Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument next in No. 97-1472, the Michael A. Haddle v. Jeanette Garrison. We will wait just a minute, Mr. Stebbins. We're going to have to move along. We have another case here, Counsel. Mr. Stebbins.

MR. CHARLES C. STEBBINS, III: Mr. Chief Justice, and may it please the Court: This case is about whether there is any Federal civil remedy for a Federal witness in the position of my client who was fired from his job of 10 years' standing because he responded to a Federal subpoena, appeared at a Federal grand jury proceeding, prepared to testify as to facts involving a Federal health care fraud investigation.

JUSTICE SANDRA DAY O'CONNOR: Would you clarify for us what the status of Georgia law is on the subject of recoverability for at-will employment discharge?

MR. STEBBINS: Yes, Your Honor. Under Georgia law, as stated in the leading Supreme Court case of Georgia Power Company v. Busbin, which is cited in the brief, there is a cause of action for tortious interference with at-will employment which can be brought by the at-will employee for damages against any person other than his employer and those who share the immunity of the employer under State law.

JUSTICE O'CONNOR: Now, there was a supplemental brief calling the Court's attention to some new case.

MR. STEBBINS: Yes, Your Honor. It's my view that that case doesn't illuminate anything about this case whatsoever. I'm surprised that it was cited. In that case, the Robbins decision -- Georgia has a strong at-will policy that the employer can never be liable for discharging his at-will employee.

In the Robbins case, the employee contended that because he was an employee of a Federal credit union, he had a Federal statutory right to notice and hearing before he was discharged.

The Georgia Supreme Court found that an employee of a Federal credit union is not an employee of a Federal agency and has no statutory Federal right to anything more than any other at-will employee. The case does not change Georgia law in any respect as to that issue.

JUSTICE O'CONNOR: Could -- could this be considered, the loss of job, an injury to the person under Georgia law as opposed to property?

MR. STEBBINS: Your Honor, under -- under Georgia law, the action is characterized as an injury to property. However, in general common law among the jurisdictions, as I pointed out in the brief, some jurisdictions characterize this as an injury to the person, others as an injury to property.

What is the case is that all jurisdictions characterize it as either an injury to person or property, thereby falling within the language that Congress used when it gave a -- a Federal recovery under this Federal tort that Congress created for anyone who was injured in his person or property.

JUSTICE O'CONNOR: So, if the injury were purely an emotional injury as a result of what happened, would that be recoverable in your view?

MR. STEBBINS: Under the Federal statute, Your Honor, I'm not sure whether it would be or not. I believe the answer to that question would be the same answer that would be given if this were a case premised on Title 7 or section 1981 or section 1982 or any other Federal law that provides for liability for discrimination in employment of some kind. Congress is legislating, as the Court has often recognized, against the background of general tort law. I think the issue would be whether the emotional damage rose to the level that it would be compensated under ordinary tort law principles.

JUSTICE ANTONIN SCALIA: You say general tort law. So it is important to you that not only would Georgia give relief in this situation, but that, as you say, other States would all give relief. Suppose Georgia alone would give relief.

MR. STEBBINS: Well, I believe, Your Honor, that a Federal tort created by Congress should be governed by a uniform Federal rule of damages. It may borrow from State law rules, but I believe when it does so, it should borrow from the general common law tradition as embodied in the laws and the decisions of all the States. I don't think it would be appropriate. I think it would --

JUSTICE O'CONNOR: But under the Fourteenth Amendment, generally we look to State law for the definition of property.

MR. STEBBINS: Your Honor, I agree --

JUSTICE O'CONNOR: And why should we not do the same here?

MR. STEBBINS: Because this section of 1985 is not premised on the Fourteenth Amendment and, in fact, has nothing to do with the Fourteenth Amendment. This is the teaching of this Court in Kush v. Rutledge; was made explicit in United Brotherhood of Carpenters v. --

JUSTICE SCALIA: Suppose the State of -- suppose somebody is injured in -- in property which the State of Georgia would not say was his property. Are we going to adopt a Federal law of property?

MR. STEBBINS: No, Your Honor.

JUSTICE SCALIA: I mean, a particular property is damaged by -- by the miscreant under this statute. And, you know, the threshold question is, whose property is it? You say we adopt a Federal rule?

MR. STEBBINS: No, Your Honor, I don't say that. I would first point out that the chances of such a case arising are very small and they don't arise here --

JUSTICE SCALIA: So, you acknowledge we look to the State law for whose property it is, but then you want us to create a general Federal law to -- as to whether there has been a -- been a tort or not.

MR. STEBBINS: Well, again, Your Honor, I say this, that when Congress uses the phrase, injured in his person or property, when it used this phrase in 1871, to create a tort, not in the context of the Fourteenth Amendment where we're talking about the adjustment of authority between the State and Federal Government,

I believe that the content that has to be given to the term, injury to person or property, in the first instance has got to be drawn from what you might say is the common meaning of the terms. Now, I hasten to add that in this case it's not a significant distinction because the Georgia law clearly recognizes that my client had a, quote, valuable property right, end quote. That's the Georgia Court of Appeals in Troy v. Interfinancial. He had a, quote, valuable property right, end quote, in his at-will employment. So, if you refer --

JUSTICE SCALIA: It's not important to you, but it's important to us.

MR. STEBBINS: Yes, Your Honor, I understand that. And it would be my contention that although there are difficulties with the idea that when Congress says injured in his person or property, it is not referring directly to State law for the meaning of property.

The difficulties that would be inherent in taking the other position would be more serious for the power of the Federal Government to operate within its own sphere. For instance, if a State should take it into its head to declare that any number of things are not property which the Congress intended to protect when it protected its witness, the State might say that no contractual right is property either, but nobody would buy that because we --

JUSTICE SCALIA: Those people going to get reelected when they --

MR. STEBBINS: Well, I don't know about that, Your Honor. When the act --

JUSTICE SCALIA: Most unlikely. I mean, isn't there a significant deterrent for the State to -- to modify its -- its internal law just to spite the Federal Government?

MR. STEBBINS: Yes, Your Honor.

JUSTICE SCALIA: They're not going to do that.

MR. STEBBINS: That's true, but there's also a very -- it's very unlikely in my opinion that the Federal Government and the State government will disagree as to what property means.

What's happened in this case is that the Federal and State governments have disagreed as to who may have a recovery -- rather, as to who may be liable for an invasion of property.

JUSTICE DAVID H. SOUTER: Well, in -- in order to get to that issue, why do you look to tort law as such as opposed to going directly to the statute and saying the purpose of the statute seems to have been to protect people from getting hurt for testifying?

And therefore the injury that the statute must be -- must be referring to would be anything that a witness or potential witness would regard as enough of an injury to induce that witness not to testify or to fear that he would be hurt if he did testify. And if you look at it that way, you don't look to tort law as such, though tort law may be -- be helpful in suggesting things to you, you -- you look to the way witnesses are going to be motivated by what happens to them. And if you do that, you have a concept of injury which I suppose would clearly cover your case.

So, my question is, why do you confine yourself to tort law concepts, as helpful as they may be, as opposed to going right to the object of the statute and saying injury should be defined in terms of that ostensible object?

MR. STEBBINS: Your Honor, my only answer to that is that I agree with Your Honor, and I didn't mean to confine myself to --

JUSTICE SCALIA: Oh, you do. So, it doesn't have to be person or property. I mean, you -- you feel free to invent an object of the statute beyond the words? I mean, it says you have to be injured in your person or property. I mean, if someone says, if you testify,

I am going to break the -- break the knees of your -- of your son-in-law, would that be covered by the statute? Because, after all, it would fit the purpose of the statute, but are you injured in your person or property?

MR. STEBBINS: I believe the son-in-law has been injured, Your Honor, and I think he would have a claim.

JUSTICE SCALIA: That's right.

MR. STEBBINS: But I don't think you would have a claim.

JUSTICE SCALIA: But I'm the one who -- who's being deterred from testifying and either I have a cause of action or nobody does. We don't rewrite statutes up here, and -- and Congress, when it writes a statute doesn't -- doesn't say whatever it takes to -- to reach this objective.

It says we have this objective and these are the limits on it. And they have said here person or property. I don't know why you can come up and say anything that will -- will prevent people from being deterred from testifying.

You must acknowledge there are some things that will deter people from testifying which are not covered by this statute, like breaking the knees of my son-in-law.

JUSTICE SOUTER: But if I may interject, I think what you were saying was that anything that hurts the witness would be covered, not that anything that hurts a third party would be covered.

MR. STEBBINS: Yes, Your Honor. I think I have to go somewhere down the middle between what --

JUSTICE SCALIA: My son-in-law supports my daughter. I -- I feel very much hurt if my son-in-law cannot have gainful employment. That doesn't hurt me? It certainly does in my person or property.

MR. STEBBINS: Well, I think that the tort law concepts have got to have some relevance to the inquiry whether there has been a sufficient injury to person or property --

JUSTICE RUTH BADER GINSBURG: Mr. Stebbins, maybe I misread your position, but I thought you were saying the statute could just as well have said injured, any person who is injured, period. But that in his person or property was an endeavor to show the breadth of the statute rather than the narrowness of it.

MR. STEBBINS: That's correct, Your Honor, and I tried to illustrate that by reference to mid-19th century sources to indicate that that was the intention of Congress. I cited to Blackstone and to Cobb's Georgia Code as showing that at the time, and for all I know now, all injuries that would be compensable --

CHIEF JUSTICE REHNQUIST: But then you simply fall back on how do you define injury. Supposing that I'm in the habit of inviting you to go out to a football game and I have seats and you're subpoenaed to go before a grand jury and I say, well, you know, if you go before that grand jury,

I'm just going to get somebody else to go to the game this time. Now, that might meet Justice Souter's criteria of something that would bother someone a great deal and perhaps induce him not to testify, but is that injury in the light of the statute?

MR. STEBBINS: Your Honor, I would not think it was, and this is why general tort law is relevant to the determination of what the scope of injury to person or property is.

JUSTICE ANTHONY KENNEDY: Would you say that intentional infliction of emotional distress is injury?

MR. STEBBINS: I think it would depend on the degree of the emotional distress.

JUSTICE KENNEDY: If it's -- if it's compensable under State law as an intentional infliction of emotional distress, I assume it's injury.

MR. STEBBINS: Yes.

JUSTICE KENNEDY: Is it injury to person?

MR. STEBBINS: I believe that would be an injury to person, yes, Your Honor.

JUSTICE SOUTER: So, your point is that -- that general concepts of tort law inform our notion of injury --

MR. STEBBINS: Well --

JUSTICE SOUTER: -- but the -- but to -- to the -- to the witness who is the focus of the statute, but they don't confine us to particular categories of injury that may -- may or may not be recognized in a given State or even a generality of States at a given time. Is -- is that a fair summary?

MR. STEBBINS: I believe it is, Your Honor, but I would like to say that general tort law needs to inform the total phrase used by Congress, which is injured in his person or property. I think to -- to parse the phrase too closely would perhaps lead to results that were not intended. I think --

JUSTICE SOUTER: But I -- if I may interrupt you, I thought -- and maybe -- maybe I'm just not following you. I thought you had agreed with Justice Ginsburg that the reference -- in her suggestion that the reference to person or property is there to indicate the breadth of the injuries that may be the subject of this statute. And -- and in other words, it -- it's -- the phrase is there to -- to say we cover the waterfront, not to -- to indicate some constriction. Is -- is that correct?

MR. STEBBINS: That's true, Your Honor, but the way you know that that's true is you look at the way the phrase injured in person or property was used in the law generally, text writers, cases, and so forth, at the time in question.

I agree it was intended from -- from looking at the applicable general background of legal speech that was available at the time, the phrase injured in his person or property was intended to be inclusive of the universe of compensable injuries rather than exclusive or restrictive.

JUSTICE GINSBURG: May I ask you about compensable? If we would go this far with you and say it's an injury, but what would be the measure of compensation given that it was an at-will employment and the employer could have said, for any unpoisoned reason, go, I don't like you.

MR. STEBBINS: Your Honor, again this same question comes up, say, in a Title 7 case where this Court has never spoken to that issue, and I believe there's a difference of opinion among the circuits. I believe in our circuit, the Eleventh Circuit, the Court generally holds that the extent of compensation available will be measured by what it states vaguely as a reasonable standard. Let's suppose that the employer has not been able to prevail on his affirmative defense that he would have fired the person anyway.

Then, of course, the Court is not going to allow damages to go on forever. But this is not an issue that's peculiar to section 1985, part 2. This is an issue that exists with all Federal anti-discrimination laws to the extent that they affect at-will employment. No --

JUSTICE SCALIA: Mr. Stebbins, you're not only assuming or asserting that -- that injury to person or property means general -- general tort law, but you're also assuming that it means general tort law as it may evolve into the future. Why do you assume that?

If -- if, for example, at-will employment was not considered or any interference with at-will employment was not considered to be a tort at the time this provision was adopted, why -- why would I believe that the Congress which enacted this would want that rather minor injury to be sucked into the provision because some future states give causes of action for interference with at-will employment?

MR. STEBBINS: Well, Your Honor, I have two answers to that. First of all, the most direct answer would be that when Congress legislates in this broad manner and says, injured in his person or property, I believe Congress expects and it necessarily follows that this Court and the lower courts, the courts below, are going to develop a law to interpret these broad terms, and that law is going to change over time, just as in the antitrust laws which is the closest analogy in terms of the actual words used where there's a reference to injured in business or property.

This Court is then faced with the -- and the lower courts are faced with the necessity of developing the law as cases appear before it, and that's a necessary concomitant of a common law system.

But I'd also like to say more specifically I understand the -- the -- Justice Scalia, what you said about it matters to you all, but not to us, but I do want not to lose sight of the fact that there is no evidence at all that this injury was not compensable at common law at the time or that it would not be compensable under the State law of the State of Georgia to somebody. Now, I'd like to reserve any further time I have, Mr. Chief Justice, if there are no further questions.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Stebbins. Mr. Roberts, we'll hear from you.

MR. MATTHEW D. ROBERTS: Mr. Chief Justice, and may it please the Court: Petitioner was injured in his person or property because he lost wages when he was fired pursuant to a conspiracy prohibited by section 1985.

Subsection 2 of section 1985 protects the Federal courts by creating a Federal right to be free of conspiracies to interfere with Federal witnesses --

JUSTICE O'CONNOR: Well, should we look to State law to determine whether there's injury to person or property?

MR. ROBERTS: No, Your Honor.

JUSTICE O'CONNOR: Why not?

MR. ROBERTS: Injury to person or property was a term of art with a well-established meaning at common law. It meant a loss or damage that was compensable in a tort suit. Nothing in the other provisions of section 1985 or its legislative history warrants a departure from that meaning and, indeed, the limited legislative history on point confirms it. In addition, there's no question that lost wages were compensable in 1871 and that they remain so today. An employee who loses his job because he's struck by a car driven negligently can recover the wages he has lost, and he can recover them whether or not his employment was at will. Petitioner, who was deprived of wages because his employment was terminated by a conspiracy prohibited by section 1985, likewise has suffered a compensable injury.

JUSTICE SOUTER: Well, that -- that covers this case. What if -- what if in fact the only party here were the employer? What would the answer be then?

MR. ROBERTS: It's -- it's not relevant whether the -- the employer is the party or not. Our -- our point is not --

JUSTICE SOUTER: But under -- under Georgia law at the time the statute was passed, the employer would -- would be scot-free as a matter of State common law, I take it.

MR. ROBERTS: The wrong and the tort is the conspiracy that is prohibited by the second clause of section 1985. The question is whether there's been a harm or a loss that would be ordinarily compensated in a tort suit, and lost wages are that kind of a harm.

CHIEF JUSTICE REHNQUIST: But isn't there also a question whether someone who was incapable of committing the substantive offense can be guilty of conspiracy to commit it?

MR. ROBERTS: The -- the offense is conspiracy to deter a witness from testifying truthfully or to retaliate against a witness for testifying or attending court. I -- I don't think that there's any question that the employer can be guilty of that -- of that wrong.

The wrong is not wrongful discharge or tortious interference under State law. The wrong is the wrong that is prohibited by section 1985. The question is whether there's been a harm.

JUSTICE KENNEDY: Well, that says if two or more persons conspire to injure the party in his person or property.

MR. ROBERTS: That's -- that's one of the clauses. The -- the first clause of -- I mean, the first part --

JUSTICE KENNEDY: Isn't that the relevant clause here?

MR. ROBERTS: Well, I believe there are several. There are several relevant clauses, Your Honor. Let me -- let me try to explain. The petitioner has alleged a conspiracy to deter him and others from testifying, as well as a conspiracy to injure him because he testified.

I think what's really at issue before the Court is the remedy clause in the third subsection which gives the petitioner a right to recover the damages he suffered when he was fired pursuant to the unlawful conspiracy.

I don't think there's much of a question that petitioner has alleged a conspiracy that's violated by this subsection 2, clause i. And in reference to the question --

JUSTICE SCALIA: May I ask? It's not clear to me that this kind of thing is so obviously covered. I mean, suppose my wife and I have a -- a household retainer, a woman who's lived with us and taken care of the children and helped with the housework and so forth, all on an at-will basis.

And this woman decides to testify against us in some -- in some lawsuit. You're asserting that my wife and I couldn't, feeling wronged and injured by that, decide to -- that we no longer wanted this woman to work for us even though she has no contract. It's been just, you know, she can leave whenever she wants and we could fire her whenever she wants.

MR. ROBERTS: You could not --

JUSTICE SCALIA: It seems like a very strange result.

MR. ROBERTS: You could not conspire to injure her in her person or property in order -- on account of her testimony in Federal court. Yes, the -- that -- if the -- if your purpose was to retaliate against her for her truthful --

JUSTICE SCALIA: That's sort of -- that's --

MR. ROBERTS: -- truthful testimony, that -- that would be covered by the statute. The statute is trying to protect the Federal courts.

JUSTICE SCALIA: Only -- only if we interpret property as broadly as you -- as you want us to interpret it, and that situation makes me think maybe we shouldn't interpret it that broadly because --

MR. ROBERTS: I don't believe so. I don't believe so --

JUSTICE SCALIA: -- it seems an unreasonable result.

MR. ROBERTS: I don't believe so, Your Honor. The statute gives a cause of action to anyone injured in person or property.

JUSTICE JOHN PAUL STEVENS: Provided it's a conspiracy. If the individual did it to himself, it would not be covered, would it?

MR. ROBERTS: No. It only covers conspiracy, so --

JUSTICE STEVENS: So, they have -- both the husband and wife have to agree to do it.

MR. ROBERTS: Would have to agree together for that improper purpose and there would have to be an injury that was compensable in a tort suit in order for it to be covered. In addition, the -- the solution to -- to the concern that you're talking about can't be that the remedy for the Federal right that's created by section 1985 should depend on whether the person whose right is violated has an independent remedy under State law.

Congress enacted section 1985 precisely because it was concerned that State remedies were unavailable or ineffective. And as I said before, the purpose of the statute is to protect the Federal courts.

CHIEF JUSTICE REHNQUIST: What -- what about the situation Justice Scalia suggests where there's a question you're injured in your property? You say it's my property, but someone else says, no, that's not your property. It's A's property.

MR. ROBERTS: You must be injured in your -- the person whose action it -- it's injured in his person or property. I think that his is the relevant term there in resolving that question.

CHIEF JUSTICE REHNQUIST: But that doesn't -- you have to go to State law, don't you?

MR. ROBERTS: To determine whether it's his -- to determine whether he suffered an injury, I don't know if -- whether you have to go to State law or not. You -- if there's a question --

CHIEF JUSTICE REHNQUIST: Well, take --

MR. ROBERTS: It's a factual question I think, but --

CHIEF JUSTICE REHNQUIST: Wait -- wait a minute. I'm trying to ask you a question.

MR. ROBERTS: I'm sorry.

CHIEF JUSTICE REHNQUIST: If you'll simply slow down, maybe I'll be able to.

MR. ROBERTS: I apologize, Your Honor, Mr. Chief Justice.

CHIEF JUSTICE REHNQUIST: Supposing that the question is there's a house, and I say the house was injured, it was mine. But someone else says, no, under Georgia law that house belonged to me. How do you resolve that question?

MR. ROBERTS: I think that if the house belonged to another person under Georgia law, then there would -- it would not be an injury in his property under the statute, under the Federal statute.

It would be no injury to him under the Federal statute. So, yes, I agree that if there's a question of ownership --

JUSTICE O'CONNOR: That was my first question to you, whether we look to State law, and you said no. And yet, if under Georgia law there is no right whatever to maintain employment, then how could it be a property right as -- as against the employer?

MR. ROBERTS: The -- the question -- first -- first of all, the -- as I said before, we believe that the phrase, injured in person or property, was the term of art that was a unified meaning and that it encompassed all laws that were to be compensable under tort law. Even if you -- if you look at property separately, you still have to deal with the question of whether there was an injury to person here.

JUSTICE SCALIA: We agree with that that -- I mean, let's assume we agree with that, that it covers all injuries compensable under -- under tort law. The question is whose tort law. Some federally-imagined tort law or -- or State tort law? I mean, that's --

MR. ROBERTS: I think this Court -- the question --

JUSTICE STEVENS: Of course, if you don't own the house, it's not going to be compensable in anybody's tort law. There's no injury if you don't own the house.

MR. ROBERTS: Yes, Your Honor. That was the point that -- that I was trying to make, that there's been no injury to you.

JUSTICE SCALIA: Unless you create a Federal law of property, just as you want us to create a Federal law of torts. If you can do the one, why can't you do the other?

JUSTICE STEVENS: You don't have a Federal law to own other people's houses.

JUSTICE KENNEDY: Suppose -- suppose -- this might help. Suppose Georgia made it quite clear that there was no tort for interference with an advantageous business relation where you destroy an at-will employment relation. What then would be the answer in this case?

MR. ROBERTS: I still think the answer in this case would be that petitioner has a cause of action. The --

JUSTICE KENNEDY: Because?

MR. ROBERTS: Because the tort, the wrong, the right that's been violated is the right to be free of a conspiracy that's prohibited by subsection 2 of section 1985. The question is whether there's been a loss or a harm that is compensable in tort law.

Let me -- let me try to phrase it another way, if I may, to see if I can explain -- explain our position. This might be viewed as a Federal tort that's been created where, in order to have a damages action, one of the elements of it is that you prove damages.

That's what the requirement that injured in a person or property requires. To answer the question that -- that Justice Ginsburg, for example, asked petitioner, we don't believe that the statute would mean the same thing if it said injured as opposed to saying injured in person or property.

The in person or property requirement does clarify that it's a broad coverage, but it also limits coverage. There can't be a suit just for nominal damages.

There can't be a suit unless the petitioner -- unless the plaintiff alleges that -- and proves that he has suffered an injury that's compensable in tort law.

JUSTICE KENNEDY: In the hypothetical that I gave, no tort in Georgia for interference with that advantageous business right, what is the property that's been injured in that instance?

MR. ROBERTS: The property is the lost wages that you would have received but for the Federal wrong, the wrong in violation of Federal law. Just as in Mt. Healthy when the at-will employee was fired in violation of the First Amendment, he could recover his lost wages. It's difficult --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Roberts. We'll hear now from you, Mr. Bradley.

MR. PHILLIP A. BRADLEY: Mr. Chief Justice, and may it please the Court: The issue before you today is whether this Court will, for the first time in more than 125 years since the reconstruction era enactments, construe the words, quote, injured in person or property, close quote, to include the termination of at-will employment. There are three bases that I would like to review today as to why the Court should not embark on the path suggested by petitioner and the Government which would result in a significant Federal involvement in the employer-employee relationship traditionally reserved to State law. Number one, the terms to be construed in this case have potentially far-reaching implications both within the statute itself and in the other reconstruction era enactments.

Number two, the interpretation proposed by the petitioner and the Government simply is inaccurate. And number three, the recent pronouncement of the Georgia Court of Appeals on the issue of whether employment at will constitutes property within the meaning of Georgia law.

JUSTICE SOUTER: May I just --

JUSTICE GINSBURG: Mr. Bradley, do I understand from what you just said that, to take the clearest case, the at-will employer says to employee, there's a Federal investigation going on.

Don't you dare testify. If you do, you will be fired at once. That's our case. And you would say that this statute does not provide a remedy. Let's say that the employee testifies and is fired at once.

MR. BRADLEY: This statute does not provide a remedy.

JUSTICE GINSBURG: Does not, yes.

MR. BRADLEY: There are other statutes that might provide a remedy to that same employee.

JUSTICE SCALIA: And I assume you would say this statute also doesn't provide a remedy if he -- if you say to this person not that I will fire you, but I will break your son-in-law's knees. That also wouldn't be covered, would it?

MR. BRADLEY: That's correct.

JUSTICE SOUTER: May I ask you just a question of Georgia tort law? I assume that if I run over an at-will employee with my car or if Justice Scalia does -- that -- (Laughter.)

JUSTICE SCALIA: Gratuitous. Gratuitous.

JUSTICE SOUTER: -- that the at-will -- that the at-will employee can recover damages for -- for lost wages.

MR. BRADLEY: That's correct, and that goes to the heart of where I think the Government confuses the issue in this case, and that is whether you're talking about an element of damages versus a substantive facet of the tort itself.

Certainly if Justice Scalia were to run over my colleague, Mr. Armstrong, and he was to lose time at work, the element of special damages of lost wages would be recoverable.

That doesn't mean that there is property interest in that employment at will, though. That's a different issue as to whether or not I have injured something of property. The injury in that case was the bodily injury of the person who was run over.

JUSTICE SOUTER: Well, but from that, it also necessarily followed that the property interest in continued employment was also -- was also injured.

MR. BRADLEY: It was --

JUSTICE SOUTER: We -- we say -- I mean, you're quite right. In our usual vocabulary we say, well, lost wages is an element of damage or damages, but the reason it's an element of damages is that there is a property interest which in fact has -- has been diminished as a consequence of the personal injury. So, it's -- I -- I don't see how you can avoid the conclusion that there is a property interest recognized in the damages remedy.

MR. BRADLEY: But the damages remedy would not exist but for the property -- I mean -- excuse me -- the personal injury that occurred.

JUSTICE SOUTER: Well, it wouldn't the way the law of any State is -- is structured today, but I -- it's -- it -- there would be a lot of foolishness but no illogic, I suppose, in a State's coming along and saying, we aren't going to have any more recovery for pain and suffering, but we are going to have recovery for economic damages in automobile accident cases. And you would end up with the same kind of recovery that you get as an element of damage in the -- in the case -- in the scheme that we all have now.

MR. BRADLEY: Keeping in mind, though, Justice Souter, that with respect to the element of lost wages in the tort case that we're talking about, you would be looking to the wages that were lost up to the time of trial. In an employment at will --

JUSTICE SOUTER: Well, I presume you would have a -- if you were -- if you were still injured, I presume you would have a recovery for future earnings.

MR. BRADLEY: You may or may not under Georgia tort law. You would have to prove with a sufficient certainty that there would have been an expectation of earnings.

JUSTICE SOUTER: Oh, sure. You would -- you would have to prove the -- the likelihood of continued employment, even though it was at will. But the fact that it was at will would not preclude your proving the likelihood of continued employment.

MR. BRADLEY: That's correct.

JUSTICE SOUTER: Okay.

JUSTICE SCALIA: I presume that if I struck your colleague in -- in the way that has been fancifully hypothesized and -- while he was on his -- on his way to his wedding and -- as a result of which, he missed the wedding, and -- and the young woman in question reconsidered the whole thing and refused to marry him, he might have a cause of action against me, might he not? And would you say that he had a property interest in his wedding?

MR. BRADLEY: I would not say so, Your Honor.

JUSTICE SCALIA: Would Justice Souter, do you think?

JUSTICE STEVENS: May I ask you a question?

JUSTICE STEPHAN GERALD BREYER: It sounds like a valuable --

JUSTICE STEVENS: Assume you -- (Laughter.) Assume you do have a contract right to employment. Say this had happened to a person who had a 3-year contract to employment, and therefore would have had a damage remedy under State law for breach of contract when he was discharged.

Is it your view that the remedy provided by the Federal statute is coextensive what would otherwise be just a State law remedy for either a tort or a breach of contract? Or does the State -- does the Federal law give the plaintiff anything extra?

MR. BRADLEY: In that circumstance where you had a 3-year contract, the Federal remedy would be coextensive with the State law.

JUSTICE STEVENS: Can you give me a case in which the Federal remedy gives you something more than you can get at State law for a victim of this kind of conspiracy?

MR. BRADLEY: Of this kind of conspiracy?

JUSTICE STEVENS: Yes.

MR. BRADLEY: I cannot, Your Honor.

JUSTICE STEVENS: And can you also answer another question for me? Do you think the word property in this statute has the same or a different meaning from the word property in section 7 of the Sherman Act, which was enacted in the 19th century also?

MR. BRADLEY: Your Honor, that was a different enactment at a different period of time, but --

JUSTICE STEVENS: I'm just asking, do you think it has the same or a different meaning?

MR. BRADLEY: It has a similar meaning but not identical. The -- the Reiter v. Sonotone case, which is what the petitioner and the Government rely on, talk about the situation in which there is a deprivation of property to which the person already has an existing right.

JUSTICE STEVENS: I'm not asking you about the Sonotone case. I'm familiar with the case. I'm just asking you if you think the word property has a significantly different meaning in section 7 of the Sherman Act and in this statute, and if so, what's the difference?

MR. BRADLEY: I don't know that there is a significant difference as you've couched it. I also don't think that there is a difference in meaning between the term property, as used in the Fourteenth Amendment, which was enacted at roughly the same time as section 1985 --

JUSTICE STEVENS: Of course, that refers to -- to the constitutional protection against deprivations of property, and this is a statutory remedy for injuries. The word injury is quite different from the word deprivation.

MR. BRADLEY: But the word property is the same in both statutes.

JUSTICE BREYER: But those two things are totally different, aren't they? The Sherman Act and the Fourteenth Amendment protects property where property is defined as those things that people rely upon keeping in their ordinary lives.

Hence, we look to State law and distinguish between probationary teachers and permanent teachers and so forth. Now, here the Sherman Act doesn't do that, does it?

MR. BRADLEY: No, sir.

JUSTICE BREYER: All right. So -- so, here we don't have that. I concede that, I think. But we do have here an expectation of money, don't we? We have that. I mean, I want to go element by element. There's an expectation of money.

MR. BRADLEY: In an employment at will situation --

JUSTICE BREYER: Yes.

MR. BRADLEY: -- there's an expectation of money for -- for services rendered.

JUSTICE BREYER: Correct. There's --

MR. BRADLEY: Nothing in the future.

JUSTICE BREYER: No, no. Well, isn't it -- don't you expect -- I'm not talking legally, I'm talking in human terms -- that an executive of a company expects to be there next month and to render services and to get paid?

MR. BRADLEY: He certainly hopes that that's the case.

JUSTICE BREYER: Well, I would say he expects it. I mean, don't you think in 90 percent -- I'm talking in human terms. I mean, I don't know if you -- all right. You don't want to go that far. You don't have to.

JUSTICE SCALIA: I guess it depends upon whether it's a reasonable expectation that society is prepared to consider as legitimate.

JUSTICE BREYER: Yes, that's --

JUSTICE SCALIA: To quote a whole other line of cases.

JUSTICE BREYER: But anyway, that expectation is protected by State law, isn't it? At least protected against interference by a third person. I mean, there are standing cases where standing is premised on a person's expectation protected by State law that his contract or -- will not be interfered with or a business relationship won't be interfered with or a future contract not entered into yet that possibly will come about as a result of this negotiation. All of those things are protected often by State law, and I assume Georgia is the same, isn't it?

MR. BRADLEY: Under Georgia law, you would have an expectation that a third party would not interfere with your contractual --

JUSTICE BREYER: All right. So, we have a protection, at least against third parties. We have an expectation, and we also have the fact that it is an element in many ordinary tort suits.

So, my question -- an element of damages. So, where you have those three things, why isn't it property for purposes of this statute?

MR. BRADLEY: For a number of reasons, Justice Breyer. Number one, I turn the Court's attention back to the Paul v. Davis case in which the issue was whether or not reputation was property for purposes of a section 1983 deprivation of property action.

And this Court specifically rejected the notion that it was a -- it was property to -- anything that was recognizable injury in an ordinary tort suit was property for purposes of section 1983.

JUSTICE GINSBURG: But that was a constitutional deprivation, and I thought Justice Breyer started out by saying those cases are not what's involved here. We're not talking about deprivation of constitutionally protected property.

MR. BRADLEY: You have to distinguish between constitutionally protected rights, the privileges and immunities of citizenship, which are different than property which is simply protected by procedural due process.

And the -- the Court's rulings are uniform, that to define property for procedural due process purposes, you look outside the Constitution to such places as State law.

JUSTICE SCALIA: Mr. --

MR. BRADLEY: This Court has never held at-will employment to be property in that context.

JUSTICE BREYER: You're right. I --

JUSTICE SCALIA: Mr. Bradley, I think we are less concerned -- or at least I am. I'm -- I'm not sure we have before us the question of what property means. I think what we have before us more precisely is what the phrase injury to person or property means, and -- and what other -- what other statutes use precisely that phrase and have been interpreted in a way favorable to you? I mean, property in isolation is something different, but somehow the phrase injury to person or property means all sorts of injury, whatever injury, whether it's, you know -- that's the argument made by the petitioner here, and I -- and I think there's something to it. Do you have other statutes that use precisely that phrase, injury to person or property?

MR. BRADLEY: There are not many statutes that use that precise phrase, injury to person or property. I would like to take you, if I may, Justice Scalia, to this particular statute and look at some of the scenarios that arise if you construe injury to person or property in this particular context to mean what the petitioner and the Government --

JUSTICE BREYER: Before you do that, could you just clarify the answer to my -- to what I had asked? I take it from your answer to my question that you say the word property here does mean what the Fourteenth Amendment provides, in which case your answer to Justice Stevens is it's totally different.

I mean, I take it that -- I have -- I set one position. The opposite position has the same meaning as the Fourteenth Amendment has, which I take it is your position, and I want to be sure there isn't some fall-back position you have between those two.

I mean, if -- you're right, in my opinion, if the word property means the same as what it means in the Fourteenth Amendment. So -- so, I'm not going to argue that one with you. I just want to be sure that that is your argument, and you don't have some other argument that I'm missing.

MR. BRADLEY: One of our arguments is that when you look at the Fourteenth Amendment use of property as enacted in the reconstruction era, that that has instructive if not the identical meaning as property is used in this context.

JUSTICE SOUTER: If -- on -- on that point, assuming that in fact there -- there may be an overriding objective here to prevent people from being coerced against testifying or retaliated against for testifying by conspiracies of people who are mad about their testifying, why would Congress, in enacting this statute, have wanted to leave a whole classification of injuries which in Justice Breyer's sense in human terms are injuries to the witness from coverage of the statute? Because that seems to be the consequence of your position.

If I -- if I run over the person with my car or if I -- if I get you fired from your at-will job by saying to your employer or two of -- two people get you fired by -- by saying, you know, Bradley is an embezzler, you ought to let him go, under straight Georgia law, there's going to be compensation for the employee. So, there's a -- there's a good common-sense understanding that the employee gets hurt and gets hurt in the pocketbook which is a property kind of hurt. Why would Congress, in -- in wanting to preserve the integrity of the Federal courts by protecting witnesses, want to leave that loophole?

MR. BRADLEY: First of all, Your Honor, I would point out that there are modifying terms in the statute that involve the use of force, intimidation, or threat which suggest that you're talking about something other than an inchoate interest such as property.

Number two, if you focus on what the concept of employment at will was at the time this statute was enacted, you must keep in mind that the -- that the country was coming out of an era where the employment relationship with the people primarily intended to be protected by the statute was slavery, where the employee was the property of the employer. We then shifted into an era that's described by H.G. Wood in the Law of Master & Servant back in 1877 of a pure at-will employment, where the employer had the right to employ, the employee had the right to work, but there was no compulsion between the two.

One was free to go as to the other. That -- that type of relationship is discussed and described in this Court's opinion in Arnett v. Kennedy which discussed the Federal relationship of employer and employee.

And in this era in the late 1800s, it was purely a patronage system where if the employer wanted to keep the employee, that was fine. If the employee wanted to leave, that was fine as well.

JUSTICE SOUTER: Okay, but what's the answer to my question? Assuming that there is this sphere of genuine harm to the witness or potential witness, why would Congress want to have left that sphere totally uncovered by the statute?

MR. BRADLEY: Employment was not considered something that was going to be injured because there was the freedom to move both on the side of the employer and on the side of the employee.

JUSTICE SOUTER: But do you -- do you -- do you dispute the fact that there -- there certainly would be a very potent way to coerce or retaliate by ending or by causing a third party to end at-will employment, and yet that -- that particular subject would be uncovered by the statute? Do you agree to that extent --

MR. BRADLEY: Because the --

JUSTICE SOUTER: -- with the premise of my question?

MR. BRADLEY: Because the employee had the --

JUSTICE SOUTER: Well, yes or no. Do you agree with the premise of my question?

MR. BRADLEY: No, because the employee had the unfettered discretion to move to work wherever he wanted.

JUSTICE SOUTER: So, he doesn't care whether he gets fired or not because he can leave. The fact that he may want to stay and spend his life in a particular job is of no consequence because in fact, if he should change his mind, he can leave and get another job tomorrow. Is -- is that your reasoning?

MR. BRADLEY: Well, whether somebody would prefer to have something and whether they have a property interest in it are two different things.

JUSTICE SCALIA: I -- I thought your point was that there are a lot of things not covered. I -- I could say if you testify, I will not remember you in my will. That doesn't appear to be -- to be covered either.

MR. BRADLEY: That's correct.

JUSTICE STEVENS: But your point is not only are there a lot of things covered, but nothing is covered except where there's already a remedy under State law. That's your real position.

MR. BRADLEY: Your Honor, where there is injury to a recognized property interest --

JUSTICE STEVENS: And it's either a breach of contract or a tort. So, there's always recovery under State law. So, the statute is totally meaningless.

MR. BRADLEY: I don't necessarily agree with that, Your Honor.

JUSTICE SCALIA: Well, the statute didn't trust State law. It gave a Federal cause of action because it didn't trust State courts and State law. And -- and what the statute says is you have a Federal cause of action.

If there's a right under State law, we will enforce it. What they were worried about was the enforcement of State laws against -- against the Ku Klux Klan in particular.

MR. BRADLEY: That's correct, Justice Scalia. With respect to the particular language of this statute, which is reprinted in the appendix to the gray brief, there are -- the terms injury to person or property are used throughout the entirety of section 1985, not simply in 1985(3).

And there are a number of interests other than testimony at court that are protected by section 1985, and if you apply the Government and the petitioner's reasoning in this particular context, you could have such situations as -- as the following. With respect to section 1985(1), if --

CHIEF JUSTICE REHNQUIST: Where is this?

MR. BRADLEY: It's in the appendix to the gray brief.

CHIEF JUSTICE REHNQUIST: Okay.

MR. BRADLEY: It's the last couple of pages. Under section 1985(1), subpart 1, there's a prohibition to prohibit by force --

CHIEF JUSTICE REHNQUIST: What page are you reading from?

MR. BRADLEY: It's 1a, Mr. Chief Justice.

CHIEF JUSTICE REHNQUIST: Thank you.

MR. BRADLEY: Prohibition by force, intimidation, or threat from any person accepting or holding office, trust, or place of confidence in a position with the United States. Using my colleague, Mr. Armstrong, as the example again, let's assume that Mr. Armstrong came to me and said that he wanted to take a position in a -- with a Federal commission somewhere, not a full-time job, but a particular Federal appointment.

JUSTICE STEVENS: You know, the language you quote and it's true of all the subsections -- emphasized the fact that in each of these cases, there's a Federal wrong. So, the statute was not merely intended to provide a Federal remedy for pre-existing State wrongs, was it?

MR. BRADLEY: Certainly for cause of action under this particular statute, setting aside the equal protection issues, there must be a Federal wrong. But let's assume Mr. Armstrong comes to me and says, I want to take this Federal position and a client for whom Mr. Armstrong works significantly says, wait a minute, we can't have Mr. Armstrong leaving to go work for this Federal commission. That's not going to work out for us. You need to get rid of him if that's going to happen. And we fire him. Under the Government and the petitioner's view of this statute, that creates a Federal remedy because he's now been injured in his person or property by the termination of his employment. If you look at the section in 1985(3) on page 2a where it talks about advocacy in voting, if Mr. Armstrong were to decide to become the campaign manager for a particular candidate and that candidate was taking a position that was strongly adverse to one of the firm's clients, then we -- the client comes to us and says, you've got to get rid of Mr. Armstrong. He's hurting us. And we fire Mr. Armstrong. Under the Government and the petitioner's reading of this statute,

Mr. Armstrong has a cause of action. What that leaves you with is under their interpretation of this statute, Mr. Armstrong as a private employee has greater rights vis-a-vis his employer than a public employee would, and that is stretching the scope of this statute way beyond the scope of what was intended.

If you take the particular provision we're dealing with here with respect to a Federal investigation of an employer, not uncommon, for example, in the health care industry, particularly in this case, an employer comes under investigation, multitudes of its employees are called before a grand jury.

Because of the investigation, there's a downturn in business, and the employer then lays off a number of employees. Every one of those employees who's laid off now has a prima facie case of a violation of this statute.

JUSTICE SCALIA: Of course, you agree that -- you would agree they -- they would have a prima facie case if they had term contracts. Right?

MR. BRADLEY: Correct.

JUSTICE SCALIA: So, that -- that horrible can -- can happen in -- in another context anyway.

MR. BRADLEY: But only if they have term contracts, not employees at will. Therefore, to interpret this statute in the manner proposed by petitioner and Government --

JUSTICE STEVENS: And of course, the other side of the coin too is that under your reading of the statute, they could just put a bulletin out and say anybody who goes to testify before the grand jury truthfully gets -- gets canned.

MR. BRADLEY: No, sir. There are statutes already on the books that address that particular situation, both from the Government's standpoint of the interest of protecting the Federal system and also from the employee's standpoint. There are obstruction statutes that would prohibit the employer from --

JUSTICE GINSBURG: We talked about criminal statutes.

JUSTICE SCALIA: The criminal statutes.

JUSTICE GINSBURG: What civil remedy is there for someone who -- take the case that you were candid to say, yes, that's what I'm talking about. You testify before that grand jury, you're fired.

MR. BRADLEY: 18 U.S.C., section 1514 --

JUSTICE STEVENS: It's a criminal statute.

MR. BRADLEY: -- provides for a civil action to restrain the harassment of a victim or a witness. That would be one civil remedy. The False Claims Act, particularly again in the health care arena, would be --

JUSTICE GINSBURG: Go a little slower over that. What is the remedy? Whose remedy is it?

MR. BRADLEY: It's the Government's remedy to restrain harassment of a victim or a witness.

JUSTICE GINSBURG: Yes, injunctive relief for the Government. What remedy is there for a Mr. Haddle?

MR. BRADLEY: Mr. -- Mr. Haddle could have asserted a claim for witness retaliation under the False Claims Act, 37 U.S.C. -- excuse me -- 30 U.S.C. 3730. He chose not to.

JUSTICE GINSBURG: And what does that provide?

MR. BRADLEY: That provides that for any person who participates in a cause of action filed or to be filed -- and under the Eleventh Circuit law, to be filed means there is a reasonable possibility of it being filed -- and their employment is terminated, that they have a cause of action against their employer.

JUSTICE SOUTER: That -- that covers witnesses?

MR. BRADLEY: Yes, explicitly covers witnesses. It does not have to be a person who actually filed the false claims action. It is any witness who participates in that False Claims Act investigation.

So, there is a protection under Federal law for witnesses such as Mr. Haddle. He simply elected not to pursue that remedy, but instead pursue this Civil Rights Act remedy.

JUSTICE GINSBURG: Was there some impediment? I know there was another person who was mentioned in this picture, somebody named Neal.

MR. BRADLEY: O'Neal.

JUSTICE GINSBURG: O'Neal? Yes.

MR. BRADLEY: Mr. O'Neal did assert a False Claims Act retaliation action against his employer.

JUSTICE GINSBURG: And that -- and that failed I think.

MR. BRADLEY: No. Actually he received a verdict on that particular claim, not against any party to this case, but against another company.

JUSTICE SOUTER: Is the difference attorney's fees?

MR. BRADLEY: Is?

JUSTICE SOUTER: Can he get attorney's fees here and he can't get it under the -- under the other act?

MR. BRADLEY: He can get it under both of them.

JUSTICE SOUTER: Under both?

MR. BRADLEY: Mr. Haddle's articulated reason for not proceeding with the False Claims Act action in his brief is that the particular company that was his employer was in bankruptcy, but that doesn't mean that that eliminates his right.

And in fact, that particular company in bankruptcy ended up generating far more dollars than anybody would have believed. He simply elected not to pursue the remedy that was available to him and to try to concoct a remedy out of this old civil rights statute which has never been used to protect employment at will. The recent case that we filed with our supplemental brief is Robbins v. Federal Credit Union, and I do think it's an important case for those who may look and say, we are looking to State law to determine whether or not a property interest is involved.

That case, which was recently decided, you had an employee who was an employee of a Federal credit union, initially took the position that makes me a Federal employee and therefore I am protected by various statutes, but asserted a cause of action for wrongful termination and for tortious interference under Georgia law. The Georgia Court of Appeals looked at that and said, we have an exception creating a property interest for public employees when they can be fired only with cause. However, with respect to private employees, we are not going to make any such exception.

We're not going to imply a with-cause requirement, and therefore, for private employees, there simply is no property interest in your employment at will, and there would not be a cause of action under Georgia law for the termination of at-will employment. If there are no further questions, thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Bradley. Mr. Stebbins, you have 2 minutes remaining.

MR. STEBBINS: There was a substantial impediment to Mr. Haddle bringing an action under the False Claims Act, and it was that the company was in bankruptcy. It was not a financial consideration, however. I was there and made the decision.

The fact is that officially Mr. Haddle was terminated by the United States trustee in bankruptcy. This was a result of a conspiracy among these respondents, none of whom were the employer, to feed false information to the trustee in bankruptcy who was duped and tricked into dismissing Mr. Haddle.

Now, I couldn't sue the trustee in bankruptcy. He's a -- a well-respected member of the bar in Augusta, and my investigation revealed that there was -- he had not done anything wrong. He was completely innocent. So, Mr. Haddle had no way to utilize the False Claims Act in order to remedy this situation.

Mr. O'Neal did and we recovered a judgment, a verdict which is on appeal. Mr. Haddle did not have that available. And I would observe that the False Claims Act is a relatively narrow provision and certainly would not provide a suitable alternate remedy. .

To say that witnesses who have an at-will employment and are fired because they have testified in Federal court have an adequate remedy, civil remedy, under any statute that I'm aware of is simply not the case. I canvassed the statutes just as widely as I possibly could to find somebody to remedy this injury to Mr. Haddle, and there was no way to do it. This brings me to the second point I wanted to make which is that none of the defendants in this case are Mr. Haddle's employer, and under Georgia law, Mr. Haddle had a valuable property right as to everyone other than his employer which is protected by this act as well as by Georgia law. And I would refer in response to the question that Justice Souter and Justice Rehnquist gave -- asked the Government as to whether it makes a difference if only the employer were the defendant. That's not my case, but I would refer to the last words of section 1985 which provide that when there is a proscribed conspiracy, the injured party shall have an action against any one or more of the conspirators. Now, I couldn't find anything in the legislative history, but it almost appears to me that this language was put here to abrogate any immunity that the employer might have had at State law. That appears to be one of the reasons.

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