk about jurisdiction, when we talk about what constitutes jurisdiction, we are talking about whether there is power over the subject matter and power over the parties involved. And I don't think the Respondents in this case even argue that the New York supreme courts don't have the power over the parties here or don't have competence over this kind of subject matter.

This case doesn't have any of the attributes, this rule, this correctional law section 24, doesn't have any of the attributes of a neutral procedural rule --

Justice Alito: Isn't jurisdiction whatever the legislature says it is? Do you think there is some sort of -- you know, a Platonic ideal of jurisdiction versus non-jurisdiction, and that's what we apply here?

Mr. Murtagh: Justice Alito, I think that jurisdiction -- that to determine whether a rule is jurisdictional requires that this Court look at the purpose and the effect of the underlying statute. And if all a State has to do is say it's jurisdictional and if jurisdiction is whatever the State says it is, then that means that, going back to Felder and Martinez and some of those cases, a State could -- could evade this Court's rulings merely by reframing the statutes in the words of jurisdiction.

Justice Alito: So what is the -- what is the standard for determining whether it's jurisdictional or not?

Mr. Murtagh: Well, Justice Alito, the -- the important points, I think, come out of Felder: That it is a neutral rule that is applicable to all cases and that is not concerned with the underlying substance of the claim. So, for example, when we go back to the old cases, Douglas, Mayfield, Herb v. Pitcairn, this Court was looking at situations where there were rules that applied everywhere.

Justice Scalia: But you have acknowledged that it would be okay and would be a jurisdictional rule if the court -- if the State courts did not entertain tort actions. That's a rule that goes to the substance of the claim, isn't it?

Mr. Murtagh: Well, Your Honor, it goes to the substance of the claim, but it applies generally across all claims. It's not -- it's not picking and choosing. It's not targeted towards a specific --

Justice Scalia: Yes, it's picking and choosing tort claims.

Mr. Murtagh: Well, it's picking and choosing tort claims as opposed, I suppose, to contract claims.

Justice Scalia: Yes.

Mr. Murtagh: But it's not, Your Honor, saying: We're going to accept this kind of tort claim but not that kind of tort claim. We're going to allow to you sue a police officer who beats you up, but you can't sue a corrections officer who beats you up.

That's the real difference, I think.

Justice Breyer: Is there something you add -- you add to your statement of your rule? A neutral rule not related to substance, but related to the administration of the courts?

Mr. Murtagh: Yes, Justice Breyer. I think that --

Justice Breyer: Don't just be agreeable to be agreeable. Do cases actually say that?

Mr. Murtagh: I think, Your Honor -- I'd have to get the exact language from Felder, but I think that it is a neutral rule regarding the administration of the courts that is unrelated to the underlying substance of the matter or the nature of the parties.

Your Honors, the most recent -- going on a little bit about this jurisdictional issue -- the most recent case that held that there was a neutral rule of judicial administration, a neutral procedural rule, was Johnson v. Fankell. And this Court will recall that, in that case, Idaho had a rule that required that there be a final judgment before an intermediate -- before an appeal could be taken from that.

This Court allowed Idaho to impose that rule on a section 1983 claim because the defendants there had argued that they were entitled to qualified immunity.

They lost at the trial level. They then sought an interlocutory appeal. And this Court said certainly Idaho can set forth the ways in which you take appeal from any kind of a case, and, more importantly, this is not a rule that is targeted at civil rights claims and in fact may lead to over-enforcement of civil rights claims because it prevents a defendant from getting out of the case very early.

That's the kind of case where there's a neutral rule. That's not what we have here.

Justice Kennedy: You are being generous when you said that we would recall -- at least that I would recall the case. Is it Idaho, did you say, or Johnson?

Mr. Murtagh: In Johnson v. Fankell, I believe --

Justice Kennedy: It was Johnson. I thought you said Idaho.

Mr. Murtagh: Yes. I'm sorry, Your Honor.

I just said that the Idaho courts were involved in that one.

Your Honor, the approach that's urged by the Respondents in this -- in this case really would dictate different results, as I mentioned. You'd wind up -- in Felder and in Martinez, the courts could just use the word "jurisdiction." And actually, even if you go back to three of this Court's earlier cases, Mondou in 1912, McKnett in 1934, Testa v. Katt in 1947 -- in Testa v. Katt, this Court required Connecticut to hear an Emergency Price Control Act even though Connecticut regularly refused to hear cases that they thought were penal in nature. And what this Court said was: You hear analogous claims; you have to hear the Emergency Price Control Act.

Now, if this Court were to adopt a rule that the State could simply say, we have no jurisdiction over certain categories of claims, then in Testa, Connecticut could simply have said: We are not going to have jurisdiction over any case seeking penal or punitive types of damages. That would require that we really undo a lot of this Court's jurisprudence.

If there are no further questions at this point, I would reserve my time, Mr. Chief Justice.

ORAL ARGUMENT OF BARBARA D. UNDERWOOD ON BEHALF OF THE RESPONDENTS

Chief Justice Roberts: Thank you, Mr.

Murtagh.

Ms. Underwood.

Ms. Underwood: Thank you, Mr. Chief Justice, and may it please the Court:

The Federal Constitution permits State courts to hear Federal claims, but it does not require a State to hear them so long as the State does not discriminate against Federal claims in comparison with similar State claims.

New York's statute fully satisfies that requirement. New York courts cannot hear damage actions against prison officials for conduct in the scope of their employment. And it doesn't matter whether State or Federal law is the basis for the claim.

Justice Souter: Ms. Underwood, if that's going to be the criterion, that they exclude a State cause of action as readily as they exclude a Federal cause of action, then isn't the State always going to win every case in which there is an issue like this one? Because unless the State is so blatantly discriminatory or so blatantly inadvertent as to leave a cause of action of its own making on the books, when it says, "We won't hear the Federal one," what you posit is always going to be the case. And if that's -- if the rule is that as long as there is no State action comparable to the Federal action that is disallowed, the State wins, in practical terms the State always wins.

Ms. Underwood: Well, that's not so. This Court has in fact invalidated statutes and found discrimination. There were -- three of the early FELA -- two FELA cases and the Testa case itself. In Testa, contrary to what was just suggested, the Court -- this Court found discrimination. When Rhode Island said that it wasn't going to hear the emergency price control penal statute --

Justice Alito: Well, suppose a State extends --

Ms. Underwood: -- the Court --

Justice Alito: Suppose a State extends sovereign immunity to a broad class of State employees with reference to State law claims. Would that mean that the State could close its courts to all 1983 actions --

Ms. Underwood: No. Immunity --

Justice Alito: -- against those same defendants?

Ms. Underwood: No. Immunity and jurisdiction are really quite different. They both have the result that the defendant loses.

Justice Alito: Well, what if they phrase it in terms of jurisdiction? There is no jurisdiction in courts of New York to hear any intentional tort action against a correctional official for action taken during the performance of the correctional officer's duties.

Do they then close the New York courts completely to 1983 actions against correctional officials?

Ms. Underwood: If they not only used the word "jurisdiction" but gave the rule jurisdictional effect -- that is to say, a jurisdictional bar is one that can't be waived by the defendants, whereas immunity can be waived. So it protects courts, not defendants.

Justice Ginsburg: Ms. Underwood, there is a feature of this case, even assuming that you were right about -- New York has not withdrawn jurisdiction from its courts over a 1983 claim; it has simply limited, taken away, one mode of relief. That is, you can sue a correctional official for declaratory relief, you could sue for injunctive relief. All New York has taken away is one mode of relief. That's not jurisdictional unless you say that every element of damages is jurisdictional.

New York allows this type of claim in their courts. We are talking about jurisdiction over the person? Yes, they have jurisdiction over the correctional official's person. Subject matter -- subject matter is a 1983 case? Yes. All they are cutting off is one form of relief.

Ms. Underwood: Well, it's not just any form of relief. It's not just, for instance, the type of damages. The difference between law and equity has a long tradition in this country. They are really two different actions, an action for injunctive relief or an action for damages. The courts now hear them together.

But what New York has said is it has no jurisdiction -- its courts have no jurisdiction against -- over damage actions against corrections officials.

And as I was saying earlier, jurisdiction is different from immunity, both because it can't be waived -- so it's about courts, not the defendants -- because it -- because a dismissal won't bar litigating the matter in Federal court. A dismissal -- an immunity would result in a judgment --

Justice Ginsburg: Practically -- practically, hasn't what New York has done is to confer on its correctional officers absolute immunity, not merely qualified immunity? So if you want to be realistic about what is the effect of New York's law, it says you are going to be subject to equitable relief, declaratory relief, but as far as money is concerned, you are absolutely immune.

Ms. Underwood: I don't think it's immunity.

I think it's a refusal to hear the case.

Justice Ginsburg: What's the difference of -- practically?

Ms. Underwood: Practically --

Justice Ginsburg: Isn't the -- isn't the practical effect -- if you tried to explain to correctional officers what is your exposure, you would say: You have absolute immunity from anything that's going to try to reach into your pocket.

Ms. Underwood: Not at all. This is like a forced removal, is what it really is.

Justice Scalia: They're -- they are liable in Federal court.

Ms. Underwood: Yes, that's exactly correct.

Justice Scalia: They're certainly not immune in Federal court.

Ms. Underwood: They are fully liable in Federal court. That's where these cases are being brought right now. Congress has never expressed any policy for mandating that they be brought in State court, because even if these cases could have been brought in the first place in State courts, the Federal -- the State defendant could remove it to Federal court.

Justice Ginsburg: I thought the theory was that in our Federal system, Federal law is State law, too? That is the highest law for a State. Federal law by virtue of the Supremacy Clause is State law; and sometimes Congress creates an exclusive Federal jurisdiction over certain types of claims. But if Congress doesn't do that, the assumption is there is concurrent jurisdiction.

Ms. Underwood: That's correct. But that's if the Court is open to the case. The Fender case, the line of cases that Petitioner has been pointing to, is simply not applicable here where the State opens its courts to the cases. If the State were hearing damage actions against corrections officers, it couldn't give them immunity.

Justice Breyer: But what is the neutral reason related to the administration of courts that leads the State to close its door to a damage suit under 1983 against correctional officers?

Ms. Underwood: Well --

Justice Breyer: -- taking as the assumption exactly what Justice Ginsburg said. I mean, I can't find any reason that's neutral and administrative other than what Justice Ginsburg said, which is neither:

namely New York does not like 1983 actions for damages against correctional officers. What other reason is there?

Ms. Underwood: First of all, these -- this -- I would like to correct an observation. This -- this is not aimed only or even principally at 1983 actions.

This law does predate the -- not the enactment of 1983, but the proliferation, the use -- the widespread use of 1983; and in fact it affects a great many State cases.

It's not only --

Justice Breyer: But Testa v Katt was a case in which the Court found that the State allows some State action that are analogous to the Federal action and you can't discriminate against a Federal action.

Ms. Underwood: That's true.

Justice Breyer: This is not that case.

This is a case where the State doesn't allow -- doesn't allow -- damage actions like the Federal action --

Ms. Underwood: If --

Justice Breyer: -- and this Court has not decided to my knowledge how we apply the basic rule in such a situation. So I would think that the way we would apply it is take the standard and ask the State, what is the neutral administrative-related reason? Because what they are saying is, if you look at this, from an administrative point of view, it's that red-haired, one-eyed man with a limp.

Ms. Underwood: Prisons are large institutions in rural counties that generate a vast amount of litigation. This particular prisoner was in a prison in a rural county like Wyoming County that had I think 3,000 or so prisoners in it, and the litigation generated by the prisons isn't just actions by prisoners. This statute doesn't apply only to actions against -- by prisoners. It also applies to actions by prison employees against other prison employees -- actions by anybody against a -- corrections officials.

So it's all the vast forms of litigation, principally but not exclusively prisoner complaints, that arise out of prisons.

That is a very large and burdensome amount of litigation, unlike litigation against State police, which some have said is comparable, which is dispersed all over the State. This is concentrated where the large prisons are; and it is a reasonable decision -- a neutral reason, if you will -- for the State to decide to take those actions out of the courts of general jurisdiction, to take actions -- damage actions arising out of the prisons out of the courts of general jurisdiction, where it would be concentrated in a few counties where the large prisons are.

Justice Scalia: General Underwood, your friend on the other side acknowledges that if New York states closed its courts to tort actions, that would be okay. But I don't see how closing your courts to tort actions has any administrative -- particular administrative rationale behind it, do you?

Ms. Underwood: No, and I don't believe that this Court's cases about jurisdiction, as distinguished from its cases about case handling rules, require that kind of neutral administrative feature.

I only was suggesting that there exists such an explanation for this rule; but in fact, this Court has treated quite differently cases about case handling, and that makes sense. Because if you hear a claim -- if the State hear a claim and then impose even a nondiscriminatory -- but it's certainly a discriminatory rule that tends to defeat the claim, the State might induce plaintiffs to bring their claims in State court and then lose them under disadvantageous procedures.

Justice Kennedy: Suppose that the State of New York said that in suits against corrections -- against the corrections department, against the State, there should be no damages awarded to a prisoner in excess of $3,000; and then the --

Ms. Underwood: Well, I think --

Justice Kennedy: -- and then 1980 -- and then the prisoner tries to bring a 1983 suit in State court.

Ms. Underwood: Well, I think --

Justice Kennedy: Would the case -- would the analysis be just the same?

Ms. Underwood: No, I don't think the analysis would be the same. I think once the State opens its doors to a damage action against corrections officials, the question would be -- the answer might or might not come out the same way, but I think it probably would come out differently.

The -- the question would be, does that procedural rule -- there are two questions: Is it discriminatory? You're saying -- your hypothetical is that it's not discriminatory as between State and Federal, and the second question would be does it undermine the Federal cause -- does it undermine the Federal claim? And so in Martinez, when this Court said State immunities can't apply to Federal 1983 actions, only Federal immunities can apply, the Court was careful to observe that California had opened its courts to this case and had an immunity, whereas --

Justice Kennedy: In my hypothetical, do you think it undermines the Federal claims?

Ms. Underwood: No. I think it could be argued, I think it would be argued that limiting damages undermines a Federal action that is meant to bar courts from interpretation --

Justice Kennedy: But why can't it be argued here that Congress has an important mechanism in holding prison officials -- prison correctional officers -- personally liable, so that they are themselves aware that they have a constitutional obligation that is enforceable against them, and New York has taken this away? Now you may -- we may argue that if the State responds in damages, the prisoner is better off; but Congress has not made that judgment. Congress has made the judgment that the correctional officer himself or herself should be responsible.

Ms. Underwood: Well, I don't believe Congress has made that judgment. So that I -- and that's my answer to why I don't think this undermines the Federal cause --

Justice Kennedy: No, it has made that judgment. That's the whole purpose of 1983.

Ms. Underwood: No, the purpose of 1983 is to -- actually was two things. It's to provide a Federal forum and it was to provide compensation for these torts, and I believe that these --

Justice Scalia: He's still responsible, right? I mean --

Ms. Underwood: Yes.

Justice Scalia: He's still responsible.

Ms. Underwood: I think there is no Federal policy --

Justice Kennedy: No, the correctional officer, under the scheme we are talking about, is not responsible in damages.

Ms. Underwood: He is responsible to exactly the same degree as he would be, were he sued personally, because New York indemnifies him and there is no requirement -- Congress has never shown any objection to indemnification.

Justice Kennedy: But -- does your case turn on whether or not there is an indemnification agreement?

Ms. Underwood: I don't know that our case turns on whether --

Justice Kennedy: I shouldn't think so.

That hasn't been your argument so far.

Ms. Underwood: Well, what I'm saying is to the extent -- I don't believe we need to -- if you think that we need to -- that there may be a conflict with a Federal policy, I think the statute stands because it's nondiscriminatory and jurisdictional. But if there is a question, it's not a question of whether -- yes.

Justice Stevens: Just you ask an offshoot of Justice Kennedy's question. Supposing you had a statute that said in railroad cases there should be no damage -- railroad tort cases, brought by employees of railroads, there was no damage judgment in excess of $10,000, in State court? Would that be okay?

Ms. Underwood: No, I don't think so, for the same reason I don't think -- that is, if you have a tort remedy that the State is hearing than a limit on recovering that goes -- that is inconsistent with congressional policy is not permitted. But if the State were to say we won't hear any tort cases or we won't hear any tort cases involving railroads or we won't hear any tort cases --

Justice Stevens: Do you think -- consistently with our FELA cases it could have a rule that no tort -- no tort cases may be brought by railroad employees against the railroad in a State court.

Ms. Underwood: State or Federal. There is nothing in your FELA cases that says that as long as the State is closing its doors equally. And there are, of course, political reasons --

Justice Stevens: Well, they shouldn't have closed the Federal doors under the FELA. They surely could bring the suit under Federal.

Ms. Underwood: No, but -- but --

Justice Stevens: But you are saying they could -- as opposed to State courts, the suits against railroads where the damage gets -- over $10,000?

Ms. Underwood: No, I don't think they could put the damage requirement on, because then they would be --

Justice Stevens: But they could totally close it?

Ms. Underwood: They could totally close the doors, and I think that's different. That is not hearing the case, and in closing -- closing the doors of the court evenhandedly to State and Federal cases. That is -- that is --

Justice Stevens: If you leave the door open to suits against every other possible defendant except railroads? I mean, it seems to me your hardest case is really the FELA cases here.

Ms. Underwood: I think the FELA cases, some of which were -- some exclusions were upheld and some of which were struck down, support our position, because they only strike down exclusions of jurisdiction where there is a discrimination, where the Court finds a discrimination between the Federal and State claim.

In Mondou, Connecticut was hearing suits against railroads under State law. It was even hearing suits against railroads under other States' law that imposed -- liability, but it was refusing to hear only suits under Federal law. And that's why the Court struck it down.

Similarly, in McKnett and in Testa, in each case this Court struck down in limitation on the ground -- not that the State had an absolute obligation to hear the Federal claim, but that it had an obligation, if it was going to exclude jurisdiction, to exclude it evenhandedly.

Justice Ginsburg: I thought that in Testa the State said we are evenhanded, we don't bring -- we don't allow penal actions to be -- to be brought on the civil side of our court?

Ms. Underwood: But what -- but what this Court pointed to in Testa was that while they said that, they did, in fact, hear pun -- double damage actions, which is what this was. It was penal in a sense not of being a criminal, but as being a double damage -- a multiple damage action.

And what the Court said was because Rhode Island does hear double damage actions arising under its own law and under the Federal Fair Labor Standards Act, essentially the rational they gave for excluding the Emergency Press Control Act had been proven false and must -- unless as the only explanation unwillingness to enforce the emergency press control.

Justice Breyer: So what you have now is you have one reason, I think, would be clearly wrong; I think, I assume that. But if the State closed their doors to this kind of suit because they say we think our correctional officers should be immune from damages, now we know they can get money under the Federal law, but we want nothing to do with this. That, I think, would be discrimination against the suit if that were their reason.

Now, there is a neutral reason, and it's demonstrated, and it is, well, you see, there are just too many -- there are just too many lawsuits by prisoners against prison officials. And we don't want all that business in that court, and here's how we deal with it.

One, we take away their cause of action, that's what we do under State law, and then we -- the feds -- we throw them back to Fed court? Without --

Ms. Underwood: Or -- or we offer them a court of claims.

Justice Breyer: You don't offer them a court of claims, because what you offer in the court of claims is an action against the State. And you can say that isn't a big deal because after all, most of these really are actions against the State anyway, because they get compensated.

Okay, so if I treat that as neutral, I have one bad reason and one good reason. And how do I know which is which? That is, is it really true that there are a lot of suits brought in State courts in places with prisons under 1983 for damages rather than Federal courts? I don't know what the numbers are? Have you looked them up at all?

Ms. Underwood: Well, they aren't -- this is what I can tell you. I think 1983, they are -- I mean, suits against --

Justice Breyer: -- 1983 actions, but maybe they bring them mostly in Federal court.

Ms. Underwood: They do bring them in Federal court.

Justice Breyer: Okay. So one way to test this out would be the following: If we had numbers and knew, you know, about how many State -- how many damage actions against prisoners were being brought in State courts in districts that have prisons there, and then we saw how much New York was really hurting and then we asked another question, maybe there is some Federal security actions, you see, where there is no State comparable action and we found out, well, the State lets them bring these actions in State court. So, there are ways of dealing with this empirically. Have you any sense of it?

Ms. Underwood: Well, what I can tell you is that there are a great many State law -- I can't tell you numbers -- a great many State law actions against corrections officers. They are either in the court of claims or they are in Federal court because this statute says that the courts have no jurisdiction over the damage actions, and it doesn't matter whether they are 1983 or state law. But there are a great many -- I mean, it says to -- read them.

The State law actions -- there are many state law actions that can't be constitutionally characterized. There is all kinds of, you know, damaging loss to property, medical malpractice, negligence, failure to protect from harm, things that -- many things that the prisoners bring suits against that are not constitutional. They aren't in the Supreme Court. They would be if you struck this statute down.

Justice Souter: It's not really that they are not the Supreme Court, but the -- the damages are limited, aren't they, because in the court of claims, as I understand it or under the statute, there can't be any punitive damages? Whereas if it were a straight 1983 action in the State supreme court, punitive damages would -- would be a possibility.

Ms. Underwood: Well, there are two things to say about punitive damages. One is that, yes -- there are three things -- there are no punitive damages in the court of claims. Punitive damages, of course, are available in Federal court, which is fully available to these plaintiffs and is where they normally are if they think they have a punitive damage claim.

It is also case that actions outside the scope of employment are not covered by this statute.

Justice Souter: They could be brought into the state supreme court --

Ms. Underwood: They could be brought into the state court.

Justice Souter: -- which is a -- which is one of your jurisdictional problems because the -- the -- in effect, New York is saying the most -- the most egregious class of cases, the cases in which the correctional officers are not only doing some actionable but something outside the scope of their duty, well, we will hear them, they are fine. And we will provide punitive damages for them.

Ms. Underwood: Well --

Justice Souter: Which -- which makes it a little tough to say that in the less egregious cases there is a -- that the -- that the exclusion of the less egregious cases is a jurisdictional exclusion as distinct from an exclusion based upon policy about how less egregious cases ought to be handled.

Ms. Underwood: Well, it is a jurisdiction -- it is framed as jurisdictional, it is treated as jurisdictional. The New York courts say --

Justice Souter: No, but aren't you simply saying, look, we go around calling it jurisdictional.

And -- and my point was, that isn't it difficult, isn't it, in fact, inappropriate to call it jurisdictional when you have a class of the most egregious cases under 1983 which the State supreme courts hear, and there is, nonetheless, a second class of cases, also 1983 -- they simply happen to be less egregious -- that they don't hear? Isn't it difficult, using jurisdictional in the normal sense of the term, to say that is a jurisdictional distinction?

Ms. Underwood: No, because what the jurisdictional bar is for damage actions against correctional officers where actions is the scope of their employment -- and the New York courts don't just say it's jurisdictional. They give it the effect of a jurisdictional bar.

Justice Souter: What if the New York legislature passed a statute saying the -- the State court supreme court will not have jurisdiction over 1983 actions for -- for harm committed on Wednesday, would you say that that was a jurisdictional rule?

Ms. Underwood: I think --

Justice Souter: I will answer the question for you, if you want.

Ms. Underwood: I think it would be hard to --

Justice Souter: You wouldn't have.

Ms. Underwood: -- to find a rationale for it.

Justice Scalia: Even if it were, it would be discriminatory and invalid, right?

Ms. Underwood: I was going to say, I don't think that its flaw is that it's not juris -- it's jurisdictional. The flaw is it's irrational.

Justice Scalia: Or discriminatory. It's picking on --

Ms. Underwood: Or as between -- as between places, yes. But --

Justice Souter: Would you say it was jurisdictional so long as the Supreme Court said -- or so long as the State legislature said, no State or Federal actions for -- for -- for Wednesday damages? Would you call that jurisdictional?

Ms. Underwood: I would call it very strange.

Justice Souter: You might call it crazy outside of court, but the one thing you wouldn't do is walk in a court and say it's jurisdictional.

And the -- my -- the point I am getting at is, the finer the comb that -- that -- that keeps the certain class of case out, the less plausible it is to say that this is a jurisdictional kind of criterion sense of it?

Ms. Underwood: Well, what I can tell you is that there are a great many State-law -- I can't tell you the numbers. There are a great many State-law actions against corrections officers.

They are either in the Court of Claims, or they are in Federal courts because this statute says that the courts have no jurisdiction over the damage actions. And it doesn't matter whether they are 1983 or State law. But there are a great many -- I mean it says, to read them, that State-law actions -- there are many State-law actions that can't be constitutionally characterized.

There is all kinds of, you know, damage and loss to property, medical malpractice, negligence, failure to protect from harm, things that -- many things that the prisoners bring suits against that are not constitutional. They aren't in the Supreme Court. They would be if you struck the statute down.

Justice Souter: It's not really that they are in the Supreme Court, but the -- the damages are limited, aren't they? Because in the Court of Claims, as I understand it, or under the statute, there can't be any punitive damages; whereas, if it were a straight 1983 action in the State supreme court, punitive damages would -- would be a possibility.

Ms. Underwood: Well, there are two things to say about punitive damages: One is that, yes, that -- there are three things. There are no punitive damages in the Court of Claims. Punitive damages are, of course, available in Federal court, which is fully available to these plaintiffs and is where they normally are, especially if they think they have a punitive- damage claim.

It is also the case that actions outside the scope of employment are not covered by this statute.

Justice Souter: Well, they could be brought into the State supreme court.

Ms. Underwood: They could be brought into the State supreme court.

Justice Souter: Which is one of your jurisdictional problems because the -- the -- in effect, New York is saying the -- the most -- the most egregious class of cases, the cases in which the correctional officers are not only doing something actionable but something that is either outside the scope of their duty, but we will hear them. They are fine, and we will provide punitive damages for them.

Ms. Underwood: Well, I think the rationale for that --

Justice Souter: Which makes it a little tough to say that in the less egregious cases there is a -- that the -- that the exclusion of the lesser cases is a jurisdictional exclusion as -- as distinct from a -- an exclusion based upon policy about how less egregious cases ought to be handled.

Ms. Underwood: Well, it is a jurisdictional -- it is framed as jurisdictional, and it is treated as jurisdictional. The New York courts say --

Justice Souter: Yes, but aren't you simply saying: Look, we go around calling it jurisdictional.

And -- and my point was that isn't it difficult -- isn't it, in fact, inappropriate to call it jurisdictional when you have a class of the most egregious cases under 1983 which the State supreme courts hear. And there is, nonetheless, a second class of cases, also 1983, that simply happen to be less egregious that they won't hear.

Isn't it difficult, using "jurisdictional" in the normal sense of the term, to say that is a jurisdictional distinction?

Ms. Underwood: No, because what the jurisdictional bar is for damage actions against corrections officers who are acting in the scope of their employment. And the New York courts don't just say it's jurisdictional. They give it the effect of the jurisdictional bar.

Justice Souter: When has the New York legislature passed a statute saying that the -- the new -- the State supreme court will not have jurisdiction over 1983 actions for -- for harm committed on Wednesday? Would you say that that was a jurisdictional rule?

Ms. Underwood: I think -- I think --

Justice Souter: I will answer the question for you, if you want. You -- you wouldn't have --

Ms. Underwood: I am just trying to find a rationale for it.

Justice Scalia: Even if it were, it would be discriminatory and invalid, right?

Ms. Underwood: I was going to say I don't think that its flaw is that it's not -- it's jurisdictional. The flaw is that it's irrational.

Justice Scalia: Or discriminatory.

Ms. Underwood: Or discriminatory, yes.

Justice Souter: Would you say it was jurisdictional so long as the -- the Supreme Court said -- so long as the State Legislature said no -- no state or Federal actions for -- for Wednesday damages? Would you call that "jurisdictional"?

Ms. Underwood: I would call it very strange jurisdictional --

Justice Souter: You might call it crazy outside of court, but the one thing you wouldn't do is walk into a court and say it's jurisdictional. And my -- the -- the point that I am getting at is: The finer the comb that -- that keeps the certain class of case out, the less plausible it is to say that this is a jurisdictional kind of criterion at work here.

Ms. Underwood: Well, in --

Justice Souter: And that's what I -- that's why I keep getting at the point that when -- when you lay in some 1983 actions, the worst ones, the ones with the highest potential damages, but you say, well, the -- the less awful ones, the ones that may be within scope of employment, they can't come in, it seems to me that the -- that the teeth on the comb are getting rather fine. And in terms of our normal usage in -- in applying this criterion, it -- it is not plausibly jurisdictional.

Ms. Underwood: Well, unlike the Wednesday case, our -- our statute is rational, because it takes out of the courts of general jurisdiction the cases that are most numerous and that are most appropriately indemnified by the State. But it leaves in the courts of general jurisdiction the ones that are less numerous and that are not appropriately indemnified or turned into actions against the State. So it's rational unlike the Wednesday cases.

Justice Kennedy: One of the concerns I have in this case is the scope of employment is often litigated, and it would seem to me that the State of New York might routinely say, oh, this is not within the scope of employment.

Ms. Underwood: Well, there is a body of cases that are quite generous --

Justice Kennedy: Which -- which means that this is a very difficult distinction and is a further burden on the 1983 ride.

Ms. Underwood: The law of the State of New York is relatively clear on this. The kinds of cases that are outside the scope of employment are prisoner rapes and things that are done by corrections officers that do not in any way further the -- the objective.

They are simply --

Justice Kennedy: I think that's a rather routine defense. But why are they -- why are they left in the supreme court?

Ms. Underwood: Because they are not appropriately -- because the State doesn't want to take responsibility -- when the State statute takes them from the supreme court, then actions on such matters can be brought against the State in the court of claims. And the state is not taking responsibility for those cases and will not indemnify them.

Justice Kennedy: When was this statute first enacted?

Ms. Underwood: Well, the statute was first enacted in -- in about 1947, or so.

JUSTICE: And then you say they were not -- that 1982 is on the books, but, gee, it wasn't -- it wasn't --

Ms. Underwood: It was not -- it was nothing

JUSTICE: It pretty clearly was not aimed at defeating Federal actions.

Ms. Underwood: Correct. It was not aimed at defeating Federal actions. It was aimed at just -- at -- at managing the --

JUSTICE: It had not even been held then that State Farm was available for 1983 actions.

Ms. Underwood: That's correct.

JUSTICE: Yes.

Ms. Underwood: That's correct.

JUSTICE: Can I - -

Ms. Underwood: The rise of Federal 1983 actions came subsequently and -- and --

Justice Scalia: That -- that's an important factor, I would think. Let me ask another question. It -- it's a standard rule of international law that no State will enforce the penal laws of another State. I assume the Federal Government could not -- maybe I am wrong to assert this, but could the Federal Government require New York to prosecute federal crimes?

Ms. Underwood: I don't know the answer to that.

Justice Scalia: I don't, either, but I think it can't. I think it can't, probably. Then my next question is going to be: Why aren't punitive damages penal laws as well? And if that's the same principle, maybe there's no big deal about New York excluding penal damages --

Ms. Underwood: There may be, but there is no --

Justice Kennedy: 1983 does not -- correct me if I am wrong -- does not allow punitive damages against a State, does it?

Ms. Underwood: 1983 does not allow any liability. 1983 has been construed not -- the State isn't a person; it can't be a defendant.

Justice Kennedy: Not -- if I got that right, not in Monell.

Ms. Underwood: The State in Monell --

Justice Kennedy: Even in Monell -- even in Monell there is no punitive damages against the State, which is another reason you -- you were discriminating against the employee here -- against the prisoner.

Because the prisoner could get punitive damages against the correctional officer but not against the State in either court.

Ms. Underwood: Where he can -- where he can bring his 1983 action, he can get punitive damages. The State has closed its door to damage actions, 1983 or otherwise.

Justice Kennedy: In neither court can you get -- and correct me if I am wrong -- punitive damages against the State, which never --

Ms. Underwood: He can get damages -- under 1983 he can get damages against --

Justice Kennedy: He can under Monell.

Ms. Underwood: Not against -- no, not -- not against the State.

Justice Stevens: In county --

Ms. Underwood: Yes. In fact, what I was going to say is that one of the things that shows there is no congressional policy focused only on individuals is that municipalities and other government entities are proper defendants. The State is not. Likely, the government -- the Federal policy was -- found by this Court in construing 1983 for not making the State a defendant was not that that would undermine deterrent and that it was preferable to sue individuals, but that there was some reluctance -- concern about power or wisdom of -- of imposing liability on the States.

And, in fact, that is what this Court said in Monell and Will about why the State is not a person.

So I don't think 1983 is fairly read as embracing a congressional judgment that it's better to have liability against individuals, better from the plaintiffs' point of view, than against the State.

But the way this works is it is, in effect, a mandatory removal. And since Congress has no objection and has not prohibited removal the way it did in FELA cases, it's hard to see how the congressional policy is frustrated by this mandatory removal.

REBUTTAL ARGUMENT OF JASON E. MURTAGH ON BEHALF OF THE PETITIONER

Chief Justice Roberts: Thank you, General.

Mr. Murtagh, you have four minutes.

Mr. Murtagh: Mr. Chief Justice, just very briefly, General Underwood just mentioned that -- that this could be analyzed as a mandatory removal statute.

But the distinction, Your Honors, is that what New York State does when it removes these cases to Federal court is it uses an avenue that is provided by Congress. And, certainly, if Congress wants to provide for removal to Federal court, Congress can do that.

What the State cannot do is come in and interpose its policy judgment over and above what Congress has decided with respect to Federal claims.

Very quickly, I would like to address the second point. General Underwood pointed out that there are a lot of large prisons in rural counties in New York State; and, therefore, there are a lot of cases that might be brought in those courts. There is no dispute in this case, Your Honors, that if New York wanted to have a statute that said those cases will be transferred to the less busy courts of our State, that would be okay. That would be a neutral rule of judicial administration related to the operation of the courts that is unrelated to the substance or the identity of the parties.

Justice Kennedy: In that same act they might rescind the -- the laws allowing the State to respond in damages, in which case you won't obtain very much.

Mr. Murtagh: Well -- well, Your Honor, my client can't bring his Section 1983 claim in any State court because he can't bring it against the employees, because Correctional Law Section 24 keeps him out of the supreme court. And he can't sue the you State in the court of claims because in Will v. Michigan this Court said the State is not a person. So he simply cannot bring his Federal action in any State court if he wants money damages.

Justice Scalia: I find it hard to regard this as a non-neutral law when it was put on the books before there were any of these 1983 actions.

Mr. Murtagh: Well, Justice Scalia, the -- the very first iteration of this law was in 1947. The law was actually amended -- and it is discussed in -- in the joint appendix and there is some in the beginning of our brief -- in the early 1970's after there were a significant number of -- of Section 1983 claims that had begun to be filed.

Justice Ginsburg: Was there any substantive change from what the original enactment to the amendment -- the one that's currently enforced?

Mr. Murtagh: Justice Ginsburg, I don't recall whether there were any. We actually researched the legislative history and had a bit of difficulty going back that far. I don't recall whether there were a lot of substantive changes or not, quite honestly.

This is a statute, though, that the -- that the New York Legislature has -- has dealt with over the years.

One of the important things is that in the 1970's -- and I apologize for not having the exact date -- the New York Legislature said that the purpose of this was to provide immunity to corrections officials.

And as we pointed out in our briefing, there is a bill currently pending before the New York Legislature that says we want to extend the same immunity that we provide to prison officials to employees of the Office of --

Justice Breyer: They are saying -- they are also saying there is a neutral reason. The neutral reason is the State sees there are just too many cases in which prisoners are suing correctional officials.

So then they say: Here's what we are going to do about it. First, under State law, we will wipe out all the suits and give them instead an action against the State. But we know there are still some Federal cases about the same thing. So what we are going to do is we are going to say bring them in Federal court. Why bring them in State court? So now we've dealt with our administrative problem.

So that's their neutral administrative reason. Now, people would like to bring 1983 actions still in State or Federal court. It may be more convenient. They get attorneys' fees, and the attorneys' fees you don't get under the State law. So why isn't -- or why is -- I guess that's the question for me: Is this an adequate, neutral, administrative reason or not?

Mr. Murtagh: No, Justice Breyer. The -- the reason that is given in this particular case, if you -- if you go through the Respondent's briefing, the reason that is given is that there -- is that this statute exists because there are lots of frivolous, vexatious lawsuits.

Justice Breyer: Well, forget all of the characterizations. If we could look into the motive, maybe we would have a different view. But all we have is the statute on the books. And, as in many cases, the people who are charged with defending those statutes think of very good reasons which are very plausible that could have motivated the people involved, and they have come up with the one that you have heard. Now, what's -- what's wrong with that one?

Mr. Murtagh: And I'm sorry, Justice Breyer.

The reason?

Justice Breyer: The reason is, you see, there are so many cases in which the person is suing -- the prisoner is suing the prison official that our courts are clogged. So what we are going to do is:

One, give the prisoners a good remedy under State law in a different court; and, two, close our doors to the comparable Federal case.

Mr. Murtagh: Justice Breyer, the answer is that the State can certainly do that with respect to the State-law claims.

What it can't do is try to shuttle Federal claims off to the Federal courts and close its doors for a hearing on similar State claims.

Your Honors, thank you for your time.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

(Whereupon, at 12:06 p.m., the case in the above-entitled matter was submitted.)