Cases by Issue - Civil Rights Acts

Hill v. McDonough - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Hill v. McDonough

Media File:

05-8794_20060426-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of D. Todd Doss

Chief Justice Roberts: We'll hear argument first this morning in Hill v. McDonough.

Mr. Doss.

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

In Nelson v. Campbell, this Court held that a challenge to procedures to execute an inmate may be brought in a section 1983 action unless the challenge would necessarily prevent the State from carrying out its execution.

Mr. Hill does not challenge the State's right to execute him by lethal injection, but instead, only challenges the particular protocol the Florida Department of Corrections in their discretion has adopted.

Mr. Hill's claim, thus, does not necessarily prevent his execution, and his claim falls squarely within the scope of Nelson, as announced by this Court.

The current claim... the only focus of that claim is the discretionary choice of the particular injection procedure that has been chosen by the Florida Department of Corrections.

Therefore, it does not violate Nelson because the relief sought would not necessarily prevent the State of Florida from carrying out its execution.

The State could still carry out the execution through a more humane means by offering the particular protocol that... that they have adopted.

Justice Scalia: Which you decline to specify.

Right?

Mr. Doss: I'm sorry, Justice.

I didn't hear the first part of your question.

Justice Scalia: By a means which you decline to specify, so that if they come up with some other means, you could... you could object to that as well I assume.

Mr. Doss: Well, there... in... in answer to your question, there's never been a... a requirement that a section 1983 plaintiff must plead a constitutionally acceptable alternative.

Justice Scalia: No, I understand that.

But I'm just... I'm just pointing out what... what becomes available to you if we... if we give you the relief you request.

Mr. Doss: Well, this--

Justice Scalia: You... we... we say this... this procedure is no good.

The State comes up with another procedure, and you challenge that one.

Right?

And... and another few years go by.

Mr. Doss: --I... I respectfully disagree with the fact that it would just leave open a total series of challenges.

Justice Scalia: Why?

Mr. Doss: The State... the State would have the opportunity to come in and propose a acceptable alternative.

Just like any other finding of unconstitutionality, once they propose that alternative, we can challenge that if something is... is not acceptable, or accept the... the proposed alternative and the court enters a... a consent decree.

Justice Scalia: You... you think that the... the way you would proceed in trial court is the trial court finds that this is no good, and... and then the trial court proposes an alternative, or... or invites the State to propose to the trial court an alternative, and then asks whether you agree to that alternative.

And if you don't, the trial court makes the decision whether the alternative is... is constitutional or not.

Mr. Doss: This... that's--

Justice Scalia: That's not bad.

Mr. Doss: --that's entirely correct, and I think we've seen that in... in a couple of the cases that are out there.

Mr. Brown's case out of North Carolina followed that track.

Mr. Morales' case somewhat followed that track, although through no fault of Mr. Morales, California wasn't able to carry through on the alternative that they chose because the anesthesiologists decided to not participate.

But it... but it just proceeded to basically an up or down ruling upon the proposed alternatives.

So I... I would disagree that there's a seriatim effect of... of just perpetual litigation over whether the alternatives--

Justice Ginsburg: You're envisioning that one case will take care of it.

That is, if the Court rules against you, that's the end of it.

You can't come back with another inadequacy because you'd be barred by claim preclusion.

On the other hand, if the State comes up with an acceptable alternative, you agree to it.

That's one thing.

The Court holds... but there wouldn't be a second episode I think.

One way or another this proceeding would end it.

Mr. Doss: --The only... the only way I would foresee a second episode is if they... if they proposed a second unconstitutional procedure.

Chief Justice Roberts: Well, that probably will be what will be alleged.

Of course, you don't know when... at this proceeding, we have no idea, if we rule in your favor, what alternative the State is going to provide, and I am willing to bet whatever that alternative is that it will be subject to a challenge under a new 1983 suit.

There would be no claim preclusion if you didn't know what the alternative was at this point.

Right?

Mr. Doss: That's correct, although it would proceed to basically an up or down ruling, just as it did in... in the Brown case and the... the Morales case.

Justice Scalia: In this very case, you're saying the court would... would rule on the State's proposed alternative.

Right?

Mr. Doss: That's correct.

Justice Scalia: But if you disagreed with that, you could appeal it up again.

Right?

You can go to the court of appeals--

Mr. Doss: That's correct.

Justice Scalia: --and then seek cert up here.

Right?

Mr. Doss: That... that would be correct.

Justice Souter: May... just as a... maybe this is technical, but what did you ask for for relief?

Did you ask for relief that the State be enjoined from using this method, or that the State be enjoined from executing him until an acceptable method had been found?

Because in the first case, the door theoretically is open to seriatim 1983 actions, and in the second case, presumably the issue would be resolved in this one case, as you suggest.

So which did you ask for?

Injunction against this or injunction until an acceptable alternative came up?

Mr. Doss: We asked for... for two... two injunctions, one a preliminary injunction allowing the... the Court to be able to consider the case, and then the way the prayer for relief was worded is, is that we asked for a permanent injunction barring the State of Florida from executing Mr. Hill as they currently intend.

Justice Souter: Well, if that's... if that's the relief you get, then the door would be open to successive different 1983 actions every time the State comes up with... with a new protocol.

Whereas, if what the... if... if the trial court... if you succeed at this stage, if we say, yes, you're... you're properly in court and you go ahead and litigate it, if the trial court, in fact, awards not the injunction that you asked for but the injunction saying do not execute this person until a constitutional protocol has been proposed and accepted by the court, then everything will get resolved in this one action, as you suggest.

So would... would you consent to... as it were, to an amendment of your prayer for relief so that the injunction will be in such a form that everything can get resolved in this one case?

Mr. Doss: In... in the sense of... of the State of Florida proposing a... a... hopefully a constitutional way of executing--

Justice Souter: Yes.

Mr. Doss: --Mr. Hill, where it wouldn't give rise to another 1983 action?

Justice Souter: Right.

Mr. Doss: Yes.

Justice Souter: You... you would agree to that?

Mr. Doss: Yes.

Justice Kennedy: Well, do you have confidence--

Justice Ginsburg: You said--

Justice Kennedy: --do you have confidence that Florida can do that?

Mr. Doss: Based upon the litigation that we've seen around the country, yes, I think there are acceptable ways to... to do it out there.

Whether they would choose that way or not, I don't know because the way Florida's system is designed is... is that it's not statutorily mandated as to... as to a particular protocol that's utilized.

It's left totally with the Secretary of the Florida Department of Corrections.

It's not subject to any rulemaking or any administrative procedures as far as promulgating those rules.

It's... it's just within the Secretary's discretion.

Justice Alito: Do you--

Justice Kennedy: Well, one... one of the circumstances that... that was raised by the questioning is this.

States generally have the defense of laches.

They... they require the petition to be filed within a reasonable time.

With changes in pharmacology, the laches defense will not usually be available.

And under the proposal that the... the State resolves it once and for all, I suppose the State couldn't adopt a new protocol that it thought was better, more humane, without risking more litigation.

So it... it really is a disincentive for the States to try to make the procedure less painful for the... for the accused.

Mr. Doss: Well, within... within the Eighth Amendment jurisprudence of... of the evolution of... of Eighth Amendment jurisprudence, we've seen hanging go by the wayside.

We've effectively seen electrocution go by the wayside.

As we advance as a society and as we advance within our knowledge of what's going on--

Justice Kennedy: Precisely.

And that's going to be true with every new protocol.

Mr. Doss: --That's an... that's an evolution over time.

It's--

Justice Ginsburg: --You said there were other States.

You mentioned California.

There was a proposal by the State.

It couldn't be executed.

What was the experience... you mentioned a couple of other cases where the particular combination of drugs was successfully challenged, but then the State did what?

Mr. Doss: --In Mr. Brown's case in North Carolina, my understanding was... is that the State had went and purchased a device to make sure that he was actually unconscious during the procedure and wasn't subject to the excruciating pain that's been detailed within... within the briefs.

That actually was challenged because Mr. Brown's attorneys didn't think that the... the people that were monitoring the machine were properly trained.

The court ruled against them, and as we know, Mr. Brown was... was executed.

It didn't result in the series of challenges as... as many are obviously concerned about.

Justice Alito: --Do you agree that that was not a... that method of execution is not a violation of the Eighth Amendment?

Mr. Doss: As far as using the machinery that was used in Brown?

Justice Alito: Yes.

Mr. Doss: I... I don't know enough about... about that machine to... to accurately comment on... on that.

I know that the challenges that were brought in Brown wasn't necessarily regarding the machine itself, but it was the qualifications of... of the people monitoring the machine and whether they had the authority and ability to intervene in the execution itself.

And I believe that that was the challenge that was ruled upon by the court in Mr. Brown's case before he was executed.

Justice Alito: Do you know of any method that has been used... used throughout the country that is not a violation of the Eighth Amendment?

Mr. Doss: As far as... as far as this particular protocol, this particular protocol that's... that's utilized and that we're... we're challenging is unconstitutional because of the excruciating pain.

If the... if the sedative works, and there's no... and... and the person is not in... not in wanton and gratuitous type of... of pain, as... as this Court's precedents hold, that would be constitutional.

It's the... it's the evidence that's coming forward that this is not what's happening that gives rise to our claim that... that we would like to be able to litigate in a 1983 action so that we can get those facts before the court.

Justice Scalia: Is it only excruciating pain that the Eighth Amendment prohibits or is it any pain?

Does the Eighth Amendment require painless execution?

Mr. Doss: No, absolutely not.

It's... it's that it's... it's that it's wanton and... and gratuitous pain.

Justice Scalia: Well, when you say wanton and gratuitous, you're... you're saying any pain that can be eliminated must be eliminated.

Otherwise, it's gratuitous I assume.

Mr. Doss: It's... it's gratuitous when it's beyond what's... what's necessary, and whenever the--

Justice Scalia: Yes.

So if there's any way of... of execution that is totally painless, that... that must be pursued.

Mr. Doss: --If there were a way to do that, I... I would agree with that.

Justice Scalia: Where... where do you derive that from?

I mean, gee, you know, that... that was certainly never the principle evident in... in executions in the past.

Hanging was... was not a... you know, a quick and easy way to go.

You would have thought they would have required a firing squad instead or something like that.

I... I just don't know where you're deriving this principle that there cannot be any pain associated with the execution.

Mr. Doss: I--

Justice Scalia: I can understand excruciating pain, but... but you... you want to press it to the point where there can't be any pain associated.

Any pain that can be eliminated must be eliminated.

That seems to me a very extreme proposition.

Mr. Doss: --The... the... what... what we've detailed here in our complaint is an extreme and tortuous method of... of death.

At this point--

Justice Scalia: No.

I understand what you're challenging here.

But what... what alternative would be acceptable to you?

Only one... only one that... that, to the maximum extent possible, eliminates all pain.

Isn't that right?

Mr. Doss: --Well, when you look at the... when you look at... at Morales and Brown, both of those that... that were proposed were eliminating... for instance, one of the options within Mr. Morales' case was that only the sodium thiopental be used eliminating the pancuronium bromide and the potassium chloride.

The State of California, for... for whatever reason, did not... did not choose that and went, instead, and tried to use the same protocol and bring in anesthesiologists that were properly trained and qualified to determine whether or not Mr. Morales was, in fact, anesthetized to... to a degree where he would not feel that pain.

That... that is... that is an example of a proper procedure being... being come up with... or being dealt with.

As well, Mr. Brown... and... and thing is, is that for... there's... there's never been a requirement for... for us to plead this.

The reason being is... is this Court's case law within... for example, Lewis v. Casey shows the... the strong deference that this Court gives to States in... in coming up with the prison procedures.

That's not an execution case, but here the Florida courts... not Florida courts, but the Florida officials within the Department of Corrections... they know their facilities.

They know what's capable of... of being done there or not.

Chief Justice Roberts: Would it be... if... if in the future, if States specify the method of execution in the sentence, then you would not have a 1983 action.

Is that correct?

Because you would then be challenging the sentence, and it would have to be brought under habeas.

Mr. Doss: If the particular protocol was alleged in the sentence, yes, it would be ripe at that point in time as opposed to Florida's system where it's within... it's within the discretion of the Department of Corrections to change it at any time.

We've seen that happen whenever the electric chair litigation was going on, that they changed these procedures over time, adding and detracting different things.

Justice Scalia: Well, but... but you... you... their procedure was set forth in a... in a notice, a regulation or something.

You... you had notice of what procedure they intended to use several years ago, didn't you?

Mr. Doss: The only--

Justice Scalia: Now, you're saying they could change it in the future, but sure, of course.

Any... any agency can change its... its regulations.

But didn't you know that this is the procedure they intended to use several years ago?

Mr. Doss: --No, Your Honor.

It was... what they relied upon was what was... what was detailed in Sims, which was 6 years ago.

But with the... with the discretion that Florida Department of Corrections has and that they've exhibited in the past, that they've utilized that discretion whenever we were having the electric chair litigation going on, we can't presume that.

The added problem is--

Justice Scalia: So you have to wait to... you have to wait to the eve of execution before... before you think you have a... a ripe claim under... under habeas.

Mr. Doss: --Under... under Florida's scheme, yes, we have to wait because they have the complete discretion.

We have no access to be able to get the public records.

In fact, we've been denied throughout.

Justice Scalia: Congress has the complete discretion to change the statutes it's enacted, but that doesn't mean that you can't change... you can't challenge a statute now because it might be changed before... before the action you want to take occurs.

You can challenge it now.

And it seems to me it's the same thing with the method of execution prescribed by... by an administrative agency in... in a State.

Mr. Doss: If Congress has the situation set up that Florida does not engage in... in rulemaking.

They don't go through an orderly administrative process, taking public input and having people come and participate in that.

It's totally--

Justice Ginsburg: Well, what did they have?

There was the Sims case.

No... no... certainly not in the legislation.

There's no rule that emerges.

But you did know that there was a lethal injection procedure that had been prescribed for another prisoner, and yet you didn't challenge the lethal injection at that time.

Why did you wait until so late?

Mr. Doss: --Because... because that claim was not ripe at that time, because we didn't know what would be utilized whenever it came to Mr. Hill being executed.

Our knowledge as to how Florida Department of Corrections utilizes that discretion has been that they actually used that discretion in the past.

We have not been able to get any records post Sims regarding their procedures, regarding the protocol--

Justice Ginsburg: Have they, in fact, changed the procedure for the lethal injection?

Mr. Doss: --I don't have any public records to... to be able to say one way or another.

We were denied all public records whenever we were proceeding in State court.

Justice Souter: When did you ask for the public... when did you ask for the... a... a statement of the protocol that would be used in your case?

Mr. Doss: It was December the 8th is whenever it began, and then pursuant to the court's... the trial court's order that was entered in that case, the State's response came on December 19th.

The court ruled on December 23rd.

The rehearing was denied on the 30th, and we filed our briefs in the Florida Supreme Court on January 3rd.

Justice Scalia: I don't understand.

How did you get into the court if you didn't know what protocol they were going to use?

Mr. Doss: Once--

Justice Scalia: You say you didn't know it until the 19th when your case was already in the court.

What... what were you challenging?

Mr. Doss: --What we... what had happened is... is whenever the... whenever the death warrant was signed on November 29th, that put into play Florida Rule of Criminal Procedure 3.852(h)(3) which then entitles us to more records that we are not entitled to before a warrant is signed.

At... at that point, we filed our records request, and the trial court, indeed, put forth their order as to when everybody was to respond and have various pleadings in.

We--

Justice Scalia: Excuse me.

How did the trial court get into it?

Does the records request go through... through a trial court?

Mr. Doss: --Yes.

Justice Scalia: What... what is the... the action that you're bringing?

An action for records request?

Mr. Doss: Yes.

It's under Florida Rule of Criminal Procedure.

It's geared specifically to death sentenced individuals as opposed to being... we don't have available what's under Florida statute.

Chapter 119 is not available to a death sentenced inmate.

So we must proceed through the 3.852 procedures, and that was not activated until the point in time that the warrant was actually signed.

We filed other pleadings in the court that were denied regarding mental retardation, regarding a Roper claim, and various other... other claims.

Ultimately, we also filed in regards to the public records claim and us being denied the public records and the ability to assess the protocol.

Florida--

Justice Souter: May... may I ask you to clarify one thing?

I take it, at this point, there isn't any question about the... the amounts and ingredients that will be used in... if... if the execution goes forward.

But my recollection is that you said that your... your request for a specification of this formula or protocol was denied by Florida.

Did you ever, as a result of your records request or otherwise, get a statement directly from Florida to you that the following proportions of chemicals will be used?

Mr. Doss: --Within the... within the public records proceeding, it was referenced that it would be the same as... as Sims.

Florida Department of Corrections--

Justice Souter: But until you went into that proceeding, I take it, you had asked Florida to specify and Florida said, no, it would not do so?

Mr. Doss: --We had asked for the records and had requested the records that would specify and any written procedures and protocol, as well as the records from... from prior executions.

They fought that and prevailed in the trial court.

And in the Florida Supreme Court, we had also sought records from the medical examiner that does the autopsies on executed individuals, as well as various other officials we thought might have information.

We were... we were given nothing and they objected to us receiving any records whatsoever.

Justice Souter: Did... did you ever say to... to any Florida official, please tell me what the chemicals are and the amounts that will be used--

Mr. Doss: We--

Justice Souter: --not asking for records, just asking for a statement about what they were going to do?

Mr. Doss: --It... it came forward at the... at the hearing regarding the public records that it was going to be the Sims... that it was going to be the Sims procedure.

Justice Souter: But I guess before you went into court with a public records action, did you ever say to somebody, tell us what you're going to do?

Mr. Doss: By our public records request, yes.

If... if Your Honor is asking if I spoke to the--

Justice Souter: What... what I'm getting at is--

Mr. Doss: --Department of Corrections, no.

Justice Souter: --there... there are ways to find out.

One would be to ask.

One would be to chop the door down with an ax to find out if there's a statement hidden inside.

Did you ever try the easy way and simply say to them, will you specify for us what you're going to do and how you're going to do this?

Mr. Doss: That was essentially done at the public records hearing on December 19th whenever they came in and said it was... that it was Sims.

Justice Souter: Okay.

Mr. Doss: The... the thing is, is--

Chief Justice Roberts: Well, you... you alleged in your complaint... I'm looking at footnote 3... that you assumed they were going to follow the same protocol as in Sims.

Mr. Doss: --Because of their... because of... of the representations that were made during the public records litigation.

That was based upon... that was what we based our assumption on, knowing that they still had the ability to change it all the way up until the date that Mr. Hill was scheduled to be executed.

Justice Scalia: Well, they still do, but you're here.

I mean, they... they still have the opportunity to change it, but you're here challenging it even though it is still changeable.

Right?

Mr. Doss: They... yes.

Because of the way Florida operates with the total discretion and... and the refusal to give any public records regarding this, yes, we are in the dark regarding it.

They could... they could alleviate that situation by doing an administrative rulemaking process, that that rule is then in place, and with that rule in place, it would be ripe at that point because at that point they're constrained to follow the rule as opposed to having the liberty to... to change the procedures as they... as they deem fit at the last minute.

Justice Stevens: Can I just clarify one thing for myself?

Do I correctly understand that the Federal district court... I'm not talking about the State court... did not rule on the merits of your claim, but merely held that 1983 is not the proper method of pursuing the claim?

Mr. Doss: That's correct.

Justice Stevens: So that there hasn't been a decision by a Federal judge on whether or not there's merit to your case.

Mr. Doss: That is correct.

Justice Stevens: It's just a question of which... whether you do it by way of habeas corpus or by 1983.

Mr. Doss: That is... that is correct, and it was recharacterized as... as a successive habeas petition rather than a 1983 action.

Justice Stevens: And I suppose it's entirely possible that if the judge then decided it is really... if we said it should have been a 1983 action, the judge could say, well, okay, even under 1983 the State has the defense of laches and you still lose.

I mean, you... we don't know what's going to happen if we find out... if we agree with what your argument in this Court is.

Is that right?

Mr. Doss: It would go back for... for an analysis as to the equities of the situation, and... and that being an intensely fact bound procedure, the district court is actually in... in a better position to go ahead and... and be able to make that analysis there at the district court level, a Gomez analysis as to the equities that are involved within the situation.

So as... as we sit here today, there has not been any ruling on the merits of... of this, and there hasn't been any evidence produced in... in any court through testimony whatsoever regarding the issues of the protocol and... and things of... of that nature that we've been discussing here this morning.

And I think that... that whenever... whenever you... you look at... actually if the Court doesn't have any more questions, I'm going to reserve the balance of my time.

Argument of Carolyn M. Snurkowski

Chief Justice Roberts: Thank you, counsel.

Ms. Snurkowski, we'll hear now from you.

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

The State is here today to suggest that the method that... to challenge these claims is by habeas corpus, and that the Federal district court, as well as the Eleventh Circuit, was correct in finding that the district court had correctly found it had no jurisdiction because, in fact, it was a functional equivalent of the habeas corpus.

But to... to address some of the issues that were currenntly brought before the Court today with regard to the ability of the defendant to come forward and discern what exactly was the method by which Florida was intending to execute him, the record bears out that, in fact, the Sims case was in the public domain and, in fact, is the method by which Florida does execute individuals.

There was--

Justice Ginsburg: But there's no statute and there's no regulation that requires Florida to do that.

Mr. Snurkowski: --These... there is no specific statute.

The statute itself merely says that lethal injection is the method by which Florida is to execute individuals.

The Department of Corrections, through rulemaking process internally, provides protocols for the execution day and other protocols with regard to the execution team performing its function on that given day and... and hours leading up to that.

And that has not been changed nor modified, nor has it been challenged--

Justice Ginsburg: But there is no statute, no regulation.

That means the executive can do what it will.

There's nothing that binds them to the way it was done in Sims' case.

Mr. Snurkowski: --That is correct, to the extent that there's no statutory provision or regulatory rule because, in fact, under Florida... the Florida legislature has exempted rulemaking of the Department of Corrections with regard to executions.

Justice Ginsburg: And I suppose that's... that's the complaint.

If there were a procedure in place, we could address it.

If Florida reserves to itself the ability to change at any time, well, that's... we want to be told what it will be in our particular case so we have a target that we can aim at.

Mr. Snurkowski: And I understand that, but the State would contend that based on the fact that there have 16 executions since the time that Sims has occurred and all those executions have been performed exactly as the manner in which Sims has occurred, and that there has not been any challenge to a deviance from that, and in fact, the Florida Supreme Court has ratified again in this case, when Mr. Hill brought his Eighth Amendment claim, that Sims was the method of execution in Florida, I think we have a very reasoned determination that, in fact, the method of execution, as it has been proposed in Sims, is currently the method of execution that we utilize.

Justice Breyer: But what he... I... I take it the ripeness issue is... he delayed in bringing it because he wasn't certain what you'd do.

And... and one of the reasons, I think, would be that it's only recently there was an article in the Lancet--

Mr. Snurkowski: Correct.

Justice Breyer: --that says the... in the opinion of the doctors who wrote it, a significant number of executed people are conscious when they die, and that's painful.

And then it's been suggested there are ways around that.

Just give them more sodium pentothal or have a doctor or somebody there to make certain the individual is unconscious at the time that the death causing drugs take effect.

All right.

Now, that doesn't seem too difficult.

Maybe it's difficult, but it doesn't seem too difficult.

So why can't they think, you know, Florida... they can read there too.

They have people who read these articles, and indeed, maybe they'll just do it.

They don't have any real interest in... in causing suffering.

Why don't they just do it?

And so he thinks, up until the last minute, that maybe Florida will just do it, and lo and behold, when the death warrant is actually executed, it now begins to appear that they won't.

And therefore, at that time, he brings the case.

Now, I've spun out a story which seems probable, that if it's true, it would be very understandable why this wasn't ripe before the execution warrant is issued and thereafter it is.

Now, what is your reply on the ripeness question?

Mr. Snurkowski: Well, my reply on the ripeness question is, first of all, that I don't believe that your scenario... while I'll accept your scenario as your scenario, it is not accurate with regard to what occurred in Florida.

But apart from that, there has not been a change and nor has there been any allegations by the defendant.

He certainly, as you have indicated, could have read and, in fact, did read the Lancet article and made no statements with regard to his allegations--

Justice Breyer: --my... my little story was inaccurate as to Florida or accurate as to Florida.

Mr. Snurkowski: --I'm sorry?

Justice Breyer: Is the kind of thing I was explaining why it would be ripe I think... is that accurate enough for the purposes of ripeness as to what happened in Florida?

Mr. Snurkowski: No.

And my answer, I would suggest to you, is no--

Justice Breyer: No.

Mr. Snurkowski: --because I think it's part of the pleadings.

I mean, he certainly had the wherewithal.

If he felt that there was another manner by which it could have been changed or that the Department of Corrections, in this particular instance, was suddenly going to... now aware of the Lancet article, would change its method, he has not made any allegations of that, nor has he asked.

And that was one of the questions that was postulated to him, the fact that in... that he never asked.

Justice Ginsburg: Would he have to come up--

Mr. Snurkowski: Excuse me.

Justice Ginsburg: --with, as you suggest, an alternative that would be acceptable?

Suppose there had been a hearing and it was proved more probable than not that in some cases... not in all, but in some cases... use of this injection would cause excruciating pain.

Would the petitioner who is objecting being exposed to that have to come up with an alternative in order to avoid the risk of excruciating pain?

Mr. Snurkowski: Well, it seems to me, based on this Court's decision in Nelson, that that was the focal point of why relief was granted in the fashion it was, that it was a proper issue to rely in 1983 because, in fact, there might be a... he had proposed a mechanism that might be alternative mechanism that was accepted by the government.

In this instance, it's... the record is silent and... which goes--

Justice Ginsburg: Well, my question to you is... I take it you're answering yes, that if they prove that some people will be subject to excruciating pain, that's not good enough unless the petitioner proposes an alternative, that it's all right for the State to expose someone to the risk of what has... what has been determined to be the risk of excruciating pain as long as the petitioner himself doesn't come up with an alternative.

Mr. Snurkowski: --Well, I think the answer is twofold.

First of all, the fact that the articles out there reflect that there's a potential that that could happen, there's not been evidence that it has occurred or has happened, which has been necessarily what is the precursor to when there has been changes in the method of execution because there has been a history where, in fact, a botched execution has occurred no matter what the method may have been.

The second part is that there has not been a... a specific showing in this particular case, nor an allegation for that matter, that any kind of event in this particular case would, in fact, cause excruciating or any kind of pain--

Justice Ginsburg: Well, because there's been no hearing.

We've never gotten past is this... can you open the door through 1983, and I... I still don't understand what your answer is to my question.

Now, I'm supposing that we do have the 1983 hearing, and the judge says, yes, I agree with the petitioner's experts.

In some cases there will be excruciating pain.

Then you say, but, Judge, they haven't come up with an alternative.

Mr. Snurkowski: --Correct.

Justice Ginsburg: And the judge says, you're both right.

Some people have excruciating pain, but there's been no alternative suggested.

Bottom line of that particular case would be?

Mr. Snurkowski: That, in fact, I think that he has to make some colorable showing of an alternative that would be acceptable to him based on the procedures because, again, the second prong of that seems to me--

Justice Ginsburg: So the answer is yes.

Mr. Snurkowski: --Yes, Your Honor.

I'm sorry.

Justice Ginsburg: The court, having found that some people will be subject to excruciating pain, still no Eighth Amendment violation because the petitioner hasn't come up with an alternative.

Mr. Snurkowski: Yes.

Justice Souter: What is the source of his obligation to do this?

I mean, why does he have an obligation under the Eighth Amendment or under any other ground to tell the State how to execute people?

Mr. Snurkowski: Well, I think the Court in its Nelson opinion suggested that that was a means--

Justice Souter: That... that was a fact in Nelson, but my question to you is if... if we were to agree with you and say that that, in fact, is a... is an element of a 1983 action here, what would be the source of... of the... the conclusion that... that he has to propose a less painful alternative?

Mr. Snurkowski: --I guess part of the source would be the fact that in overcoming the qualifications... while maybe his pleading may be simple, the notion is that he has to overcome those things that may have happened in the past.

For example, in this particular instance, whether in fact there's been any violation as to a... a res judicata, collateral estoppel--

Justice Souter: No.

But I mean, that's not... that's not the issue.

I'm not asking you about res judicata.

I'm saying that if he comes into court and, as Justice Ginsburg suggested in her hypo, his experts demonstrate to the satisfaction of the fact finder that there will, in a certain number of cases, be excruciating pain, and he is at least within the risk of that, your response is we're still... that is no grounds for enjoining the execution under 1983.

We can still execute unless he comes up with a proposal for a less painful way of doing it.

And what I want to know is, why does he have such an obligation?

Why isn't it enough to show that there is a probability that he will suffer excruciating pain?

Mr. Snurkowski: --Well, I think for one point, it would be that, in fact, if the State had chosen or selected a method or a change in the modification of the method that was not acceptable to him, then we'd be still back at square zero--

Justice Kennedy: No.

Justice Souter and Justice Ginsburg can protect their own questions.

Part of that allegation in here is that the State wasn't forthcoming with the... with... with the information requested, and you're not very forthcoming with the answers.

What is the source, what is the legal source, what is the precedent for the proposition that the... that the condemned man has to come up with an alternative?

What case do you cite?

What principle do you cite?

Mr. Snurkowski: --The principle I'm--

Justice Kennedy: That's what we're asking.

Mr. Snurkowski: --Yes, Your Honor.

And I'm sorry that I was in any way disingenuous.

But the bottom line is I think that Nelson is the bottom line source of... of concern that we would bring forth to this Court that if, in fact--

Justice Souter: But it was mentioned... it was mentioned in Nelson.

But what would be the reason for... for elevating that... that fact in Nelson to a requirement?

What is the legal principle that would support your argument?

Mr. Snurkowski: --I think the legal principle being that the individual who is coming forth and seeking to have the execution or requesting some relief... he has to come forward with some evidence, some... some body of law--

Justice Stevens: But isn't there evidence in... I noticed the brief filed by some veterinarians call our attention to the statute that prohibits the euthanasia of dogs and cats unless they follow a certain procedure.

So there must have been a legislative feeling that unless that procedure were followed, there's a risk of undue pain to the dogs and cats.

Why isn't there a similar basis for believing that if you don't follow a similar procedure that such a risk might be present for human beings?

Mr. Snurkowski: --And that... that has been an allegation and that has been raised before the courts over the years with regard to that.

Justice Stevens: And what's your response to it?

Mr. Snurkowski: That, in fact, recent... recent development... and I mean, we're talking about an area that has not... we have not gotten that far.

We don't have a record.

Justice Stevens: But your procedure, if I understand it, would be prohibited to be applied to dogs or cats.

Mr. Snurkowski: But the... that procedure... there is... there is legal information or... or scientific information out there that... or... refutes that, and that, in fact, there's a different mechanism and that's--

Justice Stevens: Well, at least it was sufficiently convincing to get the Florida legislature to pass a statute.

Mr. Snurkowski: --That's... that's correct, with regard to that particular aspect because it was one needle being used and all the drugs were being used in that needle.

But that is, again--

Chief Justice Roberts: Counsel, I would have thought your... your answer to the line of questioning earlier was that the reason that the petitioner has to come with this... an alternative is that otherwise it's plausible, at least, to suspect the reason he's bringing the action is as a challenge to the execution itself rather than the particular method.

And that if it's a challenge to the execution itself, it has to be brought under habeas.

If it's just a challenge to the method, it can be brought under 1983.

If he's unwilling to say there is a valid method, then it starts to look like a challenge to the execution that has to be brought under habeas.

Mr. Snurkowski: --And... and that is the core position the State has taken, and I'm sorry if I did not articulate that in a fashion that--

Justice Breyer: But in respect to that core position, I can understand the State's concern with the possibility of abuse.

But in Nelson, what the Court says is it points to Gomez, and Gomez was a 1983 case.

And there, the Court denied a stay of the execution because it looked into the history of the litigation, and they said that this particular individual had done just what worries you, though in a somewhat different context.

He kept bringing the cases, and every time, you know, he'd lose.

Then he'd think of another way of making the same point, and in your context, it would be first he challenges this method and he says there are others that are fine.

So we go to another.

Then he challenges that.

Then he challenges that, always at the very last minute.

So there's a case that provides a weapon if the abuse that you worry about occurs.

So why do we need something else like an absolute rule of some sort that the petitioner has to think of a method of execution, a matter on which he is not necessarily expert, that would turn out in the future to be not painful?

I mean, you don't need to put on your overcoat and also turn up the heat.

Mr. Snurkowski: --But--

Justice Breyer: You've got the case that helps you if that occurs.

Why do you need to argue for something else?

Mr. Snurkowski: --Well, and the other reason we're arguing for something else, it seems to me that the basis upon which we are here today is to determine whether 1983 or habeas will lie.

And apart from that, I'm trying to make an argument, to the extent I have or not, that... that this is more in keeping with habeas as opposed to 1983 litigation.

Thank you.

Argument of Kannon K. Shanmugam

Chief Justice Roberts: Thank you, counsel.

Mr. Shanmugam, we'll hear now from you.

Mr. Shanmugam: Thank you, Mr. Chief Justice, and may it please the Court--

Where a prisoner challenges a particular method of execution but fails to identify a permissible alternative, that claim is functionally equivalent to a claim challenging the prisoner's death sentence per se and therefore must be brought--

Justice Scalia: Why is that?

Why is that?

That... that... in which case it would be like... like Heck.

Right?

It would come within the Heck principles.

Mr. Shanmugam: --Well, our view is that the Heck principle is not applicable here where a prisoner is seeking relief that is indisputably available in habeas.

Our view is that the governing precedent and really the touchstone here is this Court's decision in Preiser v. Rodriguez, which drew the distinction that the Court has long recognized between claims challenging the conditions of a prisoner's confinement and claims challenging the fact or duration of that confinement.

Now, to be sure, that analogy is not exactly apt in the capital context.

But we believe that where a prisoner identifies a permissible alternative, it is that which renders the claim--

Justice Breyer: Well... well, why?

But I mean, suppose he doesn't.

Okay?

But it's absolutely clear he's not saying all methods are unconstitutional.

He's saying this method is unconstitutional.

If he says this method of constitutional and he wins, then his challenge will not necessarily prevent the State from carrying out its execution.

And, of course, I'm reading to you directly from Nelson v. Campbell.

That would seem right in point.

And why isn't that the end of this case?

Mr. Shanmugam: --Well, we do believe that where a prisoner brings an open ended claim of the type at issue here, it would necessarily prevent the State from carrying out the execution in one relevant sense.

Namely, it would prevent the State from carrying out the execution--

Justice Breyer: Yes, and if I bring a claim that my prison cell is so cold, I actually get pneumonia and die, or near it, and then I challenge the coldness of the cell, I'm preventing my confinement in one particular way.

Mr. Shanmugam: --Well, that's exactly--

Justice Breyer: It's a cold cell.

And so that would similarly, on your theory, be habeas, but we know it isn't.

Mr. Shanmugam: --Well, no, I don't think that that's true, and I do think that the--

Justice Breyer: My cold cell case is habeas?

Mr. Shanmugam: --No.

I think that the cold cell case clearly is a conditions of confinement claim.

And let me explain to you, Justice Breyer, if I may, the reason that the identification of an alternative is so critical.

It is the identification of an alternative that renders the claim the functional equivalent of a conditions of confinement claim because a conditions of confinement claim is really necessarily predicated on the assumption that the prisoner will continue to serve exactly the same sentence, even if the claim is successful.

In your hypothetical, if a prisoner claims that his cell is too cold, the necessary implication is that the prisoner will be able to continue to be imprisoned at some higher temperature, even if the prisoner does not specify in his complaint that he wants to be held at 70 degrees or 72 degrees.

And that is the reason why identification of the alternative is so important.

Justice Breyer: Why more than in Nelson?

Mr. Shanmugam: Well, in Nelson, it was important, and we would submit that it was really the dispositive factor in the Court's analysis.

The Court noted the fact that the State had conceded... the prisoner had identified and the State had conceded that an alternative method could be used to administer the execution.

Justice Scalia: I didn't... I didn't get your explanation.

Had you finished it?

Mr. Shanmugam: Yes.

[Laughter]

Let me try... let me... let me try again through a different route, though.

Where a prisoner fails to identify an alternative, the risk here is that such a claim could delay and may, in fact, prevent the ultimate execution of the death sentence.

Justice Ginsburg: What about the risks that the prisoner will die an excruciating death?

I'm asking you the same question that I asked cocounsel.

What happens then?

He hasn't been able to come up with an alternative, but the judge finds it credible that he may be exposed to an excruciating death.

What then?

Mr. Shanmugam: Well, in that case, he may very well have a valid Eighth Amendment claim.

But our principal submission--

Justice Ginsburg: But would--

Mr. Shanmugam: --is that he cannot proceed in a section 1983 action.

Presumably what would happen--

Justice Ginsburg: --Why not?

Because he's saying I am not asking for this to be one day further along.

I'm just asking the State to give me a death that will not require me to suffer excruciating pain.

Mr. Shanmugam: --Well, again, the concern with the claim that fails to identify a permissible alternative is the risk of seriatim litigation.

And I think that the history not only of the Nelson case, but also of some of the ongoing litigation, most notably the Morales case in California, demonstrates that that risk is a very real one.

Where a prisoner fails to identify an alternative method, it is not--

Justice Stevens: Except... let me just interrupt.

Supposing he did identify, say you can only use pentobarbital on me, the same way they do it for a veterinarian.

And the... and the judge says, well, I don't think that's required.

But he would then be satisfied the 1983 requirement?

Mr. Shanmugam: --Well, the State would at least have the option in that case--

Justice Stevens: Of saying no.

Mr. Shanmugam: --of acquiescing in the alternative.

The State would, of course, have the option of saying no and litigating it.

Justice Stevens: But do you agree if he had said I propose alternative X, even though it's highly unlikely the State will accept it, that would make it a 1983 action?

Mr. Shanmugam: That would make it a 1983 action.

And the critical point, as this Court recognized--

Justice Stevens: Even though there's no functional difference in terms of future litigation between that case and this.

Mr. Shanmugam: --Well, the only reason that there would be no functional difference is if the State chose to, in fact, litigate the issue, notwithstanding his identification of the permissible alternative.

And in Nelson--

Justice Breyer: So you're saying... saying then that the defense bar, the capital punishment bar, and the prisoners are the group of people that have to go and do the research on humane methods of putting people to death rather than the government.

Mr. Shanmugam: --Well, I--

Justice Breyer: That strikes me as a little odd, doesn't it?

Mr. Shanmugam: --I would... I would respectfully submit, Justice Breyer, that that is exactly the kind of research that they would have to do in order to bring the claim in the first place.

Justice Scalia: Well, I don't think... I don't think that's the research they would do.

I think the research they would do would be to come up with another method that the State certainly would not find acceptable, thereupon, rendering it a 1983 action and... and leaving everything in the same status that it's... that it is here.

I mean, I don't see that you've accomplished anything by simply demanding that they... that they come up with an alternative.

They're going to come up with a... with an unacceptable alternative.

Mr. Shanmugam: Well, the alternative at a minimum has to be--

Justice Scalia: It... it might be malpractice not to come up with... with an unacceptable alternative.

[Laughter]

Mr. Shanmugam: --At a minimum, the alternative has to be one that is permissible under currently government--

Justice Breyer: Old age.

They'll come with that alternative, old age.

Right?

[Laughter]

Mr. Shanmugam: --Well, that would not... presumably that would not be a method of execution at all.

Justice Kennedy: This... this is a death case.

It was not that amusing.

Let me ask you this.

Doesn't the State have some minimal obligation under the Eighth Amendment to do the necessary research to assure that this is the most humane method possible?

Doesn't the State have a minimal obligation on its own to do that?

Mr. Shanmugam: I'm not sure whether it... it would have an obligation to use the most humane method under the Eighth Amendment because this Court's cases have only suggested that the gratuitous infliction of pain is barred by the Eighth Amendment.

I'm not aware of any cases--

Justice Kennedy: Well, I can define gratuitous... I don't have the dictionary here.

But gratuitous means essentially unnecessary.

If there were other... other means, other alternatives, that might be used, it seems to me that the State might have some minimal obligation to investigate those.

Mr. Shanmugam: --Well, I think more broadly, Justice Kennedy, that one reason that States do have discretion in this area... and I think that Florida is not unusual in that regard... is that prison officials are expected to adopt to evolving methods of execution and to take into account changes that might suggest that a particular method is problematic.

And so whether or not there is a constitutional obligation, I think that there is every reason to think that States will, in fact, do that.

I think that it is noteworthy--

Justice Souter: But is there... is there in this case?

I mean, the Lancet article has been out there for a while, and it certainly is enough to suggest, in your words, that there is something problematic about the manner in which Florida proposes to do this.

And yet, we have not heard a word that Florida has made any effort whatsoever to find an alternative or, for that matter, to... to disprove what the Lancet article suggests.

And so it's one thing for you to say the States have discretion.

I don't think that answers Justice Kennedy's question as to why the State does not have an obligation to fulfill its constitutional duty to execute without gratuitous pain.

And I don't see why you have given any answer to... to the proposal that that obligation requires the State to do some investigation of it's own.

Mr. Shanmugam: --Well, whether or not the State has that obligation... it may very well have that obligation as a constitutional matter, but putting that to one side, it does seem as if the critical question is whether or not the State, in fact, has adopted a method that inflicts cruel and unusual punishment, and where a prisoner has a claim of that variety, a prisoner has other options if the prisoner is unwilling to identify a permissible alternative to bring that claim besides--

Justice Scalia: We've... we've never held that anyway, have we?

Mr. Shanmugam: --And the Court has never held that.

Justice Scalia: That the State must, in... in imposing the death penalty, use a method that inflicts the least amount of pain.

Mr. Shanmugam: The Court has not held that.

Instead, it has--

Chief Justice Roberts: And presumably there's some range between most humane and what's cruel and unusual.

Right?

Mr. Shanmugam: --Well, I think that that is presumably true, based on the formulations that this Court has used which have repeatedly focused on the gratuitous or wanton infliction of pain as opposed to the least painful method.

Chief Justice Roberts: Mr. Shanmugam, several of the emergency death proceedings we've had involving this question, the district court judges have assumed that it could proceed under 1983 but then denied relief because it was brought on the eve of execution, as this one was.

Is that option available to the district court in this case if it's sent back?

Mr. Shanmugam: It is available to the district court, and indeed, it would potentially be available even to this Court as a matter of first instance as it was in the Gomez case.

Thank you.

Rebuttal of D. Todd Doss

Chief Justice Roberts: Thank you, counsel.

Mr. Doss, you have 5 minutes remaining.

Justice Kennedy: You know it... it is true that the 1983 is a civil action, and the plaintiff has the burden of proof, burden of producing evidence.

Mr. Doss: That is true.

That is true, and we would be prepared to do that if we were allowed to go back and... and proceed.

We have produced evidence at the... at the pleadings stage, and as we sit here today, since there hasn't been an answered filed, our... our pleadings are... are accepted as... as true for... as a matter of procedure.

The interesting thing is, is that... is that Florida created this problem.

They can... they can lay it out as to how to euthanize dogs and cats, but they can't do it for humans.

That's perfectly in the open.

Yet, they shroud this in secrecy.

We can't get public records.

We can't... 3.852(h)(3) of the Florida Code of Criminal Procedure prevents us from going and getting these records before--

Chief Justice Roberts: Do you think there was adequate time for the district court to fully consider the evidence you intended to present and consider your claim and still proceed with the execution that was scheduled?

Mr. Doss: --No.

Chief Justice Roberts: You filed your case 4 days before the execution.

Mr. Doss: No, but we were put in that posture by... by the way the State of Florida has chosen to... to vest this total discretion, shroud everything in secrecy, and then complain that we didn't bring it earlier when we--

Chief Justice Roberts: The Sims protocol was there as a matter of public domain.

You said in your complaint yourself, when you didn't get any information, you said, well, I assume you're going to follow Sims.

Why wasn't that assumption valid 3 months before, 6 months before, or a year before?

Mr. Doss: --Because at that point, I knew that they had total discretion.

I knew that before they had changed their protocols when the electric chair litigation was going on.

Indeed, the Florida legislature changed the entire statute when this Court accepted Mr. Bryant's case--

Justice Kennedy: Well, it seems to me that you might... you might have alleged that... that you've read articles, Lancet articles, and so forth, and that there is a substantial risk that they're going to do this.

I think that might suffice.

Mr. Doss: --That--

Justice Kennedy: And... and it would... it would mean that the... as the Chief Justice indicates, the court has more time to look at this.

Mr. Doss: --As far as... as far as the... the ripeness issue, it's not... because of the way Florida chose to do their procedure, it was not ripe, and it doesn't comport with this Court's basic ripeness doctrine that we are going to presume it's going to be done a certain way when the State can come in and say, it's not ripe for review, we... we still have the ability to change this rather than us coming--

Justice Alito: Suppose you... suppose you never were told by Florida what the... how exactly it was going to be done.

Does that mean you never could have brought a 1983 claim even on the day... the scheduled day of execution?

Mr. Doss: --If they... if they never told us, I guess we would be in... in a position of... of assuming Sims is in place.

But the thing is, is that it's an equitable... it's an equitable argument.

And Florida is not coming forward with clean hands.

They created this and then they just want to say, well, you should have known.

We're not going to do anything to help you.

We're going to shroud this in secrecy and not tell anybody.

Justice Scalia: Suppose... suppose they did set it forth but reserved the right to change it.

They promulgated a regulation without public notice, without hearings or anything.

This is our regulation.

This is how we intend to conduct executions in the future.

Period.

We reserve the right to change this.

Would you claim that... that this was not ripe?

You couldn't challenge it at that point--

Mr. Doss: At that--

Justice Scalia: --because they could change it?

Mr. Doss: --If Your Honor... if Your Honor's fact situation includes a presumption that that's going to be the presumption that that's going to be the presumed method, I think at that point, yes--

Justice Scalia: No.

This is the current method that we intend to use in all future executions.

Period.

We may change our mind.

Mr. Doss: --At that point, yes, because they... they are stating that they intend upon using that rather--

Justice Scalia: Don't... don't you think you... you--

Mr. Doss: --rather than playing hide the ball.

Justice Scalia: --don't you think effectively had that knowledge when you knew... knew about Sims and you knew about all of the cases after Sims?

Is that very much short of... of their saying this is the... the procedure we intend to use?

Mr. Doss: Absolutely not.

We only knew about Sims.

We asked for records regarding all the executions since Sims.

We have not received it.

Justice Souter: I... I understand your... your argument to be... and I don't think you're making it here, but I understood your argument elsewhere to be we knew about Sims, but when they stonewalled us and said we won't tell you what we're going to use, we had reason to question whether they were going to follow Sims.

Isn't... isn't that your point?

Mr. Doss: Yes, and that only came into play at the point--

Chief Justice Roberts: No.

You alleged the exact opposite in footnote 3.

You said when they stonewalled you, we assumed they were going to follow Sims.

Mr. Doss: --They stonewalled us only after the warrant was signed because we couldn't do anything at... at the point before the warrant was signed to be able to try to... to gather evidence as to what it was going to be.

And we were never--

Chief Justice Roberts: Finish.

Mr. Doss: --we were never told that.

And because the way Florida has created their system, we were prevented from doing that.

Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted.

Attribution:

The Oyez Project

Featured:

Domino's Pizza v. McDonald - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

Domino's Pizza v. McDonald

Media File:

04-593_20051206-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Maureen E. Mahoney

Chief Justice Roberts: We'll hear argument next in Domino's Pizza v. McDonald.

Ms. Mahoney.

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

The complaint in this case actually alleges that Domino's breached its obligations under a contract with JWM.

It does not allege that any of the terms of McDonald's own contracts were violated.

The Ninth Circuit, nevertheless, held that Mr. McDonald could recover damages so long as he could show that he had suffered some distinct injury arising out of the violation of the contracts between his company and Domino's.

We... we ask this Court to reverse that holding for two principal reasons.

First, Mr. McDonald did not hold any rights under the contracts between his company JWM and Domino's, and that's disqualifying under section 1981.

Second, the injuries that he alleges are simply too indirect to be cognizable under an implied right of action.

This Court, even in the context of express rights of action, whether RICO or the Clayton Act, has looked to the background principles of the common law to define the scope of a damage recovery.

And these kinds of injuries, which are really the classic form of derivative injury, have never been recoverable.

Justice Kennedy: Can... can you tell me, Ms. Mahoney, just in... in a case where the person is directly implicated... he was the one discriminated against.

He obtains in a suit the damages for the loss of the profits in the contract.

What are the other damages?

Does he get emotional distress?

Ms Mahoney: If... if he's... yes, you can get emotional distress under section 1981, and--

Justice O'Connor: If... if you're contracting for yourself--

Ms Mahoney: --That's correct.

Justice O'Connor: --in your own behalf.

Ms Mahoney: Absolutely.

There is no standalone cause of action under Federal law simply for emotional distress that is suffered as a result of racially discriminatory conduct.

Presumably Congress, you know, might do that some day, but it has not done so.

And in fact, even under title VII, racially disparaging comments can cause distress to a worker and they're still not actionable unless it rises to the level of a hostile work environment.

Justice Kennedy: And what was the plaintiff's... it wasn't here.

What kind of damages was he asking for?

Ms Mahoney: He is asking... it's... it's... the complaint is a little unclear, but he's asking for losses that arise out of the company's failure to have revenues that would have passed through the company to him in either his capacity as a shareholder or possibly as an employee.

In fact, it's important to stress how indirect these injuries really are.

The gravamen--

Justice Souter: Well, I thought they were... they were essentially, as I guess you said a moment ago, emotional distress kinds of injuries because otherwise he'd be claiming a double recovery.

So he doesn't do that because they... they settled the contract case with the corporation for what?

$46,000?

Ms Mahoney: --$45,000, Your Honor.

Justice Souter: So... so that the only thing he... he's not claiming an economic injury, as I understand it, or am I wrong?

Ms Mahoney: I think you're wrong, Your Honor.

He actually in his complaint asked for economic damages.

He doesn't specify them, but in an affidavit that he submitted to the district court, he said that his net worth had declined $8 million and he is saying that he--

Justice Souter: But I... I guess that's where I went wrong.

I thought those were the reasons that he was claiming that he had been distressed emotionally.

Ms Mahoney: --I don't think so, Your Honor.

Justice Souter: But you're... you're saying he wants the--

Ms Mahoney: But either way, the outcome should be the same because emotional distress is not a standalone claim.

He has to establish that he had rights to make and enforce a contract that were violated, and even if he did that, he still has to show that the damages that... that were caused by Domino's were sufficiently direct to be cognizable.

Chief Justice Roberts: What if you have a--

Justice Ginsburg: What... what he's saying is treat me as a sole proprietor.

Yes, I created this corporation so I can be insulated from liability, but this is a one person show and so I am bringing a 1981 claim and say forget the corporation.

I'm the only human that's involved in this activity.

Ms Mahoney: Your Honor, I think there's a couple of problems with that.

I mean, first of all, these were contracts where Domino's had rights under these contracts as well, and if it had sued Mr. McDonald under the terms of the contract for failing to perform, he would have rightly said, that's not my contract.

And I don't think that we can think that Congress intended this Court to simply disregard those principles that have always governed where you... if you take the benefits of avoiding liability, you can't turn around and say, well, now that it's time to recover against Domino's, it is my contract.

That's not the way the law works.

He can't disown the... the force of the law when he's taken the benefits of the law.

And now, the burden here is really a moderate one.

It's one that says that the recovery that is owed will come through the corporate entity.

He will get whatever his share of that is through the... the corporate processes, and he won't be able to have an independent claim for emotional distress.

But--

Chief Justice Roberts: --Counsel, what if you have a case where a company says we are not going to deal with any companies that have an African American as the CEO?

Couldn't that CEO, the individual, claim that that policy interferes with his ability to make contracts with his company to be the CEO?

Ms Mahoney: --Well--

Chief Justice Roberts: And shouldn't he then have a right to bring a claim under section 1981?

Ms Mahoney: --Your Honor, if his company fired him because he couldn't make contracts... in other words, they said, we... we don't want you to be our CEO.

We don't want a black CEO because, after all, we're going to lose business with these other companies... then I think under an interference theory, that he probably could sue under 1981, sue both his company and also the third party that induced the interference.

If we look to common law principles, the common law of tortious interference established various rules that were designed to provide recovery for interference when the causation was sufficiently direct, and the common law says... this is section 766 of the Restatement and cases that follow that... that, in essence, if the third party... or if the defendant induces the breach, essentially, you know, tells them, this is how we want it done, we want you to fire so and so if you want our business, if they induce the breach or induce the violation, then they can be liable as well.

Justice Kennedy: Suppose that McDonald had had a contract with the corporation that he gets 80 percent of the gross from every contract.

Could he then sue?

Ms Mahoney: No, Your Honor.

There are two different things.

I mean, one... one part of it is that here his... he doesn't say that his contract wasn't performed, but he also would have to show that Domino's was the direct cause of his loss.

And the common law, under section 766, for instance, says, look, if a... if a third party or if the defendant just made it more difficult for your employer to perform or for your company to meet its obligations, its contractual obligations, by causing it to have less money, that doesn't count.

That's not inducing a breach.

Justice Kennedy: Well, but... but in this case, it's pretty obvious they didn't care about the corporation.

They cared about him.

He was the target.

Ms Mahoney: Well, he may have been the reason for the discrimination, but the target, in terms of the direct victim of the conduct that is alleged, was clearly JWM.

It's JWM whose contracts were supposedly breached.

And... and the point is, Your Honor, the... the law has made it clear that simply breaching a contract in a manner that makes it more difficult for somebody else to perform is not a sufficiently direct cause of the... of the failure to perform all of the succeeding downstream contracts.

Otherwise, the... the rules of privity would simply be eroded.

So instead, it's a very narrow category of cases where a breach of contract can be viewed as the direct cause of another party's failure to perform a separate contract with the plaintiff.

And let me give you an example, just to... to show what it's talking about.

If, for instance, there is a contract where I am the defendant and I have the right to approve an assignment, and the plaintiff has a contract with a third party and I refuse to approve that assignment.

Then I have retained the legal control under the terms of my contract as to whether the plaintiff's contract can be performed or not.

And in that circumstance, if... if I deny approval on the basis of race, I have made it literally impossible for the other parties to perform.

And that's the... the narrow exception.

It's either inducing the breach, inducing the breach of a contract, or it's making it literally impossible, but not simply making it more expensive or more difficult.

And... and I think it's important to emphasize why these rules were developed under the common law this way.

In... in part, it is to protect the very reasonable and legitimate interests of... of innocent third parties.

In... in... take the corporate context.

If General Motors has a dispute with a major customer, and imagine that there is some sense that that... that the customer may have breached its contracts because it... it thought GM's work force had too many black faces, GM has got to figure out what to do about that.

It's not going to capitulate and fire its work force, but it has to decide whether it wants to settle, whether it wants to litigate.

It may litigate and then want to settle.

But that's its claim, its contract claim, and it has to have the freedom to figure out how it ought to be settled.

If every black employee at GM could file an action under section 1981 for emotional distress or for wage increases that they might not have gotten because GM lost this big piece of business, then GM would lose the ability to control the settlement of its own claim.

And so... and it's an innocent party in this fact pattern.

So the law has been designed under... under the common law to make sure that everybody's interests are sufficiently protected.

And what the Ninth Circuit's, you know, ruling does here and what the plaintiffs are really asking for is to just blow through all of those rules that... that have been designed to... to make sense out of contracts... contract laws and still allow some room for tortious interference sorts of principles.

And under... under the Court's cases, I don't think there is any basis to think that Congress intended the Court to create an implied right of action that is completely divorced from the common law principles that would have foreclosed these kinds of remedies.

Justice Kennedy: Are there any--

Justice Ginsburg: Did you say there is or--

Justice Kennedy: --are there any cases where we pierced the corporate veil in order to help the shareholder?

Ms Mahoney: Not that I know of, Your Honor.

And I--

Justice Kennedy: This is kind of an inverse--

Ms Mahoney: --Yes, inverse... reverse piercing.

Justice Kennedy: --corporate veil piercing.

Ms Mahoney: Not that I know of, and I don't... and I... I think if you did that, would you do it for employees too?

Can all the employees sue?

I mean, where... where does it stop?

Can... if Domino's violated a term of a contract because it was... it wanted to cause economic loss to the employee of a subcontractor, can... can he then sue?

I mean, looking at the theory of damage in this case shows just how indirect it is.

If you look at paragraphs 24 through 27 of the complaint, the sole theory of harm here is that Domino's had an obligation to provide a letter to... to JWM, certifying that JWM wasn't in breach of any terms of the lease, and that it refused to provide that letter, and when it did so, the bank denied some financing on a project, and then that caused JWM not to have money to invest in other projects.

And so then it didn't have enough money to pay its creditors, and so then it went into... had to declare Chapter XI bankruptcy.

And then McDonald didn't get as much money from the corporation as he otherwise would have.

Justice Breyer: There are two separate arguments here, and I'm trying to separate them.

I guess that many States have a doctrine in two areas of law.

Third party beneficiaries can sometimes recover; sometimes they can't.

Victims of efforts to interfere with a contract sometimes recover; sometimes they can't.

And one question is whether this particular individual fits within those doctrines.

And you have to be an expert on contract law to know.

But in respect to the civil rights law, I guess your position is... and this is what I want to know... that whatever those doctrines are, they have to be the same for white people as for black people.

Ms Mahoney: I think the language of the statute says that it's protecting the... the right of all... the same right to make and enforce--

Justice Breyer: All right.

So... so they might apply.

One thing you couldn't do if you're a State is have a different rule for black people that treated them worse than white people.

Ms Mahoney: --I think that's correct, Your Honor, but--

Justice Breyer: All right.

And has there ever been a case in respect, whether it's affirmative action or some other thing, that interprets that... that... this particular civil rights statute to say that for whatever historical reasons, et cetera, black people are entitled to more protection under contract law than white?

Ms Mahoney: --Not that I can think of, Your Honor.

And I think the language of this statute, though... I mean, certainly though... of course, the Court in McDonald did interpret this statute to... to also protect white person... white... white people, people of all color, despite the language that says, you know, rights the same as... as whites.

But--

Justice Ginsburg: --Do corporations have a color?

Ms Mahoney: --No, they don't, Your Honor, but all of the courts of appeals have, in effect, imputed race to corporations under circumstances where their... their contractual rights have been violated because of the race of their shareholders or employees.

And that has been well settled, at least in the courts of appeals.

Justice Breyer: So how do we deal with this?

That is to say, do I have to become an expert on contract law, or do I say to the Ninth Circuit or the circuit, look, the... the question here is not what the contract law is except insofar as it's relevant to whether there's a differential in treatment?

Ms Mahoney: Well, Your Honor, I... I don't think you have to be an expert on contract law.

I think that this Court already held in Patterson, for instance, that section 1981 was designed to have its own Federal content, but that when we look at the term, the right to make and enforce contracts, certainly we have to interpret that in light of common law rules.

And under the common law of contracts, only parties and third party beneficiaries have... hold rights under those contracts.

Under section 302 of the Restatement, it defines who a third party beneficiary is, and I think that's a good starting place.

It shows us that children, you know, as in this Court's case in Runyon, are third party beneficiaries.

Union members are third party beneficiaries of collective bargaining agreements under that... under the comments in the Restatement.

But the plaintiff acknowledges that the shareholders and employees are not intended third party beneficiaries of the contract.

Chief Justice Roberts: Well, maybe not... maybe not shareholders in general, but what if you have a situation, like here, where you're dealing with sole shareholders?

Why is that a real stretch to say that that person is a third party beneficiary of the contracts of his corporation?

Ms Mahoney: Well, the... for two reasons.

First, the contract has to actually identify third party beneficiaries.

In other words, parties need to agree on who's a third... on who the beneficiaries are supposed to be.

And here, of course, there's nothing in the contracts.

They haven't alleged there's anything in the contracts to identify him as that.

And also, if... if--

Chief Justice Roberts: There was nothing in these contracts requiring anything in the way of personal guarantees or anything of that sort?

Ms Mahoney: --I don't believe so, Your Honor.

It's certainly not alleged in the complaint that there is a personal guarantee.

And... and I don't think so because when Domino's sued JWM, it did not sue Mr. McDonald.

And... and as I say, if... if they had, I'm sure Mr. McDonald would have put up his hand and said, no, thank you, that's not my contract.

And I... so I don't... I think that really what we are asking the Court to do is just to look at the language and... and read it in light of these well established principles because that's what Congress would have intended the Court to do, and that he is not a third party beneficiary.

He is not a party.

And so the Ninth... the rationale of the Ninth Circuit would need to be reversed because that's all it relied upon.

And then the alternative theory--

Justice Breyer: Well, but that's exactly what I'm asking.

If... if you win, this case is reversed, sent back.

I mean, what do... would I tell them?

And why not tell them, instead of having to delve into this, is, look, it's plausible here that third party beneficiary doctrine might cover this person?

It's also plausible not.

We're not experts.

We don't know.

You figure out what the normal rule is and apply that normal rule.

Ms Mahoney: --Well, I don't think we need to do that because there's been a concession in this case that Mr. McDonald is not a third party beneficiary under the normal rules and is asking, instead, that the Court create new rules, rights greater than third--

Justice Breyer: Well, what about the other part of it, which is the... the interference with the contract?

Could we say the same thing there?

We send it back, say, look, we're not experts on this, it's a matter of State law typically, and be absolutely sure, please, that whatever doctrine you normally apply is applied to this case too because it's plausible.

He's the sole shareholder.

He's the sole beneficiary.

Ms Mahoney: --Your Honor, I... I... we would ask that this Court not do that for two reasons, that the alternative theory of tortious interference was never pled.

It was never argued, and the district court dismissed this complaint with prejudice because there was no alternative theory.

They did not move for leave to amend.

So I think this Court should say one of two things about the alternative theory.

Either, number one, it is waived, or number two, based on the arguments that have been advanced and the allegations of the complaint, it could not possibly be cognizable.

And I... I don't think you have to be an expert on interference law in order to reach that conclusion because--

Justice Ginsburg: Are you saying this is a matter of Federal contract law, common law, Federal common law, are... or are you saying you go State by State, in which case 1981 is some places it will be third party beneficiary, some it won't?

Ms Mahoney: --I... I think, Your Honor, that in... in the prior cases, in Patterson in particular, that the Court rejected the idea that it ought to be the State... the law of each State that governs the scope of the rights.

That argument, I believe, was advanced by the Solicitor General, and this Court said, no, they didn't think that was correct.

And similarly, in Haddle v. Garrison, which is a section 1985 case, this Court looked to common law.

But it... it said that it's really Federal common law that controls these issues.

So I think it's looking just to... to the State law principles to inform what Congress may have had in mind when it... it allowed for persons to recover for violations of the rights to make and enforce contracts.

Here--

Chief Justice Roberts: But is it State law today or State law back when section 1981 was passed?

Ms Mahoney: --This Court has looked to both, but in Associated General... Associated General Contractors, for instance, this Court said that it's not bound by the terms of common law that existed at the time that the statute was adopted, and... but rather, that common law evolves, and so it's appropriate to... to look beyond that.

I think it bears emphasis, though, that the common law of tortious interference at the time that this statute was adopted in 1866 was narrower than it is today.

But even under the broader views of tortious interference, the plaintiffs concede that they would not be able to recover under those theories, and instead, have said to this Court 1981 should be... go well beyond the terms of common law interference principles.

Justice Kennedy: Well, in a... in a sense this is stronger than some tortious interference claims because here the target is this... this party.

Ms Mahoney: That's always true in tortious interference claims, Your Honor, and--

Justice Kennedy: You mean that... that the injured party has to be the target?

Ms Mahoney: --Absolutely.

The injured party has to allege that the defendant knew about the contract and specifically intended to interfere with the performance of the plaintiff's contract.

But, nevertheless, we know of no--

Justice Kennedy: To interfere but not necessarily to injure him.

Ms Mahoney: --And to injure.

Well, to injure him, to prevent his performance for... for purposes of injury, yes.

And, nevertheless, we are aware of no case that has ever found that an employee of a company or a shareholder of a company could recover under common law tortious interference theory simply because it suffered losses arising out of a breach of contract with its own corporation that made it more difficult or more expensive for the corporation to recover.

And I think it... it is... also bears emphasis of where this theory would take the Court if it were to recognize this.

It would go far afield from the core requirement that there not be discrimination in the terms of an employment contract because this... the tortious interference theory, of course, is based solely on the concept that he may have had some sort of implied employment agreement with JWM.

What this would mean then is that if... in the case of GM, if a major customer cancels a contract and GM doesn't give raises to its work force, all of the black workers would have causes of action because of the injuries that were intended because the contract was canceled on the basis of race, but their similarly situated white coworkers would not.

They would have suffered exactly the same injury, but they would have completely different rights.

And that shows why this derivative injury theory just doesn't fit section 1981 because at its core, it has to be about preventing discrimination in the terms of the actual contract.

And here, there is no allegation that JWM subjected McDonald to any discriminatory terms of employment, and therefore, it is not... or that it... a breach was induced.

And therefore, it isn't the paradigm case, and it would create problems down the road to recognize this... this kind of theory.

So I don't... I don't think that we are asking the Court to do anything radical, and I think the whole issue of tortious interference can be avoided, if the Court would prefer, because the... the theory was unquestionably waived.

There are 14 paragraphs of facts in this complaint laying out the factual allegations.

Paragraph 11 says that Mr. McDonald is the president, sole shareholder, and operator of the company.

Nowhere in those 14 paragraphs does it say that he had an employment contract with JWM.

Similarly, the cause of action paragraphs... I believe there are 15 of them... repeatedly identify the contracts between Domino's and JWM as the contract at issue, the contract that was breached, the terms that were violated.

Nowhere does it refer to an employment contract.

This complaint, as the district court recognized, only pled one theory, and that was the theory that Mr. McDonald was entitled to enforce the rights of JWM.

It does not plead any theory about violations of his own employment contract.

And as I said, that... even if... even if you could infer it, you would still have to find that it's not a cognizable theory because he doesn't allege that the terms of that contract were actually violated.

And in fact, at page 45 of his brief... or 44, he concedes that JWM did perform the terms of the contract.

And second, even if there had been a failure of performance, he cannot show that Domino's was a sufficiently direct cause of that failure of performance.

Just... just to give, you know, yet another example, I mean, if I... if my employer has a... a bad year this year because somebody breached a contract with the employer and I don't get a bonus, I... you know, I may say I suffered some... some loss.

The value of my contract, my employment contract, may be reduced, but my rights under that contract have not been impaired or abrogated.

I have the same rights.

They're just worth something less.

And all that this statute does is to protect rights, the same rights as white people have.

It doesn't say that you are protected from any kind of discriminatory conduct in the economy that may, in some sense, make your rights less valuable.

I'd like to save the remainder of my time for rebuttal.

Argument of Allen Lichtenstein

Chief Justice Roberts: Thank you, counsel.

Mr. Lichtenstein.

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

The issue here is whether, by choosing to operate as a solely owned corporation, John McDonald forfeited his 1981 protection.

Rather than federalizing State contract law, section 1981 imposes a nonnegotiable nondiscrimination duty that is neither a contractual provision nor governed by contract law.

Intentional racial discrimination is not merely a breach of contract terms.

As this Court has already noticed... noted, it is more akin to a tort.

Domino's question presented asks that both plaintiff and defendant had to be parties to the contract.

Yet, Domino's notes that non parties without privy of contract are also protected, citing third party beneficiaries and the fact there were employers, such as supervisory employees or prime contractors.

Thus, even Domino's concedes that the answer to the question presented is no.

Section 1981 protection is not limited to parties to the contract.

There's still, however, the remaining question of whether John McDonald fits within the statute's protection.

Clearly, if he had been a sole proprietor, there would be no question of stating a cause of action.

We contend that he's still protected based on three grounds: one, the intended language of section 1981; two, John McDonald's relationship with Domino's; and three, John McDonald's relationship with JWM.

Chief Justice Roberts: Well, let's take that last one first, if you don't mind, since the argument is that you've waived that argument by not... not raising it below.

Mr. Lichtenstein: Well, we believe that it has been sufficiently raised below.

1981 does not have any special or enhanced pleading requirements.

This is notice--

Justice O'Connor: Where in the complaint does it allege a tortious interference claim?

Mr. Lichtenstein: --It doesn't allege a tortious interference claim, and this really isn't a tortious interference claim as petitioners suggest.

This is a 1981 discrimination claim, and very clearly that was alleged.

In terms of the requirement for wages, back wages and front wages, that is on... I believe it's page 17.

Chief Justice Roberts: No.

The--

Justice Scalia: Excuse me.

Chief Justice Roberts: --the allegation I'm looking for... and I... I guess you probably didn't... you didn't have to raise it below, given the state of the Ninth Circuit law I would suppose.

But in your brief in opposition, where it is raised that this interferes with the contract between you and... between McDonald and JWM?

Mr. Lichtenstein: I don't think it does appear there specifically.

But again, the... the question was a fairly narrow one, which is what is Ninth Circuit law.

Does Gomez apply?

And it went up to the Ninth Circuit on that particular level.

Chief Justice Roberts: But coming here, I would have thought our rules say that if you're going to rely on this as a ground for affirmance here, we should see it in the brief in opposition.

Mr. Lichtenstein: The brief in opposition at the Ninth Circuit you're referring to or--

Chief Justice Roberts: Here.

Mr. Lichtenstein: --this brief?

The allegations concerning our argument about--

Justice Scalia: Brief in opposition to the petition for certiorari.

You... you did not raise this.

Mr. Lichtenstein: --They did not raise that... that--

Justice Scalia: So... it's... it's brand new to us.

We... we didn't think this was in the case at all.

Mr. Lichtenstein: --Well, again, I think that if the issue is whether it was raised below or should be, then perhaps a remand back to flesh out that particular argument would be the appropriate response.

I think that in terms of--

Justice Ginsburg: It wouldn't just be an argument.

You'd have to amend your complaint because it wasn't set out in the complaint.

Mr. Lichtenstein: --If the Court believes that it more specifically needs to be set out in the complaint, then clearly that would be one of the remedies.

We don't really believe that that is necessary in a sense when dealing with the question presented.

Both of our arguments are really sort of formulations of the same argument.

The question is did Domino's actions aim at John McDonald.

Was he the precise target?

That was clearly set out, and--

Justice Breyer: Is targeted enough?

I mean, I'm thinking here not necessarily your case, but in general.

Is a claim of discrimination... I don't know the state of the law, but maybe if a minority shareholder... a minority person is the sole shareholder of a corporation, maybe that corporation could assert protection, or maybe it couldn't.

But here, I take it that the corporation JWM brought an action and won or settled for $45,000.

So they're out of it.

Now we're just thinking about the sole shareholder, and the sole shareholder says there's another action here.

And as to the two most plausible ones that I would like to assert an action as a third party beneficiary, we've heard the other side say that you've conceded you have no right there.

And as to the other one, which might be protected in many cases, that the... knowing that what was going to happen, they deliberately interfered with the contractual relation between me and the corporation.

That's what we're asking about now.

And you say, well, I didn't raise that.

Now, is there a reason you should be given an opportunity to raise it?

Mr. Lichtenstein: --I believe that the opportunity to raise that is part of the... the same argument.

This isn't really a question of third party beneficiary.

This is an issue of--

Justice Breyer: You conceded that out.

Mr. Lichtenstein: --discrimination and this was claimed in terms of discrimination.

If in fleshing this out, it was not specified in the various ways that this discrimination was affected, that oversight shouldn't preclude the basic argument that is really the same--

Justice Breyer: Because?

Mr. Lichtenstein: --Because it still is responsive to the question presented, which is, is the privity issue one that precludes recovery for John McDonald?

And that seems to be the same issue, regardless... regardless of how it's formulated.

And the answer to that question I think is... is clearly no in terms of the tort... tortious behavior by the... by Domino's in terms of the discrimination.

It is not... also, the--

Justice Scalia: Excuse me.

I... I thought the question presented... I didn't think.

I'm reading it from the petition for writ of certiorari.

In the absence of a contractual relationship with the defendant, are allegations of personal injuries alone sufficient to confer standing on a plaintiff pursuant to 42 U.S.C., section 1981?

So, I mean, the question presented was... was precisely if your client did not have a contractual relationship, would the mere allegation of personal injury, which you're now alleging, be enough to confer standing.

Mr. Lichtenstein: --Well, it's... the allegation of both... well, discrimination is a personal injury.

In Goodman, this Court has said that violation of section 1981 is a personal injury.

It's not a contract injury.

So the question presented--

Justice Scalia: Well, the question is... I mean, that begs the question, whether there has been a violation of section 1981, and the argument here is that there's no violation of section 1981 unless you're interfering with a contract of the plaintiff.

Mr. Lichtenstein: --And the response of the... of the respondent is it is not simply your own contract or your contract with the defendant that is subject to 1981 protection.

There are several instances... and we've cited them in our brief... such as Shaare Tefila and Runyon... where the actual target of the discrimination is not in contractual privity with the defendant.

And--

Justice Kennedy: Are you referring to Runyon, for instance?

The parents always had a special relation to the child.

It's something of a stretch to say that the corporation has that same relation with its own shareholder.

Mr. Lichtenstein: --I think in this particular case it isn't a stretch.

The discrimination was aimed at John McDonald.

There was not--

Justice Breyer: That might--

Justice Kennedy: There's no doubt he's the target.

That's the--

Mr. Lichtenstein: --But, I mean, the... Domino's itself viewed JWM as John McDonald.

The statement, we don't want to do business with you people... you people isn't anyone else other than John McDonald.

And the allegations go further than simply back wages and even the dignitary damages which are available under section 1981 but not under contract law is also alleged that by going after his credit and going after the banks that he had relationships with and given guarantees to and going after him personally, that this wasn't simply derivative of JWM's damages, that he had his own separate damages that, in fact, could not have been recovered by JWM had JWM filed a 1981 action.

Justice Ginsburg: Was there any overlap?

The... what damages could the corporation JWM have collected under... had it brought a 1981 suit?

Mr. Lichtenstein: It had... it could bring the... a suit for the damages of the lost revenue that it could have gotten from its contract.

We believe, looking at State law, because we think it is a matter of State law, that here JWM would get its net profits.

The wages that would be paid out would be recoverable by John McDonald.

Different States may look at this differently, but that really wasn't the issue that this case had been--

Justice Breyer: --Then the argument for sending it back, if I understand it, is this, that when you look at the question presented, no one could possibly file a lawsuit... and you didn't... on the theory, well, I'm hurt, so somebody should pay me.

That isn't the legal theory.

Mr. Lichtenstein: --That is correct.

Justice Breyer: Rather, the legal theory here was that this contract related section of the law is violated.

And you want to say the simple fact that the contract wasn't between McDonald and JWM, that's a separate matter.

That doesn't bar you from bringing your claim.

So, on the one hand, you argue that I can bring my claim as long as I'm a target and the motive as to why they breached some other contract, the one between the two corporations.

And we seem to have it conceded that even if that's too broad, there are at least some circumstances where you could bring your claim.

One is if you were a third party beneficiary.

That's not present here.

And the second is if you are a target such that their action violates and interferes with a contract between you and your own corporation.

At least you have that going for you.

So you say, well, if I was wrong about the broader theory, give me a chance to allege the narrower.

Mr. Lichtenstein: Well, I don't--

Justice Breyer: Is that right?

Mr. Lichtenstein: --Well, I don't really think--

Justice Breyer: I'm trying to be helpful in this respect.

[Laughter]

Mr. Lichtenstein: --I understand, and I do appreciate it.

I don't think the broader theory, number one, was if I was a target, that's all there is.

Justice Breyer: No.

You have to say the certain kind of target.

The kind of target is that they--

Mr. Lichtenstein: Also--

Justice Breyer: --were discriminatory, aiming at me, et cetera.

Mr. Lichtenstein: --Yes.

I think that there are circumstances, in terms of alleging particular injuries and interference with the making, enforcing, or performance of contract.

I don't--

Justice Scalia: Which you didn't allege and didn't even raise in the brief in opposition here.

Mr. Lichtenstein: --I... I think we alleged that in terms of the ability of Mr. McDonald to perform on the contract, even though it was--

Justice Ginsburg: But those contracts--

Justice Scalia: His contract with... with the corporation?

Mr. Lichtenstein: --The--

Justice Scalia: No.

Mr. Lichtenstein: --The statute doesn't say that it has to be his own contract with the defendant.

Justice Scalia: That's exactly the issue.

And--

Mr. Lichtenstein: And that's--

Justice Scalia: --and that's how I understood this came... case came up here.

The contract you're relying on is the contract between the corporation... between the corporation and Domino's.

And can you... can you sustain a lawsuit for the violation of that contract?

There was no mention of any other contract.

I don't know why we should send it back down so you can mention a contract that you haven't even thought of even when you filed the brief in opposition.

So that's the issue, whether the violation of the contract between McDonald... between Domino's and your client's corporation will allow your client to get... to get some damages inasmuch as he was the target.

That's how I understood the lawsuit.

Mr. Lichtenstein: --Well, that is clearly the main thrust of... of our position.

Justice Scalia: Now, could you tell me when... the... the claim was settled when your client's corporation was in bankruptcy.

Right?

Mr. Lichtenstein: Yes.

Justice Scalia: And I assume your client had no... nothing to say about... about whether the settlement would be... would be accepted by the trustee or not.

Mr. Lichtenstein: Absolutely.

He... it was out of his hands.

Justice Scalia: It was out of his hands, which means that, you know, you're... you're sort of pleading the advantage of a corporation, limited liability and all of that, and went through bankruptcy taking that advantage, one of the consequences of which was that you left it to the corporation to settle this claim.

And now you want to disclaim the advantage of a corporation and say, oh, although the... you know, the corporation settled it out... you know, I was no longer in control of it because of the bankruptcy... I want to bring the claim on my own.

I mean, I can understand why it would be nice for you to get that, but it doesn't seem to me that you should be able to play dog in the manger that way.

You either... you either accept the corporate form or you don't.

Mr. Lichtenstein: The corporate form gives certain protections, largely from personal responsibility for corporate debt has some tax advantages.

It certainly is not going to protect any corporate officer or shareholder from their own, for example, tortious behavior.

Justice Ginsburg: --But you'd have to concede at a minimum that now that the corporation has settled the breach of contract claim, that to the extent that the corporation could have recovered under 1981, that's gone too because those two claims were intimately related, and you would be precluded from bringing such a claim.

So to the extent that there's an overlap, you face a res judicata bar.

Mr. Lichtenstein: Your Honor, even if that claim had not been precluded by bankruptcy... and there were two plaintiffs in this case, JWM and McDonald... there certainly couldn't be double recovery.

Anything that would be recoverable in any form by JWM clearly cannot be recovered by John McDonald as an individual.

And the Ninth Circuit said that.

They were talking about his own separate and distinct injuries.

So double recovery would never be possible.

Justice Ginsburg: So they... the Ninth Circuit's view is there are two potential plaintiffs in this situation.

Both can sue and one gets... the damages are not identical.

That's--

Mr. Lichtenstein: I'm sorry.

Justice Ginsburg: --The shareholder can sue.

The sole shareholder can sue.

The corporation can sue.

Both have 1981 claims.

It's not either/or.

Mr. Lichtenstein: Correct.

Justice Ginsburg: They both have 1981 claims, but the damages are different in the case of the individual than in the case of the corporation.

Mr. Lichtenstein: Absolutely.

Justice Stevens: May I ask just... did the individual plaintiff assert the 1981 claim at any time before the settlement of the corporate claim?

Mr. Lichtenstein: Yes, I believe that the... and I would have to check on the timing of this, but I believe that the suit was filed prior to the settlement of the 1981 claim... of the bankruptcy--

Justice Stevens: I would have assumed--

Mr. Lichtenstein: --I'm sorry.

Of the bankruptcy claim.

Justice Stevens: --there wouldn't have been a settlement first without taking care of the second, if they had known both were on the table.

But you say the first had been... both of them had been--

Mr. Lichtenstein: That is my understanding.

I... I would have to really check on that, but that is my understanding.

And again, we are looking at this particular situation.

We keep talking about actual target.

The petitioner keeps talking about derivative, incidental claims.

This isn't a derivative, incidental claim.

There is no one who has a race in this case that is relevant other than John McDonald.

JWM, John W. McDonald, didn't get its financing, didn't get its credit based on the fact that it was just created as a corporation.

It was John McDonald.

Here, you have the situation where... and it's kind of a unique one... where there's a claim that John McDonald, the actual person who was being discriminated against, can't recover but some other entity can.

That sort of turns section 1981 on its head.

Justice Scalia: Well, it was his... it was his corporation, and until he went bankrupt, any recovery by that corporation would have been a recovery by... by John McDonald.

What... what created your problem is the fact that... that the corporation went bankrupt.

Mr. Lichtenstein: Your Honor, I don't think that's the--

Justice Scalia: But, you know, that's... that's one of the... one of the consequences of taking advantage of the corporate form.

Mr. Lichtenstein: --Your Honor, I don't think that's the case because if there was, for example, this two party suit, JWM could not recover for dignitary damages.

Only an individual can do that.

Justice Souter: Well, can you... can you do that under a general contract theory?

Mr. Lichtenstein: I don't believe you can do it under a general contract--

Justice Souter: So you're reporting not merely the... the tort of tortious interference, but some general, broader concept of tort law as being subsumed with... under 1981.

Aren't you?

Mr. Lichtenstein: --Yes, and I think the... the case law indicates that, that this is not simply just federalization of State law.

This... looking at the history of section 1981, this was designed to combat not tortious interference claims in common law, but the black codes during Reconstruction that prohibited black individuals, individuals just like John McDonald, from being able to pursue their trades, operate--

Justice Souter: All right, but the... the focus of it is, as... as I understand it, and the... the kernel of it is... is the capacity to contract.

And we can certainly understand, I guess, how tortious interference with contracts might come under that umbrella, but you're going further and you're saying, I take it, any tort that would give a recovery... recognize a recovery for... for dignitary injury would be subsumed with... within the concept of what 1981 was intended to... to cover, which is a broader proposition.

Mr. Lichtenstein: --I think that what we are saying I think is what the Court has said... is that this is a personal injury, and that dignitary claims are subsumed under 1981.

I don't think it's expand... I don't think--

Justice Souter: Well, contract... I... you... you pointed out the... the terminology which includes contract damages or... or contract harm as personal harm, but it doesn't necessarily follow from that that every harm or every injury that is personal falls under... conceptually under the 1981 umbrella.

Mr. Lichtenstein: --No.

Discrimination is a personal injury.

This Court said that in Burke and I believe in Goodman also.

So we're talking about personal injury here, not just contract harm.

Justice Scalia: But it doesn't... it doesn't talk about personal injury that... that broadly.

It talks about the right to make and enforce contracts.

That's the portion of it you have to be relying upon.

It doesn't talk about--

Mr. Lichtenstein: Well, it's--

Justice Scalia: --personal injury.

It's not a--

Mr. Lichtenstein: --it's--

Justice Scalia: --it's not a more generalized tort.

If want to call it a tort, it is a tort that goes to your ability to make and enforce contracts.

I don't see anything--

Mr. Lichtenstein: --I believe, Your Honor--

Justice Scalia: --dignitary about that.

Mr. Lichtenstein: --that it goes to your right to not suffer discrimination within the realm of making, performing, and enforcing contracts.

The focus is on discrimination, which is a personal injury and a personal harm, and the--

Justice Scalia: And you're saying it means discrimination that relates to the making and enforcing of a contract with somebody else.

And you're saying that since the discrimination was targeted at you, even though the contract was with... was with somebody else, you have a claim under this language of 1981.

Mr. Lichtenstein: --Yes, in this circumstance where the contract with someone else was the mechanism that was used to target an individual.

And, again, when you're dealing with--

Justice Souter: Yes, but there's no way to confine it to the individual, is it?

I mean, the... on your... on your target theory, a... a general discriminatory animus as a basis for breaching a contract with General Motors would give a right of action to... to every minority employee of General Motors.

Isn't that correct?

Mr. Lichtenstein: --If there is a circumstance, as I understand the hypothetical, where there is blatant and intentional discrimination, racial discrimination, by a multinational corporation like General Motors, who say we're not going to do business with any company that hires black people... and clearly there's an uphill battle for any kind of proof, but you'd have to show that there was actual targeting, that it really did interfere with the ability to perform contracts, and that there were specified individual damages.

But if that were the case and could be proven, that would be pretty egregious and probably something that 1981 should cover.

Justice Scalia: But... but when you say damages that can be proven, the only damages you... you insist upon proving is the fact that you were a target and that it... it insulted you.

It... it was... you know.

That's the only damage you require.

So you're saying that every... every minority employee of all of the companies with whom GM, or whoever it is didn't do business, would automatically have a cause of action.

Mr. Lichtenstein: No, Your Honor, I don't believe we're saying that because--

Justice Scalia: No.

Okay.

Well, then... then what do they have to show?

They have to show that... that their salaries were... were reduced?

But... but you haven't shown that here.

You didn't plead that here.

They have to show... show that a contract with them was breached?

But you didn't plead that here and you didn't show it here.

So the... the only thing that... that you... you can answer is they would all have causes of action if their... their honorific values were somehow impugned.

Mr. Lichtenstein: --I don't believe so, and I think that what was pled and we believe is not just the wages that were not paid, but also the dignitary damages and also the damages specifically aimed at John McDonald in terms of ruining his credit, going to the banks, and in a sense slandering him, and those kinds of damages that were not recoverable by JWM but were specifically John McDonald.

Justice Scalia: That was... that was the consequence of the bankruptcy of his corporation.

I mean, that didn't... didn't--

Mr. Lichtenstein: No, sir.

There were actually allegations of statements we are going to ruin you personally and actions that went to ruin him personally.

This was not just simply derivative from the corporation.

Justice Souter: But none of the ruin occurred, as I understand it, until the corporation went bankrupt.

In other words, there was no direct... the bank, for example, didn't say we're not doing any more business with... with you, McDonald.

As I understand it, all the... all the... leaving dignitary harm aside, all the actual loss was... was as a consequence of the loss to the corporation.

His stock fell, you know, whatever.

But it... it seems all derivative from the corporate loss.

Mr. Lichtenstein: I don't believe so, sir.

And the opposition to the motion to dismiss talked very specifically about the statements to the banks that were specific to John McDonald that hurt John McDonald individually that really was not derivative from the bankruptcy--

Justice Breyer: Do you have an action--

Justice Souter: Well, can you give me an example?

Justice Breyer: --on that in California?

Wouldn't you have an action in the State if somebody goes and deliberately interferes with your credit and so forth?

Mr. Lichtenstein: --Well, I think the action that Mr. McDonald took was just this, the 1981 action, saying that there was a Federal violation, that this was done to discriminate against him, and this seems to fit in with the 1981 cause of action and the purpose of 1981, which is why this case was filed.

Justice Ginsburg: If it fits, it's because of some cases.

So... because this whole area, 1981, didn't take off until Runyon against McCrary.

So we're starting with what?

1976.

So to... to flesh out what that claim is, you must be relying on some decisions of this Court when you talk about dignitary damages.

Mr. Lichtenstein: Well, again, we... I think we could look at Shaare Tefila as... as a good example of the kinds of damages.

This was the Nazi swastika on a synagogue.

Justice Ginsburg: But I thought that didn't go into anything.

That was a two page per curiam, and it was just was there a claim.

And it didn't--

Mr. Lichtenstein: Well, the claim was still... it was certainly not because of any kind of... of privity.

It was damages based on--

Justice Ginsburg: --I thought that that was about does the... does the act cover religion or... or does it cover that situation, or is it limited to race, or does anti semitism count as race.

I thought that's what was all that was decided.

Mr. Lichtenstein: --Well, at that time, that... it said that anti semitism counted as race, but certainly they were able to recover once that threshold was met because of the dignitary harms.

Justice Ginsburg: Well, I don't see anything in the opinion about... I just see the issue before the Court was does this come under the heading race.

Mr. Lichtenstein: My reading of that was... was a bit broader I think.

Also, you could look at cases such as Sullivan where the right not to be discriminated against was compensable for the black family that was not allowed into the club.

So the cases that we have cited--

Chief Justice Roberts: Both Sullivan and Shaare Tefila, of course, though, were 1982 cases.

Right?

Mr. Lichtenstein: --Correct.

Chief Justice Roberts: Not 1981 cases.

Mr. Lichtenstein: Right.

But this Court has said that the language is so similar that they should, for these purposes, be viewed as having the same rules.

And clearly, it would make no sense to have... have different ones.

So they were 1982 claims, but the idea that discrimination in terms of housing should have dignitary claims, as well, discrimination in terms of contract should not is something this Court has never accepted.

Chief Justice Roberts: Thank you, counsel.

Mr. Lichtenstein: Thank you.

Rebuttal of Maureen E. Mahoney

Chief Justice Roberts: Ms. Mahoney, you have 4 minutes remaining.

Ms Mahoney: Thank you, Your Honor.

I'd like to focus on the issue of whether there is any need for a remand.

The district court dismissed the complaint with prejudice, and I think that it's fair to say that at that point, the plaintiff was under an obligation to seek leave to amend if it had any other alternative theory that it wanted to advance in this case.

Otherwise, we're left with the situation where they can see that dismissal with prejudice, litigate up to the Ninth Circuit, and then we litigate here.

We go back down and we keep doing this seriatim.

It would make no sense.

The dismissal with prejudice was proper, and certainly in a 1981 case, despite liberal rules of pleading, you have to identify the contract that was supposedly violated, as well as, you know, the other elements.

Second, I think that if this were a harder case about tortious interference principles, even if it hadn't been waived, I might understand the Court's reluctance to get into it.

But we know from the briefing that the plaintiff has conceded that his claim would not be cognizable under the common law of contract, third party beneficiary, or tortious interference, and that is very plain from the brief at pages, I think, 43 through 46 where they acknowledge that under section 76 of the Restatement, they would not be able to... to recover.

And they say, so what.

This isn't a federalized version of common law of interference.

So given that concession, I think all this Court would have to say is that the alternative theory that wasn't even pled can't possibly state a claim because it... it asks us to go far beyond what the common law did.

Justice Stevens: Ms. Mahoney, may... may I ask you one brief question that I should have asked on direct?

I hope you have time for it.

But supposing a fact situation in which a wholly owned... a... a corporation wholly owned by an African American starts to negotiate with your client, and your client says, we have a policy of not dealing with companies owned by African Americans.

Would the corporation or the individual have a lawsuit under section 1981?

Ms Mahoney: I think the corporation would, Your Honor.

Justice Stevens: You think the corporation would.

Ms Mahoney: Absolutely because they... a refusal to deal... it covers rights to make and enforce contracts, and if... if the defendant said, I will not deal with this company, then I think that they have a right.

And in this case, there was a claim that was brought by the company for... based on... for breach of contract.

Justice Stevens: But not under 1981.

Ms Mahoney: No, Your Honor, but the trustee makes a finding that the... the causation... or reports to the court that causation principles could not be established, and so there was no point in bringing a 1981 claim because he actually found in... in materials that are in the record of the bankruptcy proceeding--

Justice Stevens: But... but in your view, to the extent that racial discrimination might have affected negotiations, that would be an element of the corporation's claim under 1981 rather than an individual claim.

Ms Mahoney: --Yes, Your Honor.

Justice Stevens: Yes.

Ms Mahoney: Because if the... if they were negotiating on behalf of the company, that is the company's right to contract.

It is not the individual's right.

Chief Justice Roberts: And you attribute the shareholder's race to the corporation?

Ms Mahoney: That's what the courts of appeals all do.

Judge Friendly in Hudson Valley Freedom Theater looked at this issue and said that it was the best way to approach this issue, that... that... and explained that it doesn't make sense to impute the corporation's contract rights to somebody else, give them power to enforce their contract rights.

And it wasn't a 1981 case, but it was analogous, and that it made sense to, under those circumstances, impute race, in effect.

And I think that the way that courts have done it is also linked to the word discrimination, which appears in 1981(c).

In... in Jackson v. Birmingham for the... for instance, this Court did find that a... a male coach had been subjected to discrimination on the basis of sex, even though he's obviously not a woman, because it's a form of discrimination.

And I think the courts have looked at that as well.

But this... the... the... all of the exact same issues that are alleged in this complaint were already raised and litigated through depositions and discovery in the bankruptcy court.

And this presents all of the problems that this court addressed in Associated General Contractors about why there's such a strong presumption against derivative claims because here you can't trace the losses.

You have no idea whether or not the monies that JWM would have recovered from Domino's would have been used to pay other creditors or used to do new projects or perhaps given to... to McDonald.

Thank you, Your Honor.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

City of Rancho Palos Verdes v. Abrams - Oral Argument

Fri, 09 Jan 2009 14:49:01 +0000

Case:

City of Rancho Palos Verdes v. Abrams

Media File:

03-1601_20050119-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey A. Lamken

Justice Stevens: We'll now hear argument in the City of Rancho Palos Verdes against Abrams.

Mr. Lamken.

Mr. Lamken: Thank you, Justice Stevens.

May it please the Court:

This case concerns whether Congress, in enacting section 332(c)(7) of the Communications Act, intended to expose local governments and State and local officials to expansive section 1983 liability with the tens of thousands of wireless antenna zoning decisions they must make each year.

Entitled preservation of local zoning authority, section 332 provides for State and local agencies in the first instance to implement specific Federal substantive and procedural requirements, together with preserved State zoning laws, in passing on applications to build or modify wireless towers.

It then provides a highly distinctive, independent cause of action for accelerated judicial review of the decisions, including a short limitations period and mandatory expedition.

That tailored process is sufficiently comprehensive to evidence Congress' intent for enforcement to occur--

Justice O'Connor: Well, Mr. Lamken, it's not as comprehensive as other schemes where the Court said, on that basis, we would not find a section 1983 cause of action, is it?

I mean, it's... it's more spare.

Mr. Lamken: --It... it is unusual in its unique focus on private enforcement, but there was a reason for the focus on private enforcement.

In other provisions of the Communications Act, the Congress chose... for example, section 253, Congress chose to eliminate enforcement at... at the FCC level because it was concerned that State and local governments often wouldn't have enough... excuse me... local governments in particular--

Justice O'Connor: Well, what... what--

Mr. Lamken: --wouldn't be able to... I'm sorry.

Justice O'Connor: --What would you think of a case where the plaintiff alleges that the antenna zoning was the... was caused by racial discrimination against the applicant?

Would there be a 1983 cause of action, do you suppose?

Mr. Lamken: Yes.

That would still be available because the... the section 332(c)(7)(B)(v) only provides for a cause of action for violations of the Communications Act.

Violations of the Constitution continue to be enforceable directly under section 1983.

Section... section 332(c)(7)(B)(v) is comprehensive in the relevant sense in that for every violation of section 332(c)(7), for every person adversely aggrieved, it provides a mechanism for private judicial enforcement.

In addition--

Justice O'Connor: Well, what about... it... it... section 332 speaks of an award of all appropriate relief.

What does that include?

Could it include punitive damages?

Could it include attorney's fees, do you think?

Mr. Lamken: --In that respect, it is indistinguishable... for example, the statute that was at issue in Smith v. Robinson, and it doesn't specify the precise forms of relief available.

In our view in this case, appropriate relief would mean specific relief, the type of relief that is traditionally given on review of zoning decisions and on review of judicial review of agency action.

That's supported by a number of considerations.

I should point out, in the first instance, that in this case respondent never did seek damages, or punitive damages for that matter, under section 332(c)(7)(B)(v) itself.

But that's supported by a number of considerations.

First is the structure of the act, which presents it as a form of judicial review of agency action.

The act is structured much as you have... much as you would when a Federal agency enforces or implements Federal requirements and is subject to judicial review.

The only difference is that Congress swapped in, effectively, State and local agencies with the initial implementers in place of the Federal Government.

In that respect, it shares some of the characteristics of sections 251 and 252 of the Communications Act which are also implemented by local... by... excuse me... by State governments as opposed to the FCC.

Justice Ginsburg: Mr.... Mr. Lamken, the argument has been made that 4 years before the telecommunications act we're talking about was adopted, Congress adopted the Cable TV Consumer Protection Act.

And in that act, it specifically limited the remedies to declaratory and injunctive relief.

Here we face silence.

Isn't that an indication that when Congress wants to limit relief to declaratory and injunctive, it will say so in the... in the measure?

Mr. Lamken: Justice Ginsburg, that... that's an example where Congress, for a broad range of statutes that could be potentially used to enforce the Cable Act, chose to restrict the forms of relief available.

And it is an example, in the words of Sea Clammers, where Congress has made its intent explicit in the text of the statute.

Congress can also by implication limit the forms of... excuse me... limit the mechanism for relief that's available, and that's our position here, that Congress by providing--

Justice Souter: What's the... what's the source of the implication?

Mr. Lamken: --Pardon?

Justice Souter: You say by implication.

Mr. Lamken: The implication... Congress has provided a specific mechanism for judicial relief here, section 332(c)(7)(B)(v) itself, and that is a highly adapted mechanism which includes unique characteristics such as a very short limitations period.

Justice Souter: So... so the... the implication, I... I guess, is that unless it specifically provides for damages, it implicitly does not.

Mr. Lamken: I'm sorry.

In terms of Congress making damages available under 332(c)(7)(B)(v), our view of the damage... then it might... damages are only one of the differences we think that exists here.

But our view is supported by a number of considerations, in addition to the structure of the statute.

For example, appropriate relief is often... is the traditional form of relief available.

In this context traditional relief was always specific relief.

Congress also included a specific savings clause that extends not merely to Federal statutes, but prohibits the impairment--

Justice Scalia: Excuse me.

Where... where are you getting the term, appropriate relief, from?

Mr. Lamken: --This... that comes from this Court's decision in Franklin, that where Congress doesn't specifically identify the specific forms of relief available--

Justice Scalia: All right.

But that's... that's not in the... that's not in the text of this statute, is it?

Mr. Lamken: --No, it isn't.

It is an inference the Court draws from silence.

When the Court... when Congress provides an express cause of action and does not identify the specific forms of relief available, the Court will infer that Congress intended to provide all appropriate relief.

But the term, appropriate relief, is that relief which Congress would have intended, and when the Court is determining that, it takes a look at what the traditional forms of relief are and it will look at things such as the savings clause in 601(c), which expressly says that the statute should not be read, unless it expressly provides, to supersede, impair, or otherwise modify State and local law, as well as Federal law.

And in order to put damages into the statute, if it doesn't provide damages expressly, one would have to impair myriad municipal immunity laws that otherwise protect municipalities and State and local officers implementing zoning requirements from liability.

Finally, the FCC has--

Justice Scalia: And... and 1983 is not subject to that limitation.

Mr. Lamken: --Well, 1983 is expressly preemptive under this Court's decisions, and it is... it would preempt the State laws by its own force.

But we believe that that also supports Congress' decision not to provide... or supports the conclusion that Congress did not intend to provide section 1983 relief here because the effect of making the Communications Act enforceable under section 1983 would be to expand the categories of claims for which... that... those immunities are unavailable, and it would thereby impair those immunities.

Justice Scalia: But are they only immune from damages action or are they immune from suit?

Mr. Lamken: No.

They're generally immunities... immune from damages actions, not from suits.

Justice Scalia: So, I mean, that proves too much because they... the statute obviously intends to eliminate that immunity.

The immunity from suit is... is clearly--

Mr. Lamken: Oh, I think... I think you may have misunderstood.

The immunity is not from suit.

It's an immunity from damages and the impairment would be the immunity from damages.

Section 332 is not designed to impair the municipal immunity statutes, and they are not immunities from suit.

They are generally from damage liability.

The officers are subject to suit because these are subject--

Justice Scalia: --Well, it allows suit against either municipalities or States, State or local governments.

Right?

Mr. Lamken: --Yes.

Justice Scalia: And the States have immunity not just from damages but from suit.

Mr. Lamken: As a constitutional matter, they have an immunity from suit, but--

Justice Scalia: Unless they have chosen to waive it, which--

Mr. Lamken: --Right.

Justice Scalia: --one must assume in this area they haven't.

Mr. Lamken: Right.

Justice Scalia: So you have to regard this provision as intentionally overriding some provisions of State law in... inasmuch as they apply to... to immunity.

Mr. Lamken: Well, first of all, I don't think it would be read to... to override the State's constitutional immunity to suit.

Justice Scalia: No.

That's--

Mr. Lamken: But it would be read to... it would be read to override immunities to suit that exist under State law because otherwise it couldn't be affected.

Justice Scalia: --In for a penny, in for a pound.

Mr. Lamken: Right.

Justice Scalia: If they've... if they've waived--

Mr. Lamken: But I'm not--

Justice Scalia: --If... if you acknowledge that it was intended to affect their immunity from suit, why... why would we suspect that it was not intended to affect their immunity from damages?

Mr. Lamken: --Well, because it would be... it would be a provision with no effect whatsoever if it didn't override immunities to suit.

But I'm not sure there are provisions that are providing for... I mean, that there are myriad damages immunity laws that provide municipalities absolute immunity from suit.

It's fairly common, at least under California and other State law, for municipalities to be subject to suit for review of their... of the actions that they make.

And that is the typical fashion that this... this statute simply incorporated that typical fashion of providing judicial review of agency action.

Another consideration that supports the view that section 1983 has been displaced is that the act provides an entire process for the implementation of the Federal statutes.

It establishes Federal substantive requirements that identifies the agencies to implement them.

It provides Federal procedural guarantees, APA-like guarantees, like the requirement of substantial evidence, like the requirement of a written decision, like the requirement of a decision with a reasonable period of time.

It then follows up with a mechanism, an adapted mechanism for judicial review.

In that sense, it is very much like the statute at issue in Smith v. Robinson.

That elaborate process is particularly significant given the pattern of the Communications Act as a whole.

The Communications Act repeatedly matches specific regulatory requirements such as, for example, the common carrier requirements in 202 and 203, with corresponding mechanisms for private enforcement, such as an action for suit... I mean, an action for damages in court or an enforcement action in the commission in sections 206 and 207.

Justice Scalia: Does this action have to be brought in Federal court?

It says any court of competent jurisdiction.

Could--

Mr. Lamken: Yes.

The action can be brought in State court and often is.

There are about 50 reported decisions that we have found where the suit has been brought in State court.

I haven't seen a particular pattern between the choice, but Congress gave the option.

Justice Kennedy: Would a State court be free to award damages or would that be preempted under the view you take of the statute?

Mr. Lamken: The State... because there's an express preservation of State law in this context, I think that State... States would be free to award damages under their own laws.

They wouldn't... whatever relief is available under the Federal statute would be available under the Federal statute, and State courts wouldn't be free to second-guess Congress' judgment as to what relief should be provided under Federal statute.

Justice Kennedy: If the State court allowed damages... if... if the State system allowed... State law allowed damages, would the Federal court, in an action under this section, be allowed to award damages under that... under the State statute?

Mr. Lamken: Your Honor, I think since the... the provision, the savings clause, says that the statute should not be construed to impair State law... and there are so many municipal immunity statutes and you would only have one construction of the statute... I believe that the construction would be an across-the-boards construction, that this act does not provide damages and you would not vary from State to State.

Justice Stevens: What if the State law authorized the recovery of attorney's fees?

Would they be recoverable?

Mr. Lamken: Pardon?

Justice Stevens: What if the State law authorized the recovery of attorney's fees?

Mr. Lamken: Well--

Justice Stevens: What would you do then?

Mr. Lamken: --If the State law provides for recovery of attorney's fees for State violations, then that would control for State violations.

For violations of Federal law, the... the remedies that Congress chose to provide would control and the States would not be permitted to second-guess the... the remedies--

Justice Breyer: I'm not sure why that would be if you, in fact, see the statute as trying to impose an APA-like structure, saying to the States, you decide the substance, we'll give you minimum elements of form, which helps your position.

Then if the minimum elements of form are not specifically stated in the statute, there's no reason to interfere with the States.

Let them do what they want.

Only those minimum elements are what you can't do.

That works perfectly for you.

Mr. Lamken: --Justice Breyer--

Justice Breyer: It's strongly supported in the history.

It may lose your client the money.

I don't know.

Mr. Lamken: --Well, in fact, California provides a municipal immunity for permitting decisions, and so my client--

Justice Breyer: So then you're only--

Mr. Lamken: --would be fine with your position.

But that is a potential inference.

My... the normal view would be that where Congress provides a... a statute, one would normally presume that Congress intended a particular set of remedies to accompany it.

You could say that the silence is meant to... meant to reflect the fact that Congress knew that these would be enforced in State courts, as well as Federal, and it would allow State courts--

Justice Breyer: --Congress didn't care.

Mr. Lamken: --to use whatever--

Justice Breyer: Congress wanted to substitute a Federal judgment for the judgment of the States where it said so.

And the reason you know that is because that is what is consistent with the purpose of the act and other things are either neutral or negative.

Don't interfere with the State unless you have to.

Mr. Lamken: --That is one of our principal contentions, Justice Breyer, which is--

Justice Ginsburg: And what, Mr. Lamken, would be the normal procedure in the State?

You make an application for a permit to a zoning board.

What is the standard operating procedure under State law?

Suppose we don't have any telecommunications act in the picture.

Mr. Lamken: --The normal procedure is either under a uniform State law or California law.

If you have a... an entity which is... excuse me.

If you have either a planning commission or sometimes there's another entity that does the initial review and makes a determination whether to grant the permit.

It is then appealable either to a zoning board of adjustment... that's the... the model act... or in California, States... localities have the option of having the appeal go to the local legislature.

That appeal is then reviewed... is then determined.

And finally, once you've gone through that process, under California law it's generally reviewable by a writ of mandate, although other... other States provide review by writ of certiorari, by mandamus, or by various other procedures, almost always subject to a short limitations period, almost always short... requiring finality, a final decision, exhaustion through the State process.

Justice Ginsburg: And the remedies being injunctive and declaratory.

Mr. Lamken: A... a form of specific relief.

Generally they have the authority to effectively go in and revise the decision below, but the remedies ordinarily do not include monetary or compensatory relief I should say.

Justice Ginsburg: Are you saying that it's parallel to what APA review of an agency decision would be?

Mr. Lamken: It's very much like that.

The remand rule that this Court normally requires in the APA context is not so strictly observed in the context of... of review of... judicial review of zoning decisions, but it is very much like APA review.

That is what prevails.

Justice Kennedy: It... it seems to me that the 30-day provision is inconsistent with the award of damages, but after I say that, I can't tell you why.

[Laughter]

Mr. Lamken: Well, actually this Court's decision in Burnett v. Grattan actually tells you why, and that is that 30-day provisions, which are typical for on-the-record review of decisions below, are often insufficient to allow somebody to develop a whole new record such as their proof of damages, to make important decisions if they're going to have, for example, a jury trial, or to prepare for discovery.

And that's why 30-day provisions are not entirely uncommon in the area of judicial review of agency action, but they're wholly unprecedented, for the most part that I know of, in the area of tort-like remedies like section 1983.

If I... if there are no further questions, I would like to reserve the remainder of my time for rebuttal.

Justice Stevens: Yes, you may.

Mr. Feldman.

Argument of James A. Feldman

Mr. Feldman: Justice Stevens, and may it please the Court:

Where Congress creates a special cause of action for... for a violation of a Federal law that necessarily carries with it its own features and incidents, Congress' decisions about the appropriate mechanisms for dealing with that violation of Federal law should not be frustrated or overridden by allowing a 1983 action in addition.

In this case, section 332(c)(7)(B)(v), which creates a cause of action for violation of the specific standards in (i) through (iv) is an independent, standalone cause of action.

If 1983 didn't exist, 332(c)(7)(B)(v) would, undoubtedly, still provide plaintiffs with a mechanism to get into court and attain redress for the legal wrongs that they claim.

Where Congress has taken that step and has thought about what the appropriate remedy should be for a violation of a particular Federal statute and has created a judicial remedy, then it would only frustrate--

Justice O'Connor: But it... the statute, though, is silent on the question of damages or attorney's fees, isn't it?

Mr. Feldman: --It is.

It doesn't say anything expressly about either of those things, but I think it has long been--

Justice O'Connor: Can we infer all appropriate relief?

Do we?

Mr. Feldman: --As a matter of damages, I think all appropriate relief would be the standard.

But as a matter of attorney's fees, I think is a good example of why there shouldn't be a 1983 action here because the law is 100 percent clear, from this Court's decision in Alyeska and other cases, that where Congress hasn't provided for fee-shifting, there simply is no fee-shifting authorized.

That's what they intended.

Justice Scalia: Attorney's fees are never appropriate, in other words.

Mr. Feldman: Are never appropriate unless Congress specifically provides for them.

Justice Stevens: But it has provided for them for a 1983 action, and if it's a 1983 action, it takes care of it.

Mr. Feldman: That's right.

Justice Stevens: And this is kind of circular.

Mr. Feldman: I don't think it's circular because I think when Congress created the specific cause of action here in (B)(v), it didn't provide for attorney's fees and therefore intended that attorney's fees not be provided.

If respondent's view in this case were accepted, the... the presumption would be exactly flipped, and Congress would have had--

Justice Ginsburg: Mr. Feldman--

Justice Kennedy: Suppose Congress said specifically 1983 applies.

That's all it says.

Would that carry with it attorney's fees in your view?

Mr. Feldman: --Yes, I... yes, I think it... I think it would.

The question here, though, is where Congress has thought about what kind of remedy it wants for violation of a Federal statute and created a judicial cause of action for every wrong that's... that... that can exist under that statute, then the incidents and features of that cause of action should govern, not the incidents and features of 1983 which almost inevitably and in this case are different.

And attorney's fees is just the best example of that.

If... under respondent's view... when Congress was fashioning this statute, it certainly was aware of this Court's decisions that have repeatedly said that attorney's fees are not available unless they're expressly provided for.

And indeed, elsewhere in the Communications Act--

Justice Kennedy: Well, I take... you... you take the position that 1983 doesn't apply at all.

It's not just attorney's fees.

It's damages.

Mr. Feldman: --That's right.

But it's just an illustration.

There's other differences between the provision here and 1983, but I think the basic point is that where Congress has given thought to the remedy for a particular violation... type of violation of Federal law and has provided for a judicial cause of action, with whatever features and incidents it... it wants, 1983 shouldn't be allowed in.

It should be assumed that Congress didn't want to have its decisions frustrated by also allowing a 1983 action.

Justice Scalia: What about damages?

Justice O'Connor: Do you... do you think that any other provisions of the Communications Act are enforceable under 1983?

I mean, we're talking about 332, but it's a big, complicated act.

Are any of the other provisions enforceable?

Mr. Feldman: I think... I think the same rule would apply to any of the provisions where Congress has specifically provided for a cause of action for the same reason, otherwise Congress when... here, for example, just to return to attorney's fees for a second.

When Congress was framing this legislation, they knew that they weren't giving attorney's fees and this 332(c)(7)(B)(v) would be construed not to give attorney's fees, but not--

Justice Scalia: Well, this is really a more general proposition you're urging upon us then, that whenever Congress creates a cause of action that is... what... in any respect more limited than section 1983, the background action of section 1983 is not available.

Mr. Feldman: --That... I... I think that's correct.

Justice Breyer: No.

How could that be?

Wouldn't it depend on whether... when you look at the particular statute, the particular set of remedies that Congress has included in that statute could be absolutely independent of 1983 or dependent upon 1983 or leaning in favor or leaning against.

It would depend on the particular statute.

Why in general?

Mr. Feldman: I think in... I think the rule would be in general because, first of all, it's not just remedies.

There's other incidents of a cause of action such as statute of limitations, the provision here for expedition, and other things.

And really when Congress has given thought to what remedy it wants for a violation here of (i) through (iv), for a violation elsewhere in the Communications Act of other Federal standards, it shouldn't be assumed that they all... that... to allow a 1983 action would just frustrate Congress' intent in fashioning that particular remedy.

Justice Ginsburg: --Then how would you ever have a statute that... 1983 provides for relief when there's a violation of Federal law, statutory or constitutional.

One of briefs in this very case says that your broad reading means that you were doing away with statute as a basis for 1983.

Mr. Feldman: I... I think that that's completely wrong.

When Congress has created... has recognized a right, as this Court has found is essential for a 1983 action, and it hasn't done anything about providing a remedy for that right, hasn't created a cause of action in court in particular, then that's the function of 1983, is to serve... it provides a cause of action for people who suffer a violation of that wrong, a statutory violation.

But where Congress has given thought to what kind of relief it wanted and it said we want a cause of action with these such-and-such incidents, no attorney's fees, 30-day statute of limitations, expedition, whatever the other ones are here, then it would just frustrate Congress' intent to say, oh, and also you get a 1983 action to undo all of the things that Congress provided for.

Justice Scalia: Well, there... there are two situations.

I mean, one can supplement without frustrating.

I mean, you... you could say that in, you know... in some respects the 1983 will contradict the action that was provided, but one can conceive of a provided action that... that grants relief which 1983 would not grant.

Mr. Feldman: That's right.

And... and I... whatever... I guess the general point would be whatever remedial decisions Congress made, those should be respected, but I would add in this case it's not just... it's a question of attorney's fees, which they would have had to... Congress would have had to do something very unusual here, which is particularly put in this statute no... there shall be no fee-shifting because otherwise you can always go to 1983 and get it.

In fact, even if they had done that in 332(c)(7)(B)(v), respondents would still argue, well, we still have our 1983 action.

Justice Scalia: What... what about damages?

Do... do you take any position on whether the Communications Act provision enables damages to be collected?

Mr. Feldman: We don't have a position on whether it does.

I think there's arguments both ways.

I would point out--

Justice Scalia: You think it's unnecessary to decide this case.

Mr. Feldman: --I think it is unnecessary, and in fact, I think it shows a problem with... a reason why our view, which is if Congress creates a cause of action, that should be respected... why that should be respected.

Under other views, you have to look at the 1983 action and figure out all of its incidents.

You have to look at the 332 action and figure out all of its incidents in the abstract as here, not where... in connection with a particular claim for damages, and then see whether they're consistent with each other.

I think the much better rule would be to say where Congress has created a specific cause of action, that's what it wanted, and whatever you get under that, you get.

Whatever you don't get under that, you don't get.

But 1983 shouldn't be used to... to frustrate Congress' intent and give you things that that cause of action wouldn't to give you a longer statute of limitations, which would be, I think, the case here, to give you... eliminate the provision for mandatory expedition, to have any differences in damages.

Another way to put it would be under the Court's decision in Franklin, this statute gives you any appropriate relief.

All that 1983 could do here... it maybe gives you the same thing which, as far as that goes, it doesn't matter.

But all it could do otherwise would be give you inappropriate relief, i.e., relief that Congress didn't want.

And instead of construing the two statutes in that way, they should be construed harmoniously and in accord with this Court's decisions which have set forth the line of cases where you have a right to get into court in Wilder... I'm sorry... in... in Sea Clammers and Smith against Robinson and said there we want to take Congress' remedy, however simple or complex it is.

It gives you a complete right to get into court and gives you whatever it gives you.

And that should govern.

And then the other line of cases, which is Wilder where... and... where it says... and the Wright against Roanoke where Congress didn't give you a right to get to court... get into court.

In those cases, that's the function of 1983.

The same thing would be true in... in a number of other this Court's cases that have recognized you have a 1983 action when Congress gave you a right and didn't think at all about the remedy because that's the function that 1983 was supposed to serve.

If there's no further questions.

Justice Stevens: Thank you, Mr. Feldman.

Mr. Waxman.

Argument of Seth P. Waxman

Mr. Waxman: Mr. Justice Stevens, and may it please the Court:

In... by its clear text, section 1983 promises redress for the depravation of any Federal right in any, quote, proper proceeding.

And that expansive language, this Court has recognized, dictates a heavy presumption that its remedies apply to all violations of Federal rights, a presumption which this Court has said is rebutted only in the, quote, exceptional case in which the statute that creates the right is accompanied by an enforcement scheme that is, quote, incompatible with or inconsistent with 1983's remedies.

That's--

Justice Souter: Mr. Waxman.

Mr. Waxman: --the background principle.

Justice Souter: Mr. Waxman, it seems to me that the... the best argument we've heard about incompatibility is the one... or at least I think the best... is the one that Mr. Lamken touched on at the tail end of his argument, and that is, he said there's... there's a 30-day provision in there, which in effect says Congress wants this litigation conducted fast and over with fast.

And that is incompatible with a damage action because if you get into a damage action, you are going to get into the panoply of... of damages litigation, including depositions, and... and the one thing you can guarantee is that it is not going to be over expeditiously.

What is your argument?

What is your response to that incompatibility argument?

Mr. Waxman: Well, I think that the way this Court has interpreted incompatibility before... in the two instances in 25 years since Maine v. Thiboutot was decided, the only instances in which this Court has found incompatibility has been where use of 1983 would create an end run around limitations in the statute.

That is, in the... in Sea Clammers and in Smith v. Robinson, you had statutes that forestalled an individual's access to court via an administrative regime and then expressly limited the judicial remedies that would be available once they got there by requiring, for example, only injunctive relief.

Justice Breyer: Well, the other word is inconsistent, and is it... sorry.

Were you... is it inconsistent if Congress didn't want it?

And if that's insufficient to be inconsistent, then here, as I look at the statute, to get out my thinking, I think that it sounds like an administrative law statute.

If I saw the maintenance and cure words, I'd think it was an admiralty statute.

Mr. Waxman: Okay.

I--

Justice Breyer: But I see an administrative law statute.

It sounds like that's the system they're imposing and therefore a system that is not consistent with the administrative law system fails and 1983 seems to fail.

Mr. Waxman: --Okay.

Now I have two points.

I... I don't want to forget these.

I have to deal with the... the question of whether a 30-day requirement is inconsistent and whether damages would be inconsistent with what... with what my colleagues posit as an APA-like administrative review model.

A 30-day requirement is simply a reflection of Congress'... Congress confirming expressly that somebody who... who is aggrieved under the rights provided to him under 332(c)(7) and wants any judicial remedy, whether it's from 1983 or otherwise, has to go to court promptly.

It's precisely what 1983, this Court said in Patsy and Felder, guarantees and requires.

It does not require--

Justice Souter: But it also requires expeditiousness on the part of the court.

Mr. Waxman: --It requires that the court proceed expeditiously and courts can proceed expeditiously where damages are sought or are not sought.

One of the interesting things about damages--

Justice Souter: But do you... do you agree with this much, that if... if damages, in fact, are going to be allowed, what is going to count as expeditious is going to be a lot slower than what is going to count as expeditious if damages are not allowed.

Mr. Waxman: --I don't think that's true.

In fact, I think this case is a pretty good example.

The court separated it... I mean, acting under a requirement of expedition at the request of the city.

This... the court didn't even begin to address this case until 18 months after it had been filed.

But what it said was--

Justice Souter: Okay.

And... and that--

Mr. Waxman: --the first issue--

Justice Souter: --that was a violation of the statute, wasn't it?

Mr. Waxman: --Well, it first issued an order saying, okay, I've construed the statute and I've determined that the statute is violated.

Now we will have a separate proceeding.

Then the city will conduct itself accordingly.

Now we'll have a separate proceeding in order to determine whether damages or attorney's fees are available.

And that is available in any of these cases.

What--

Justice Souter: So they turned the damage issue basically just into a separate remedial hearing at the end of the case.

Mr. Waxman: --It could or could not be, and there may... may be many cases when damages aren't appropriate but--

Justice Ginsburg: I thought that was just to decide in... in the... in the court of first instance... that tail end was not to decide whether in this specific case damages or attorney's fees were due.

But the district court was deciding a question of law, that is, whether in this kind of review proceeding anyone could have damages, anyone could have attorney's fees.

Mr. Waxman: --What he said, Justice Ginsburg, was we'll deal with what other remedies, if any, are available and to what extent in a separate proceeding.

As it turns out, he concluded in an--

Justice Ginsburg: But was not making a rule for this case only.

He was making a ruling of law.

Mr. Waxman: --For sure.

He said that I don't think you're entitled to this because I think that the statute doesn't allow it.

And therefore, he didn't get to this question.

But the point about damages... I think there are two points that are very important they not be obscured.

First of all, the Government... the fact that the Government and the petitioner can't agree on whether the statute itself provides damages relief under the principle of Bell v. Hood and Franklin v. Gwinnett County certainly shows that Congress did not speak expressly on this subject.

Justice Scalia: They... they don't necessarily disagree.

The Government just says the... the issue doesn't have to be reached in this case.

Mr. Waxman: Well, I think... I think that... what the Government says in its papers is they may well be available and what Mr. Feldman... I don't want to misquote him, but he said that under Franklin... he agreed, I think, with what Judge Posner wrote for the Seventh Circuit, which is where no remedies... where no specific remedies are specified... and that's the case here... you apply a rule of judicial implication, announced in Bell v. Hood and applied to an implied right of action in Franklin, to apply that all appropriate relief is available.

And damages are the paradigm.

Justice Scalia: Mr. Waxman.

Mr. Waxman: And the irony here--

Justice Scalia: Mr. Waxman, how do you... how do you get a reading of the 30-day limitation, which is applicable to the cause of action under the Communications Act, sucked into the cause of action under section 1983?

I mean, if the suit is under 1983, it's under 1983.

There's no 30-day limit there.

Mr. Waxman: --I have... I have two different ways to get to that.

First of all, section 1983, by its terms, provides redress in any appropriate cause of action.

It also supplies a cause of action where no other cause of action is available, but by its express terms, it doesn't exclusively limit its remedies to causes of action that are brought under 1983.

Justice Scalia: No, it doesn't.

Mr. Waxman: But more broadly--

Justice Scalia: But it doesn't require you to... to establish a cause of action under some other statute either.

Mr. Waxman: --That's right.

It provides a--

Justice Scalia: It does not at all.

It's... it's self-contained.

And do you know any case where we have read into, or indeed, it's even been urged upon us to read into, section 1983 limitations that somehow come from the statute that was violated and which forms the basis for the 1983 action?

Mr. Waxman: --Well, I don't, but I do know that this Court... first of all, Congress has now enacted section 1658 which provides a... a 4-year Federal default statute of limitations, where... where a statute like 1983 doesn't provide it, but includes an... an introduction that says, except where otherwise provided by Federal law.

And there's certainly nothing in that language that says when you're looking at whether a statute of limitations is otherwise provided by Federal law, you look to the very statute that creates the substantive right that 1983 is enforcing.

And even before that, when your... your decision in Wilson v. Garcia made the point that when you try to figure out what statute of limitations applies to a freestanding 1983 action, there are... there is a tripartite rule of construction that section 1988 requires you to engage in.

And the first part is to see whether there is any, quote, suitable Federal statute of limitations.

Now, in constitutional cases, like the one that was at issue in Wilson v. Garcia or under the Social Security Act, which is what was addressed in Maine v. Thiboutot, there were no express causes of action, much less any express statute of limitations.

And so this Court said you then go to the second rule, which is what's the most appropriate State limitations, as 1988 requires.

But the anomaly of the argument here is we have a background principle that 1983 is available and there is a heavy presumption that it will be available unless it is explicitly incompatible or inconsistent with--

Justice Breyer: Well, that's--

Mr. Waxman: --and--

Justice Breyer: --that's why I'm approaching it differently, and I... I want to get your view on it.

I'm taking the word inconsistent and I'm using that as a guide back into the purpose of the statute.

And once I do that, I find Congress here anxious, I think, to engage in what I'd call cooperative federalism.

They could have run the whole show, but they said we don't want the FCC.

We want each city and town to do what they want, subject to a few minimal procedural requirements.

If that's right, that means all these damages questions are open.

All kinds of things are open, but... and we'll decide them in a variety of ways, maybe deferring to the State, but one thing is true: 1983 doesn't apply because that is a different set of remedies.

Mr. Waxman: --Justice Breyer, this is not the APA model.

This is not a model of administrative review for a number of reasons.

Number one, it is a background... there... there... it is established, for purposes of this case, that this statute creates individual Federal rights and those rights were violated.

And the background rule is uniformly... and this Court has... has... in Owens v. City of Indianapolis and many other cases has reinforced the principle that damages are available and 1983 is available where Federal rights are violated by municipalities, whether it's under the Takings Clause or the Due Process Clause or the Equal Protection Clause or in statutory cases.

What is more--

Justice Ginsburg: Mr. Waxman... Mr. Waxman, one of these provisions gives you an option to go to the FCC, the one having to do with emissions.

Now, if you sought review from the local decision to the FCC, you petition for FCC relief, would the FCC have authority to give you attorney's fees?

Mr. Waxman: --The FCC has said that it does not if you do that.

In... in 2000, when the FCC last reported, one person had chosen to go that route rather than go to Federal court.

It--

Justice Ginsburg: Well, isn't that an incongruity that Congress would say you have your choice?

Complainant, you can go to the Federal agency, the FCC, or you can go to court.

Mr. Waxman: --You can't go to the... excuse me.

I didn't--

Justice Ginsburg: So if... if you have that choice, when you're dealing with the radio emissions, to go the... why would any litigant ever do that?

Why would any attorney ever do that if you don't get fees at the FCC and you do get fees in court?

Wouldn't the presumption be that it would work the same way whether you go to the agency, Federal agency, or Federal or State court, that you're in the same situation as respect to fees?

Mr. Waxman: --The... the FCC alternative for a declaration by the FCC applies to only one of the five rights that are provided here, and even if it applied to all of them, I don't think you could possibly infer that--

Justice Ginsburg: Well, let's take the one, that... that one.

Are you saying no attorney's fees there because you couldn't get them at the FCC, therefore you shouldn't get them in court?

Mr. Waxman: --Absolutely not.

If... if there were an instance in which a local zoning official said, you know, I know I'm not supposed to take radio frequencies emissions into account, but I'm going to, it's denied, I would have the right either to go to the FCC and say, tell them no, or to file an action under 332 and/or 1983 and say that violates my rights.

And actually your example--

Justice Souter: But isn't--

Mr. Waxman: --If I just may finish.

Your example, I think... the example of this particular provision points out that what... the balance of what I was going to explain to Justice Breyer, which is that another reason why this isn't the APA model is that this statute includes in little (i) and little (ii) substantive provisions, not just procedural provisions.

You can't discriminate, to give Justice O'Connor's first example, among providers.

The... that was a complaint in this case.

There is de novo review, it is clear, on those claims.

It's not administrative APA review in any respect.

And in fact, the district judge in this very case, Judge Wilson, says it looks like, in fact, you were discriminated against, but I don't need to reach that because it's clear that there was no substantial evidence.

Justice Scalia: They... they didn't provide for the normal administrative review because they were quite aware that under the State zoning systems, there would always be State administrative review before the issue even comes up.

Mr. Waxman: And this--

Justice Scalia: And so what this provides is what kind of judicial review there will be after the anticipated administrative review before the zoning board and whatever appeal from the zoning board exists.

Mr. Waxman: --I... I have to respectfully disagree.

This Court, in... in Williamson County and Darby and many other cases, has distinguished carefully between final... final action and exhaustion of administrative review or judicial review.

And all this statute requires is that if you are aggrieved by an action or inaction of a State or local government or an instrumentality thereof--

Justice Scalia: Final.

Final action or failure to act is what--

Mr. Waxman: --That's correct.

Justice Scalia: --Final action or failure to.

Mr. Waxman: And final action, this Court has explained, does not import into it exhaustion of either State administrative or judicial remedies.

What it means is that once you have been injured, it's a... it's a ripeness requirement that's familiar under--

Justice Scalia: You haven't been injured until you've exhausted your--

Mr. Waxman: --That is--

Justice Scalia: --You... you really think that when there is a State provision available for review of the zoning board, you can commence an action under 1983 without even going through the administrative appeals?

Mr. Waxman: --I am entirely certain of that, and in fact, the... the local ordinance... I mean, the question of what is final agency action is surely a Federal question, but--

Justice Scalia: This is really respecting the States, which is what the... the purpose of this... of this whole provision was.

Mr. Waxman: --Justice Scalia, when Congress addressed this problem in 1996, as the Government points out in the very first page of its brief and as the legislative history reflects, it was confronting a situation in which intransigent, entrenched zoning authorities were acting arbitrarily to frustrate the creation of a national wireless network.

And it was so concerned about this that the House actually passed a provision that removed this paradigmatic local authority to the FCC.

The FCC was--

Justice Kennedy: Which would be more burdensome?

That enactment or subjecting municipalities nationwide to damages?

Which would be more intrusive and burdensome on federalism--

Mr. Waxman: --I think--

Justice Kennedy: --and the abilities of local governments to function?

Mr. Waxman: --Oh, I think the former, for sure.

I mean, the notion that zoning decisions, siting decisions would be removed entirely from localities is unbelievably intrusive.

And what happened in the conference committee was a compromise was reached whereby Congress' objective was going to be achieved by creating... by leaving it, in the first instance, Justice Kennedy, to local--

Justice Kennedy: Well, I'm... I'm not so sure because you're arguing that even the smallest municipality can be liable for hundreds of thousands of dollars of attorney's fees.

Mr. Waxman: --Well--

Justice Kennedy: And I--

Mr. Waxman: --let me just say this, with respect to the--

Justice Kennedy: --Plus other... plus other damages.

Mr. Waxman: --I think this case, Justice Kennedy... I have three things to say about this.

This case is every bit as... as paradigmatic as the parade of horribles that they suggest.

And here's my proof.

It has been since 1997 that courts have been ruling that 1983 and damages are available under this statute.

There is no evidence in any of the briefs on the other side or any of their amici that there has either been a flood of litigation or inappropriately large awards.

And if that happened, Congress would do... would be attentive to it in the way that Justice Ginsburg pointed out when the local cable authorities came to... came to the very same committees 4 years before and said, we're being hit... there's an express right of action in 555 of the... the Communications Act.

We're being hit with very large 1983 awards.

Please do something about it.

And the very same committees 4 years before enacted a provision that said you may get only injunctive and declaratory relief, thereby creating an incompatibility with 1983, as the legislative history expressly provides.

Justice Scalia: Well, cable... cable media companies may... may have Congress' ear more readily than... than... you know, than the municipality of whatever this is or any--

Mr. Waxman: State and... than State and local governments?

I hope not.

But here's... here's the additional--

Justice Scalia: --But I... I wouldn't put a lot of money on it.

[Laughter]

Mr. Waxman: --The point is that Congress... Justice Kennedy, the point is not that Congress was being inattentive to State and local budgets.

What it wanted to do what was this... the point this Court the addressed in... in Stakura and... and Owens v. City of Indianapolis, which is to enforce a Federal statute through privately enforceable Federal rights, which would include a damages remedy that both provides a deterrent against conduct that had provided entrenched resistance to a Federal program and provide compensation where reasonable and appropriate.

Now, this Court has made clear, with respect to damages, in... in Carey v. Piphus and other cases, that there may be very many cases in which there's a violation of a procedural right but only nominal damages are available.

And in Buckhannon--

Justice Ginsburg: But with respect to--

Mr. Waxman: --If I may just finish this sentence.

And in Buckhannon and Farrar v. Hobby, this Court has... has recognized that in order to get attorney's fees, you have to have substantially prevailed and a court, under 1988(b), may award attorney's fees in its... may award... in its discretion insofar as they are reasonable.

And--

Justice Ginsburg: --Mr.... Mr. Waxman.

Mr. Waxman: --Yes, Justice Ginsburg.

Justice Ginsburg: There is in this legislative record a concern expressed by a Senator from California when there was a proposal on the table to make the FCC the Federal review forum.

And that was rejected, if I understand correctly, because there was a concern that municipalities would have to travel all the way to Washington, D.C. to defend in the FCC's forum.

And Congress did not want to saddle municipalities with the cost of transporting their representative to D.C. Well, that cost would pale compared to attorney's fees that would be awarded.

Mr. Waxman: First of all, Justice Ginsburg, I... the reference to those two Senators... what those two Senators were talking about is not, as my colleague's brief suggests, this provision.

They were talking about another provision of the Telecom Act.

I think it was section 253, but I may be wrong.

But even if that's the case, the fact of the matter is that whether it was going to cost them... I agree.

It would cost... look, a regime in... which left all of these siting decisions to the FCC is breathtaking, and it certainly would impose lots of costs not only on local municipalities to have to come to Washington to justify these decisions, but certainly on the FCC, which would have to send an army out to example... I mean, it would sort of like be the... the television commercial, you know, where the guy is walking around saying, you know, can you hear me now, can you hear me now?

The fact is it made great sense to continue to leave the initial decisions with local authorities.

But Congress had... was frustrated, expressly frustrated with the fact that the prior regime, in which they had let local authorities do it under their normal routines and applying the normal remedies, was not getting the job done.

That was the imperative of this statute.

And in the... in the absence of any evidence, even now 11 years later... or I guess it's 10 years... 9 years later.

In the absence of any evidence of a flood of litigation or inappropriate awards, I think given the very heavy presumption that this Court has recognized over and over and over again, that 1983 is there.

Justice Breyer: That isn't the only--

Mr. Waxman: 1983 is the background principle against which Congress legislates.

And this statute either... neither provides nor excludes any remedies, and all it does is confirm that when you go... when you are injured, you can go to court.

And--

Justice Breyer: --The other... the other harm is there any evidence of because it's... it would also be harmful if local zoning boards, when faced with quite difficult decisions, because the... the antenna... they bristle up and you put them in the wrong place.

They're environmentally harmful.

They... there are a lot of bad things, as well as good things about them.

And of course, it would be a bad impact if we discovered that the zoning boards were erring too much on the side of granting everybody's application, as well as too much on the side of not granting them.

Mr. Waxman: --To be sure.

Justice Breyer: And so I... I don't know how... what the... there won't be evidence.

How can we get evidence on such a thing?

Mr. Waxman: The... the... you... the evidence will be either in the decided cases or by local municipal governments coming to Congress and saying, this is too heavy a thumb on the scale.

But what we know is that if you afford only prospective relief, which is the... the ancien regime that Congress was... that Congress felt wasn't doing the job, it provides no deterrent, no incentive to accomplish what Congress said was--

Justice Kennedy: But I... I don't think we--

Mr. Waxman: --a compelling national objective.

Justice Kennedy: --I don't think we usually think of... of judicial review of agency decisions in the ordinary course as being a deterrent.

Mr. Waxman: We--

Justice Kennedy: It's an opportunity to elaborate reasons.

It's a safeguard.

It's not a deterrent.

And you're saying it has to be a deterrent.

And as Justice Breyer indicates, it... it means that there's... there's another voice in that... in that administrative hearing room.

They're terrified of damages.

Mr. Waxman: --Justice Kennedy--

Justice Kennedy: And it's going to skew the decisions.

Mr. Waxman: --Justice Kennedy, it... under their... under the regulations of this municipality, which is... is perfectly representative, it is final agency action when the city planning commissioner says no, unless you choose to appeal it to the city council.

And there is... not only is there nothing peculiar about applying 1983 damages awards to the violation by a State and local government of an express Federal right, assuming you can prove not only that the right was violated but also that you were really damaged.

It's... I'm not suggesting that... that Congress had damages in mind specifically and only to deter conduct.

You have said in a variety of instances... I mentioned Stacura in particular... that 1983 damages do serve as a deterrent to violation of Federal rights by municipal local officials.

But what Congress had... Congress had to come up with some way to confront this problem in which there were sort of local parochial--

Justice Stevens: May I ask this question, Mr. Waxman?

I don't know if it's really a legal question exactly, but I have the impression that most of the plaintiffs in this type of litigation are well-financed, large companies rather than the typical 1983 plaintiff.

And therefore, you don't need the attorney's fee incentive to be sure these rights are protected.

Is that a correct impression or is it incorrect?

Mr. Waxman: --I... I don't know whether it's a correct impression or not.

Our brief points the Court to an authority that at least 9,500 of the entities that have... have created antennas or tower facilities have 10 or fewer facilities.

And one thing we know for sure is that when Congress enacted the Telecom Act of 1996, it specifically wanted to encourage small operations, start-up companies.

It had specific provisions in the law to give special treatment to small entrepreneurs in order to foster diversity and competition.

But in the event that you--

Justice Scalia: I can't imagine... I can't imagine, Mr. Waxman, that Congress wanted to impose damages plus attorney's fees upon municipalities without even giving the municipalities the chance to correct their mistakes, which is what you're saying.

Mr. Waxman: --Well--

Justice Scalia: You're saying the municipalities' appeal system, which is there for people to take advantage of, is just washed out.

One mistake at the lowest level and you get damages and you get attorney's fees.

That... that is extraordinary.

Mr. Waxman: --Justice Scalia, the... the... 1983... and your jurisprudence shouts this as clearly as it does any other principle... stands for the proposition that it's there unless, in the explicit language of the statute that creates the right, there is a demonstrated incompatibility.

And that's the background rule.

There are many instances in the Telecom Act and elsewhere in which Congress has said you can only get injunctive relief.

You may not get 1983 damages.

I mean, go back to Adickes v. Kress where this Court said in title II of the Public Accommodations act, Congress expressly... expressly precluded damages in order to avoid invocation of 1983.

And I'm not saying that Congress had in mind my client, who is an individual, a sole entrepreneur, who was subject to, I think what the record shows is, prolonged and entrenched intransigence by this particular municipality, any more than it had Judge Posner's example in the Seventh Circuit where it was, you know, Verizon v. the Village of Mequon.

But this Court has recognized, as have the lower courts, that you only get damages if you prove that you really have been damaged.

And in an instance where there's some procedural violation and a remand to correct it, this may very well be the instance of Carey v. Piphus, where the damages are purely nominal.

The agency is given the opportunity.

In this case, the city never said, give us the opportunity to go back and correct it.

And Judge Wilson, a very level-headed district judge, said there's nothing to go back and correct because the only thing... the only reason that the city gave was it didn't like this antenna and tower in the first place.

It... we concede that it makes no difference to anybody which frequencies are being broadcast from this tower that we approved 10 years ago and have no right to modify.

And therefore, there was a substantive violation, not just, you know, you... you may have had substantial evidence but you didn't lay it all out or you gave your reasons at length and orally but not in writing, I'll give you the opportunity to go back.

There's a line of cases this Court has decided under the Social Security Act where there have been remands to correct procedural errors or small errors, and in those instances, Carey v. Piphus says you don't get damages.

And under Buckhannon and Farrar v. Hobby, you probably don't get attorney's fees either.

If there ever is the sort of parade of horribles that they protest about, even a small parade of horribles, Congress will be as attentive as it was in 1992 when the cable--

Justice Stevens: Thank you, Mr. Waxman.

Mr. Waxman: --Thank you.

Justice Stevens: Mr. Lamken, you have about 4 minutes left.

Rebuttal of Jeffrey A. Lamken

Mr. Lamken: I'd like to make only two brief points.

First, that the imposition of the... of damages and fees under section 1983 from a decision in this Court for even good faith mistakes in the implementation of the antenna siting rules, which are often complex and uncertain, would be a welcome mat for extensive and aggressive litigation and the imposition of extensive fees on municipalities which simply cannot afford to enforce their zoning rules, the rules that Congress expressly attempted to preserve in the statute itself.

It is... in this case alone, for example, respondent's most recent estimate of his damages and fees... and this was before he retained Mr. Waxman, I might add... is... is $15 million, essentially the city's entire budget for a year.

And respondent claims to be a relatively small operator.

That sort of... with that sort of liability in an uncertain area of law, very few municipalities could ever afford to stand on their rights to enforce local zoning even when they're relatively certain that they are right.

Section 332(c)(7) is entitled and has one of its purposes as the preservation of local authority.

It should not be construed to provide for that authority's evisceration.

The second point I wanted to hit is that when Congress established the mechanism for review in 332, it provided a very adapted mechanism with an unusual pair of characteristics: a very short limitations period and mandatory expedition.

This Court's decisions in Novotny makes it clear that neither of those requirements can be simply transferred over to section 1983.

Novotny had very similar language, a 90-day limitations period.

The Court did not transfer that over to section 1985(3).

Instead it understood that the general rule, the general Federal principle of law, that in the absence of an express limitations period, that State law would control.

Wilson then confirms that rule, as an interpretation of section 1988, that the governing Federal principle is that State law controls unless there's an express Federal cause of... statute that addresses that particular cause of action.

If there are no further questions, we ask only that the judgment of the Ninth Circuit be reversed.

Thank you.

Justice Stevens: Thank you, Mr. Lamken.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Nelson v. Campbell - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Nelson v. Campbell

Media File:

03-6821_20040329-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Bryan Stevenson

Chief Justice Rehnquist: We'll hear argument next in No. 03-6821, David Nelson v. Donal Campbell.

Mr. Stevenson.

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

6 days before petitioner's scheduled execution in this case, an execution that he had sought and informally requested be... be carried out as soon as possible, prison officials went to him and for the first time told him that to deal with a medical problem that both parties acknowledged exists, he would be subjected to a procedure that would be conducted by State officials, not necessarily medically trained, not necessarily licensed, where they were going to make a 2-inch incision in his arm, cut through fat and tissue and muscle, until they had a vein that they could access for the purposes of inserting a catheter.

Justice O'Connor: Well, presumably at a much earlier date, the prisoner did know that he... he was... he would be scheduled to be executed by lethal injection.

Mr. Stevenson: Absolutely, Your... Your Honor.

Justice O'Connor: And he did know his veins were compromised.

Mr. Stevenson: Absolutely, and as soon as he...

Justice O'Connor: So... so presumably in... well in advance he could anticipate a problem.

Mr. Stevenson: Yes, Your Honor, and he did.

He immediately began contacting the warden at Holman Prison.

He was housed in another facility some 200 miles away.

He immediately began contacting the warden at Holman Prison, who had just been installed, who did not know him, and informed him he had this condition, that they would need to create protocols necessary to deal with it.

The State admitted that they had never dealt with someone in this condition before and began offering all kinds of things that would accomplish this execution.

Let him bring in a physician that can insert a catheter.

Let's get some protocols established so that we don't have any problems.

And for 6 weeks essentially this effort was being made.

He had been previously told that they were going to do this 24 hours in advance, that they weren't going to make this kind of 2-inch incision, and even though he hadn't been assured there would be medical people, he was relatively comfortable with that.

He did not file suit.

It's only 6 days before for the first time that the State announced they would have this kind of invasive procedure carried out by someone who was not necessarily medically trained.

He filed a 1983 action.

I think it's important for this Court's judgment here today.

The district court found that that 1983 action, if it went in Mr. Nelson's favor, would not invalidate his judgment or conviction.

Notwithstanding that conclusion, the district court felt compelled to apply a rule in force in the Eleventh Circuit that effectively shields death row prisoners facing an execution from doing anything that can challenge unconstitutional conditions of... of confinement.

The Eleventh Circuit rule is essentially once you are scheduled for an execution, it doesn't matter that the prison begins to do something and amount to something that... that is unconstitutional.

Justice Scalia: Well, they're... they're not saying that.

They can bring actions that... that challenge unconstitutional conditions of confinement.

He's being kept in a dank and dark cell that's... that's cruel and painful.

The only thing they're saying he can't bring is... is an action that, in effect, says I can't be executed the way the State intends to execute me, that that has to have been brought up earlier.

Mr. Stevenson: Yes, and... and I... I guess that's our...

Justice Scalia: It has... has to be under habeas rather than under 1983.

Mr. Stevenson: Yes.

And Your Honor, I... I guess our position is... is that this action is like the action that you describe.

He is challenging medical treatment, medical procedures.

He doesn't say he doesn't want to be executed.

He's not trying to block his execution.

Justice Scalia: Well, but it's unlike these other actions in this one crucial respect: its effect is to prevent the execution

Mr. Stevenson: No.

I think the effect here was to facilitate the execution.

Mr. Nelson went into court saying, let's just get an order so that my doctor can come in and carry this out.

Let's just get a temporary restraining order on the 2-inch incision which makes no sense.

The... the court... the district court judge says, can't you lawyers work this out?

Mr. Nelson's counsel was ready then and there to effectuate a procedure that would carry out this execution.

And the Eleventh Circuit judgment, Justice Scalia, is actually one that says once the petitioner is scheduled for an execution, it doesn't matter whether it's a conditions of confinement suit as you described, that the Federal courts somehow have no authority to grant relief or conduct review because the execution... the scheduling of the execution somehow divests those courts of jurisdiction.

That's the Eleventh Circuit rule.

They didn't argue here that because his litigation, because his lawsuit is, in effect, an attempt to bar the execution, he loses.

That's the distinction.

What they said here is that because he is already scheduled for execution, it doesn't matter what the conditions of the confinement are, whether it invalidates the conviction and sentence.

Federal courts have no authority to grant relief.

And that's the rule we urge this Court to overturn.

Justice Souter: May... may I get clear on one thing?

Mr. Stevenson: Yes, sir.

Justice Souter: Did he... did his counsel say to the court, the district court, we want under 1983 an order that says admit this man's doctor to the place of execution at the time the State chooses so he can find a way then and there to allow the State to carry out the execution when it wants to do it?

Did he ask for that?

Mr. Stevenson: Well, what he asked for... what... what he... what he put in his complaint was that he had made that offer to the State, and that was in his complaint, that... that the defendant's counsel had authorized or requested the opportunity to bring in a physician to facilitate a review...

Justice Souter: Is that what he was asking for when he went into court?

Mr. Stevenson: Well, what he was asking for is an injunction barring them from doing this kind of 2-inch incision, but yes, he made it very clear in the complaint...

Justice Souter: Was it made clear to the district court that he would be satisfied with the order I have just described?

Mr. Stevenson: Only to the extent... yes, I believe so, Your Honor, because when the district court said, can't you work this out, Mr. Nelson's counsel said, yes, I think we can.

Chief Justice Rehnquist: Did... did he ask for a postponement of the execution?

Mr. Stevenson: He did, Your Honor.

He did, and that was in part because the State was, at least at the point at which this lawsuit was filed in, saying that this is what they were going to do in... in the absence of some kind of Federal intervention.

Chief Justice Rehnquist: What would have been the terms of the postponement that you were asking for?

Mr. Stevenson: I... I think the district court could have basically issued a cease and desist order.

You are enjoined from doing this kind of conduct because it violates contemporary standards of medical decency.

Justice Souter: Would it have been sufficient to say, don't... postpone it until you admit the doctor to be present and get the catheter in?

Mr. Stevenson: I... I think it could have been sufficient to say I'm going to order that his physician be admitted into the facility.

I'm going to order that you accomplish this through the method proposed by petitioner's counsel.

I think all of those things could have been done, but the district court here felt like he did not have the authority to actually deal with this in the 1983 context.

Justice Ginsburg: Was it that... before, Mr. Stevenson, you said that nothing that the prisoner requests, once the date of execution is set, is actionable in 1983.

But I thought that the Eleventh Circuit made a distinction between a proceeding that would require a stay of the execution.

If he says that prior to the execution I'm in... in a dark, dank cell, that would be actionable so long as he's not seeking to postpone the date of the execution, as I understand it.

Mr. Stevenson: And I guess here, Your Honor, what we think is that when the prison waits until 6 days before the scheduled execution... a complaint can only be filed 3 days before the scheduled execution... a determination of whether what the prison is proposing is unconstitutional or not cannot ordinarily...

Justice Scalia: He... he didn't... he didn't know before that that... that this was...

Mr. Stevenson: No, Your Honor.

Justice Scalia: the procedure they were going to use?

Mr. Stevenson: No, Your... he had been told before that they were going to do something 24 hours in advance.

It was only on the Friday before the Thursday...

Justice Scalia: When they're going to do it is not the issue.

It's what they're going to do.

Mr. Stevenson: Well, yes, that's... he was told for the first time on that Friday, 2-inch incision in the arm, not necessarily done by someone medically trained.

That presented a very different kind of...

Justice Scalia: But he... he knew that... that something special had to be done with respect to him because he had these compromised veins.

Chief Justice Rehnquist: Isn't that right?

Mr. Stevenson: Absolutely.

And... and the record reflects that there were repeated efforts on the part of Mr. Nelson's counsel to get the State to... to deal with it.

Justice Scalia: How... how long ago was the conviction for which he was condemned to... to death?

Mr. Stevenson: The conviction was 1978.

The death sentence is 1994.

He spent a lot of years on death row under an illegal death sentence that the Eleventh Circuit overturned in 1993.

Justice Scalia: The crime was committed when?

Mr. Stevenson: In 1978.

The death sentenced imposed here was committed in 1994, and it's worth noting that even then Mr. Nelson was very, very sort of unsure about fighting a death sentence.

He told the judge he wanted a death sentence.

No appeal briefs were filed into the Alabama appellate courts.

The...

Justice Kennedy: Did... did you at any point shape your claim for relief in the alternative, saying we want either habeas corpus or 1983?

Or do we take this case on the assumption that almost everybody agrees it has to be 1983?

Mr. Stevenson: Well, no, it was not styled as a habeas action, in part because the Eleventh Circuit rules would have prevented us from ever getting review in this Court or any other court if it had been framed in that way.

Justice Kennedy: Is that... is that correct?

If... if we had to do this in a circuit with no precedents, could you argue that this would be... could be habeas?

It's not successive because it's... the issue hasn't come up before?

Mr. Stevenson: Well, yes.

There... there certainly... it's certainly true that other circuits, Justice Kennedy, apply this Court's doctrine in Stewart v. Martinez where a claim, an execution claim, not previously ripe, can be subject to habeas review.

The Eleventh Circuit doesn't.

Their position expressed in In re Medina is that if it wasn't in your first habeas, it can't be presented.

Justice Scalia: Well, what does the statute say?

It says it has to be not only not previously ripe... you didn't have the information... but also the statute says it has to show that he was innocent.

Mr. Stevenson: Yes.

And that's why we... we...

Justice Scalia: So why isn't that conclusive here?

I mean, it... it doesn't meet the second condition.

Mr. Stevenson: Well, absolutely.

It's... it's certainly conclusive, Justice Scalia.

It could not be...

Justice Kennedy: Well, of course, that's assuming it's successive.

Mr. Stevenson: That's right.

That's right.

It certainly would not be a successive petition.

What we would be arguing is what this Court has already held, that an unripe execution claim of this sort, of a competency to be executed claim, which this Court held in Stewart was cognizable would be proper.

In the Eleventh Circuit that's not possible.

Justice Souter: But you don't have to go that far, do you?

Mr. Stevenson: We do not.

We do not.

Justice Souter: Because ripeness could be a merely evidentiary matter, whereas in this case, you did not have a claim that you could bring...

Mr. Stevenson: Absolutely.

Justice Souter: at the time.

So this is more than just ripeness.

Mr. Stevenson: Absolutely.

And... and, Justice Souter, I think you're absolutely right.

Here, where you're not trying to do something that invalidates a conviction and sentence, it's not arguably appropriate to be thinking about this in the habeas context.

2241(c) says that to grant habeas relief, the petitioner has to allege that the conviction and sentence is illegal, is in violation of the Constitution.

That's not Mr. Nelson's contention here.

Justice Ginsburg: Would you say... would you be making the same argument if his complaint was not this inch cut but the combination of chemicals?

Mr. Stevenson: No, Your Honor.

I think that's a much... a much harder question because that does, it seems to me, get closer to the execution.

What's analogous to our claim is a claim where the prison says a week before the execution that we're going to and effectively shackle you to a hitching post and not give you any food for 72 hours.

We contend that that kind of treatment would be in violation of the Constitution.

What we'd be trying to block is that treatment, not the execution.

The reality is in this case...

Justice Scalia: Well, I mean, you know, as you know, we've... we've turned down certiorari in... in these cases challenging the type of drug used.

What... what is the difference between, you know, your using a drug that's... that's going to hurt me and your using a catheter procedure that's going to hurt me?

Justice Souter: I don't...

Mr. Stevenson: I think the primary difference, Justice Scalia, is that those are a method of execution cases.

They are challenging the method of execution.

Here we have a procedure that is not even unique to executions.

Justice Breyer: Well, but...

Mr. Stevenson: Venous access can...

Justice Scalia: they're... they're not challenging the method of execution.

If you want to execute me by drugs, they're saying, that's perfectly fine, just don't use a drug that hurts me.

Mr. Stevenson: Well, it's... it's...

Justice Scalia: And just as here, you're saying if you want to execute me by lethal injection, that's fine, just don't use a manner of lethal injection that hurts me.

I find it very difficult to separate the two...

Mr. Stevenson: Well, I guess...

Justice Scalia: categories of case.

Mr. Stevenson: It's not clear, Your Honor, that in all of those cases that they are saying if you want to use a different drug, that's okay.

I think that that's one distinction.

I think the second distinction is that an order... particularly in States that have statutes dictating which chemicals can be used, in those cases it may be easier for a court to find that an order in that case does invalidate the sentence.

Here we have a completely severable procedure.

We have something that is not in any required by the execution.

And... and the State is saying we want to do it this way, and there are 100 other ways that it can be done.

And in fact, it's just the discretionary conduct of the State prison officials that puts us in this situation.

Chief Justice Rehnquist: Well, was it... was it any more than the presence of his own doctor to make the cut that he... he was asking for?

Mr. Stevenson: No, Your Honor, and it wasn't even... he wasn't even insisting on that.

He was prepared to have their doctor come in.

He was promised a doctor when he got to the prison.

He never saw one.

There was never a physical... never a doctor to examine him.

Chief Justice Rehnquist: Well, but this isn't a contract action.

Mr. Stevenson: No, no, Your Honor.

I'm just suggesting that there was... he wasn't insisting on this being carried out in one way.

There were dozens of... of offers of... of carrying this out, including being executed by electrocution, something else that the State rejected as... as an option for him.

Justice Ginsburg: But he did... he did want more than a doctor.

He didn't want this procedure to be used when there was an alternate procedure that would be safer, less painful?

Mr. Stevenson: Yes.

It's our position that this procedure is unconstitutional.

It does not comport with contemporary standards of medical decency.

It's a procedure that is rarely done.

When it's done in the hospital, it's under deep sedation.

That there are all of these alternative procedures that could be done very easily.

A percutaneous insertion would be very easy to accomplish.

There are a lot...

Justice O'Connor: Doesn't that require a cut as well?

Mr. Stevenson: No, ma'am.

It... it would just require a... a needle, a hollow needle, with a wire inside.

And... and they would then access the vein that way.

It wouldn't require the kind of incision and all of the kind of auxiliary support systems.

Justice Kennedy: But that sounds to me more like the mode of execution with the... with the drugs that you said was distinguishable.

Mr. Stevenson: No.

They wouldn't effectuate the injection that way.

They would just actually get access to the vein that way.

And... and this could be done, Your Honor, 24 hours in advance.

It could be done some time in advance.

There was no objection expressed by Mr. Nelson in any of the lower courts to that procedure.

But again, all of these issues we never got to in the district court.

There was never any opportunity to develop facts, to have discussion, to have argument to resolve a basic problem.

Justice O'Connor: If a challenge is brought to the use of lethal injection as a method of execution, how must that be brought?

In habeas?

Mr. Stevenson: Yes.

My position, Justice O'Connor, would be if I'm representing someone, I would put that in a habeas mostly because that's... there is some historical precedent for those kinds of challenges coming in habeas.

I think you are, in effect, saying that the sentence is invalid.

It... it should not be carried out.

Justice O'Connor: This comes close because you say it's unconstitutional to proceed with lethal injection under these circumstances.

Mr. Stevenson: No.

We tried really hard to not say that.

What we say, it is unconstitutional to proceed with venous access in this manner, to conduct medical care in this manner.

It violates recognized standards of medical care.

And that's what we're saying you cannot do.

We have no objection.

Mr. Nelson doesn't object to lethal injection.

He doesn't even object to venous access.

What he objects to is some kind of inhumane cutting by people who are not qualified or competent to do that.

And like any other condition of confinement, the fact that he is near an execution, the fact that he has been scheduled for an execution shouldn't exempt him from protection if the State at the last minute announces that this is what they intend to do.

This has not historically been a big problem.

There have been over 700 executions in this country involving lethal injections.

Justice Breyer: What is... as a lawyer who works in this area, what do you think is the correct procedure that should be followed in respect to Ford mental incompetence claims or general challenges to a whole big method of execution not just this individual one which arise for the first time after termination of a first habeas?

Mr. Stevenson: Well, Justice Breyer, I... I think you're right.

There is a problem.

We do have a gap in the law in that the Congress did not contemplate the possibility of execution claims that arise just as you describe.

In the competency context, this Court created a rule, which I think is a very functional rule.

I think it is a very appropriate rule.

If the facts supporting that claim were not ripe previously, I think that... and it's a legitimate execution-related claim, I think the petitioner should be able to get access in front of the district court judge that reviewed his initial habeas petition.

I think that's the way we should deal...

Justice Breyer: Yes, that may be.

So what's the procedural route?

That's why I'm curious.

Mr. Stevenson: Yes.

Justice Breyer: This fits into a bigger picture.

Mr. Stevenson: Yes, yes.

Justice Breyer: And I'd like to be clear about the bigger picture...

Mr. Stevenson: Yes.

The big...

Justice Breyer: in your opinion.

Mr. Stevenson: Yes.

The bigger picture in my judgment, Your Honor, would be it would be filed as a habeas petition in front of that district court judge relying on this Court's...

Justice Breyer: And... and you say that it would be... count as a first habeas.

Mr. Stevenson: Well, it would be part of the first habeas.

It would...

Justice Breyer: Well, what the... what the response to that is it's very hard to reconcile that with the language of the statute.

Mr. Stevenson: Well, what the...

Justice Breyer: And... and also they add that the right route is to file an initial habeas here or, alternatively, to go to the State court, at least if that's still open.

Mr. Stevenson: Yes.

And...

Justice Breyer: In which case it raises no constitutional question about blocking habeas because we could review the State court.

I'd just like briefly your views on that kind of an argument.

Mr. Stevenson: Yes, sir.

Well, in Stewart, what this Court did was resolve it by saying, no, Congress did not intend to preclude petitioners with legitimate execution claims from getting that.

This Court has created those protections.

I think...

Justice O'Connor: Was there... was there anything open to this petitioner in the State for an application for relief here?

Mr. Stevenson: No, Justice O'Connor, unfortunately not.

In Alabama you cannot present a second post-conviction petition even on claims that... that turn on new evidence.

On execution claims, on new evidence claims, you have no remedy.

And consequently, we would need access to the Federal courts to protect Mr. Nelson from the kind of claim that we're presenting here or even in the kind of claims that Justice Breyer is suggesting.

And that's why we do think there is a problem.

It's not presented precisely in this case.

There is a problem with the way in which there are these execution claims.

If some State says tomorrow, we're going to change our method and from here on out, we're going to stone people to death or beat them to death with baseball bats, and this Court believes that that is unconstitutional, in a place like Alabama, to the extent that... that the Court construes that as an execution claim... and that's the only way they could carry out the execution, so it might be said that that would invalidate the conviction and sentence... we would need a rule.

We would need to find some way to get access to courts, and we currently don't have it.

Here...

Justice Scalia: Your... your claim here is an Eighth Amendment claim, cruel and unusual punishment.

Mr. Stevenson: Yes, sir.

Justice Souter: Right?

Justice Scalia: But... but you say it just doesn't comport with what?

The... the most advanced medical procedures?

Mr. Stevenson: No, Your Honor.

Justice Scalia: Anything that does not comport with the most advanced medical procedures is cruel and unusual punishment?

Mr. Stevenson: That...

Justice Souter: I mean, you know...

Mr. Stevenson: No, I hear you.

I hear you.

Justice Scalia: this man is... is looking death in the face.

Mr. Stevenson: Sure.

Justice Scalia: And... and the crime was committed over a quarter of a century ago for which he was... he was condemned.

And... and what he's really concerned about is... is an incision?

I find it difficult to contemplate that this constitutes cruel and unusual punishment.

Mr. Stevenson: Well, Your Honor, it's not our position that he is seeking and... and demanding the most advanced procedures.

What I think he is objecting to is something that we regard as fairly barbaric, to have a correctional staff member come back with a scalpel, make a 2-inch cut in his arm, cut through fat and tissue to get to a vein with no assurances that that person knows what they're doing, violates the basic standards of medical decency.

And it's not just a cruel and unusual punishment.

This Court has created a line of cases under Estelle v. Gamble that talk about deliberate indifference to serious medical needs.

This is a medical care case.

Yes, he's in prison.

Yes, he's on death row.

Yes, he's forfeited some of his basic expectations, but he hasn't given them all away.

He's still entitled to be treated with some regard.

Justice Scalia: You're saying it's... it's not the Eighth Amendment.

You're saying it's a medical care case.

Mr. Stevenson: No.

It's... it's both.

We... the complaint raises both the cruel and unusual theory and a deliberate indifference theory.

Both are alleged in the complaint.

Chief Justice Rehnquist: It just doesn't fit under deliberate indifference somehow.

It's a little bit like the case that the court of appeals decided that you couldn't use a lethal injection because it hadn't been approved by the FDA.

Mr. Stevenson: I... I agree, Mr. Chief Justice.

I think it... it fits more in the cruel and unusual category because it seems so pointless to be doing it in this way.

However, for all of this time, there... there was no protocol.

There was no response.

There was no, in effect, effort by the State to deal with this problem and that's why we... we made that allegation of deliberate indifference as well.

And the district court could make a determination that says, no, following this case... this line of cases, we... we can't make that determination.

But here, we never got to any of this.

We didn't basically have an opportunity...

Justice Stevens: But your deliberate indifference claim is also an Eighth Amendment claim, isn't it?

Mr. Stevenson: Yes, sir.

Yes, yes, yes.

That's correct.

And so we're still dealing with this... the Eighth Amendment universe.

But again, the district court was precluded from getting to any of this.

If the State wants to come in and say, we think this is silly, we think it is not appropriate for the Constitution to create these kinds of protections for these kinds of prisoners, the district court can make a finding that says, I agree.

What happened here, however, was the district court was precluded from ever even engaging in discussion about this issue because of this rule that, in effect, blocks people on death row facing execution and enforcing basic constitutional protections.

And that's what we think is objectionable.

There are several hundred executions that have taken place, 733, lethal injections that have taken place, where this has not been a problem.

This is an... an unusual medical problem.

It's not a medical problem that usually presents itself, but it presented itself for the first time in Alabama.

It's only come up a few times.

But we do think there ought to be some constitutional protection.

Chief Justice Rehnquist: When... when did Alabama switch from electrocution to lethal injections?

Mr. Stevenson: That happened in July of 2002, after Mr. Nelson had already completed his Federal habeas procedure.

Chief Justice Rehnquist: And before that, electrocution was the only option?

Mr. Stevenson: Yes, sir.

Unless there are further questions from the Court, I'd like to reserve the rest of my time.

Argument of Kevin C. Newsom

Chief Justice Rehnquist: Very well, Mr. Stevenson.

Mr. Newsom, we'll hear from you.

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

I'd like to make three points this morning.

I'd like to first discuss and to convince the Court that a challenge to a State's means of gaining venous access for purposes of accomplishing a lethal injection, a challenge that runs to the very core of the execution process, is indeed tantamount to a challenge of the imposition of the sentence itself and subject to habeas corpus restrictions.

I hope also to... to be able to address the remedies issue, which we were discussing with Mr. Stevenson at the end of... of his argument.

And third, I'd like to discuss the practical consequences of a decision in Nelson's favor in this case, which I think will be not only to unleash in Federal courts a torrent of... of new challenges to all manner of State execution procedures, but also in the process, fundamentally to undermine Congress' intent to stem the tide of what President Clinton in his signing statement called endless death row appeals.

Justice Souter: On the... on your first point, are you going to address directly whether this is second or successive?

Mr. Newsom: I can certainly address that, Your Honor, and I can address it now, if you'd like.

Chief Justice Rehnquist: Yes.

Mr. Newsom: We simply cannot agree with... with... with Mr. Stevenson's contention here that this is second or successive, and I would like to point out to the Court that I... that I think...

Justice Souter: He says it's not.

Mr. Newsom: I'm sorry.

That... that is not second or successive.

I'd like to point out to the Court that I think in fact there is a concession on the record in this case that it, in fact, is second or successive.

Mr. Stevenson, of course, has... has given the Court essentially a two-page footnote in his brief trying to walk away from...

Justice O'Connor: You mean if it's treated as habeas.

Mr. Newsom: Correct.

Our... correct.

Our position, of course, is that this... that this sort of challenge is fundamentally a habeas challenge, and in answer to Justice Souter's question, I think that there is a concession on the record.

Of course, this... this issue, the second or successive issue, was not raised in the lower courts.

It was raised for the first time in...

Justice Souter: Well, it wasn't raised because he brought 1983.

But, I mean, as I understand the... the application of the Alabama rule, 1983 was ruled out because this either should have been brought in habeas or if it had been brought in habeas, it would have been barred under AEDPA, and it would have been barred under AEDPA, because it was second or successive.

So I think regardless of... of how we analyze it, we've got to get to that point.

Mr. Newsom: And our position certainly is, Your Honor, that this would have been barred as second or successive.

I think Justice Scalia really hit the nail on the head.

It is... Mr. Stevenson, in his argument, just has not done business, I think, with the textual and structural gymnastics required to... to make this petition anything other than second or successive.

His position, in essence, is that any claim that is new, in the sense that it could not have been brought before, is by definition not second or successive.

Justice Souter: Well, isn't that a possibility?

In other words, one of the things we've got to do is... is give effect to the... to the AEDPA text.

We can give effect to the... I'm not saying that we should read it this way, but we could give effect to the AEDPA text if we say that regardless of whether a claim was ripe or not as a factual matter, so long as there is new evidence, whatever new means, the evidence is... is not going to entitle him to relief unless it satisfies the... the innocence prong at the end of the test.

We could say that and at the same time say, all right, that's how we give effect to AEDPA.

But if there is something more than ripeness, which makes the difference between bringing the claim and not bringing the claim, then that goes to whether we should regard it as second or successive.

There is something more here because this is a claim which simply did not arise.

He could not have pleaded this claim at any point prior to the conclusion of... of his habeas, and for that reason, we should interpret second or successive as not barring this because otherwise we would have a universe of claims, assuming they are proper habeas claims, that could never be brought even though they state a constitutional claim.

Mr. Newsom: My own sense, Justice Souter, is that that might just be slicing the bologna a little thin.

Congress... the... the point of section 2244 in my view is certainly to get at claims that, for whatever reason, could not have been brought earlier, and I think the...

Justice Souter: But that's... that's fine, but I mean, that's a conclusory statement: for whatever reason

What I'm suggesting to you is that this is a good reason to say that the term, second or successive, does have some limiting effect.

Mr. Newsom: Perhaps, but I think that we are coming awfully close simply to... to reading the limitations that Congress imposed on these sorts of petitions out of the statute.

Justice Scalia: If Congress felt that way, they simply wouldn't have added the second condition.

Mr. Newsom: That's certainly the position that...

Justice Scalia: They would have just said the facts... the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.

That describes a situation in which there's no way that the person could have brought the constitutional claim.

Mr. Newsom: That's...

Justice Scalia: But Congress didn't leave it there.

It went on to add (ii), the facts underlying the claim would... would show that the applicant is not guilty of the underlying offense.

Mr. Newsom: Which is exactly the point that I'm trying to make about stripping out the limitations.

In section 2244...

Justice Souter: Except that to... in order to make that point, you have to assume that Congress was adverting to this problem, and you have to assume that the words, second and successive, could... could simply have been... or the word subsequent could have been inserted in place of second or successive, which in fact is... is a set of phrases that... that are terms of art.

Mr. Newsom: Well...

Justice Souter: So I think... I think the argument is a stretch.

Mr. Newsom: It... it... I... I think it is not the case, Your Honor, that... that second or successive is a term of art in the sense that... that AEDPA in section 2244 merely incorporates the old abuse of the writ doctrine as... as this Court made...

Justice Souter: It doesn't necessarily incorporate the old abuse of the writ doctrine, but it seems to me that it does allude to a body of law by which we made... because there was no other law involved, we had to draw conclusions as to whether it was appropriate or not appropriate to bar this claim.

That's the kind of art that those words plug into.

If they did want to plug into that, all they had to use was a neutral word like subsequent.

Mr. Newsom: Again, Your... Your Honor, I... I feel like clearly I'm not convincing you, but I think that... that we are... that the Court would be coming awfully...

Justice Souter: Convince the others.

Unidentified Justice: [Laughter]

Mr. Newsom: that the Court... the Court is certainly coming awfully close to simply stripping out the limitations on the statute...

Justice Scalia: What... what should happen?

Isn't... isn't (B)(i) a description of what our prior successive habeas...

Mr. Newsom: The... the...

Justice Scalia: law was?

Mr. Newsom: The Court...

Justice Scalia: The first condition alone: the factual predicate for the claim could not have been discovered previously through the exercise of due diligence

Mr. Newsom: That's absolutely right, and that...

Justice Breyer: Isn't that a fair description...

Mr. Newsom: that's the...

Justice Scalia: of what our prior second or successive law was?

Mr. Newsom: I... I...

Justice Scalia: And Congress rejects that by adding to it a new... a new number (ii).

Mr. Newsom: Precisely.

Justice Scalia: So it's impossible to say that it was... it was simply embracing our prior law.

Mr. Newsom: Which is precisely the point we tried to make in our brief, that under...

Justice O'Connor: Well, so can it be brought as a 1983 action?

Mr. Newsom: I don't think it can, Your Honor, and... and I...

Justice Scalia: And why not?

Mr. Newsom: I hope I can convince why it can't.

I'd like to start by addressing that position with Mr. Stevenson's concession here this morning that he has reiterated, that the chemical composition claim indeed is subject to habeas corpus restrictions.

Of course, he seeks to distinguish his own claim from the chemical composition claim on the basis, he says, that his claim does not challenge the sentence itself, but merely a separate and unnecessary procedure.

But the procedure he challenges is a procedure for gaining venous access.

It goes without...

Justice O'Connor: Well, there are other ways to do it...

Mr. Newsom: Well...

Justice O'Connor: is his point.

And it is a little curious that the State isn't willing to talk to the prisoner's counsel about considering one of the other ways of doing it.

Justice Breyer: Why is that?

Mr. Newsom: Well, let me just... if I could answer in two parts.

First, I think frankly that... that on the record in this case, he's just not right about that.

The record at pages 91 and 93 of the joint appendix makes clear that the specific procedure that he has challenged here, this cut-down procedure, will be used only as a last resort in the event that other means of gaining venous access...

Justice O'Connor: Well, does that mean that... what is the description of the other?

Justice Breyer: The...

Mr. Newsom: The percutaneous central line placement.

Justice O'Connor: Percutaneous.

Is that something the State is prepared to use first?

Mr. Newsom: By all means.

And that's part of the irony of this case.

Justice O'Connor: And you make that assurance to us today.

Mr. Newsom: Oh, absolutely.

And... and in fact, the... the affidavits that we filed make that assurance.

Justice Breyer: That will be attempted.

Mr. Newsom: Yes.

And... and let me just be clear that... that the State, of course, has outlined a three-step process in this case.

Steps one and two are a central line placement in the femoral vein and a central line placement in the jugular vein in the neck.

Both of those, in essence, are percutaneous central line placements.

So the parties are in agreement here that the first two procedures attempted should, in fact, be percutaneous central line placement.

This cut-down procedure comes into play only in the event that those two procedures fail and as a last resort must be used to accomplish the sentence.

Justice Stevens: Are you sure, Mr. Newsom...

Mr. Newsom, can I ask you a... a hypothetical question?

Because... assume there's merit on the... to the... assume... assume you have a case in which a week before the election... the execution the State tells the inmate that they're going to hang him up by his thumbs and beat him with whips until he dies.

And he never expected that.

What is his remedy in the... in your circuit and in Alabama for trying to stop that?

Mr. Newsom: Well, the important point here... and I...

Justice Stevens: If... if any.

Justice Breyer: Is there a remedy?

Mr. Newsom: Sure, absolutely.

And I can't agree, of course, with Mr. Stevenson's description of Alabama law.

I think that there very clearly are remedies in the State courts, and his argument essentially asks the... this Court to ignore those... the entire State system.

With respect to two of the remedies...

Justice Stevens: What would the remedy be in Alabama?

It would be a habeas corpus proceeding?

Mr. Newsom: Well, he is, of course... I... I should just be careful about how I answer this question.

There is an Alabama procedure called a rule 32 petition which is... is, in effect, a... a State habeas petition to challenge things like this.

And his... his position in his reply brief is that... that a rule 32 petition would have been time barred.

That may be true now, but it was not true as of the time that he filed this petition.

Justice Stevens: Well, let's assume he... assume he's denied relief in the Alabama courts.

What can he do?

Can he get into Federal court?

Mr. Newsom: May I just...

Justice Breyer: And if so, how?

Mr. Newsom: May... may I continue with the Alabama courts just on a minute because that's not... that's not... I'm not done with the Alabama courts, in essence.

I mean, there... there are other remedies that we've outlined in...

Justice Ginsburg: But you... you said if this happened today, that rule 32 procedure would not be available.

Mr. Newsom: I think very arguably.

It comes down frankly to how you... at... at what point that the statute of limitations begins to run.

Our position, of course...

Justice Scalia: The law wasn't changed.

You just say more time has gone by, that... that he could have brought a rule 32 at the time, but he can't now because more time has gone by.

Is that your point?

Mr. Newsom: Rule 32 statute of limitations is a... is a 6-month statute of limitations that begins running at the time new... a new factual predicate is discovered.

Justice Breyer: I see.

Mr. Newsom: That... that... if... if the statute began to ran... began... began to run, as... as we would say, on August 19th of 2003, when the record at pages 25 and 26 of the joint appendix makes plain that he knew that a cut-down was a possibility as a means of gaining access to his veins, then yes, that statute has expired.

If, as Mr. Stevenson has pointed out to the Court today, that statute began to ran not... began to run... why do I keep saying that... began to run on October 3rd of 2003, then the truth is he has 4 or 5 more days to file that rule 32 petition.

But I want to get to the other remedies, if I can.

Justice Stevens: Can he... can he get a stay?

Well, I'm not really so much interested in the State remedy.

I assume that an Alabama judge says it was a terrible crime, he deserves that punishment.

And now what does he... can he get into Federal court?

Mr. Newsom: He can get into...

Justice Stevens: And if so, how?

Mr. Newsom: He can... of course, by all means.

This Court retains the discretion, as it always does, to grant in an extraordinary circumstance an original writ of habeas corpus.

And I...

Justice Stevens: Apply for an original writ in this Court?

Justice Souter: That's his remedy?

Mr. Newsom: Well, not...

Justice Stevens: If... if that's not the remedy, is there a remedy in the district court in Alabama?

Mr. Newsom: There is not I think a remedy in lower Federal courts.

But I should just emphasize that this Court has... has discussed a case very similar to this and dealt with a case very similar to this in Allen v. McCurry where the Court refused to indulge...

Justice Stevens: Well now, if there is no remedy in the Federal district court, why should there not be a 1983 remedy?

Mr. Newsom: Well, because our... our position, Your Honor, is that 1983 is not intended to be used to fill the gaps in the remedial scheme that Congress has specifically set up in the habeas statutes, that instead section 1983 deals with different kinds of claims.

Justice Stevens: Do you think AEDPA amended 1983?

Mr. Newsom: No.

But the point is, of course, AEDPA does not have, in effect, an integration clause in it that... that precludes review of all... under all other statutory sources of review.

But this Court's decision...

Justice Stevens: If AEDPA had never been passed, would there be a remedy under 1983?

Mr. Newsom: No.

I think then it... then it clearly... it's a... it's a habeas petition however you... however you view it, and... and our...

Justice Stevens: If the only thing... say it's a person who's not on death row who's going to be subjected to this kind of treatment for 6 days.

Would he have a remedy under 1983?

Mr. Newsom: To be sure.

And that I think is a... is a categorical distinction.

I don't disagree with Mr. Stevenson that... that a... that a cut-down occurring for purposes of venous access, wholly divorced from an execution, is indeed a valid conditions of confinement claim.

But this simply is not a conditions of confinement case.

This is, to be sure, a procedure of... the means of gaining venous access for the purposes of... of carrying out a lethal injection.

Venous access, of course, is a necessary predicate, as Nelson has acknowledged in his briefing in this case, to... to the...

Justice Kennedy: You were going to... you were going to tell us that, you know, the sky is going to fall if we find that this is 1983.

Mr. Newsom: I think it will fall pretty hard, Justice Kennedy.

I think that if... if this Court concludes that... that Nelson in this case can... can challenge this... this cut-down as a means of gaining venous access, then the... the lower courts will be inundated with... with challenges to all manner of State execution procedures just as this Court was inundated with challenges following...

Justice Breyer: Well, there are a lot of ways to deal with that.

One, you could say on the merits, if they're not valid, they're not valid.

Mr. Newsom: That's...

Justice Breyer: If they are valid, why shouldn't they be able to make it?

Mr. Newsom: Well, that certainly is one way of... of dealing with the problem, Your Honor, but...

Justice Scalia: Or there's the equitable problem...

Justice Breyer: How long do the appeals take?

Mr. Newsom: I'm sorry.

Justice Scalia: The district court says it's not valid.

Get out of here.

Then there's appeal to the court of appeals and then certiorari here.

Justice Breyer: How long does it take?

And suppose in a case where there is whips and so forth, he happens, by the way, actually to have a valid claim because they're going to be tortured.

All right.

Now, you're saying there's no remedy for such a person.

Mr. Newsom: In answer...

Justice Breyer: And indeed, the reason there's no remedy is because the courts are unable to use their normal rules to prevent abuse of process.

Mr. Newsom: Let me try to answer these various questions in order, if I can keep up.

With respect to your first question, I think that to be sure, there is... the... the district court can always reject the claim, but the problem is that when these claims come in at the last minute and the complaint is chock full of... of inflammatory language, then the district courts I think in... in many cases will feel virtually coerced into granting the stay.

And the stay itself is... is an imposition or an impediment to the State's imposition of the sentence.

Justice Breyer: But there's nothing in the language.

I mean, as I read the language of 1983, it says there will be an action, if I'm subject to the deprivation of a right secured by the Constitution, which is what his claim is.

So it fits within the language.

Mr. Newsom: To be sure.

Justice Breyer: And there's nothing in the habeas statute that suggests it fits because habeas is when you're challenging a custody in violation of the Constitution.

So the habeas language doesn't apply and 1983 does apply.

And there's nothing in Preiser that suggests it fits because that's where in fact we're talking about a challenge to fact or duration, and he's not challenging the fact and he's not challenging the duration.

And there's nothing in Heck v. Humphrey because it talks about necessarily implying the invalidity of the conviction or sentence, and he's not talking about the conviction and he's not talking about the sentence that was given in the judgment anyway.

All right.

So how is it we get this claim which risks people who might have a valid claim not getting into court...

Mr. Newsom: Okay.

Now...

Justice Breyer: into the language of any prior case or the statute itself?

Mr. Newsom: Bear with me.

Section 1983, to be sure, does not exclude this claim as a matter of its text, but this Court in Preiser did make clear that... that where a... where an action falls within the traditional scope of habeas corpus, that section 1983 must give way.

When there is that intersection, section 1983 must give way.

Now, in answer to part two of the question, to be sure, the habeas corpus... the... the specific language of the habeas corpus statute talks in terms of custody, but for more than 100 years, this Court has dealt with challenges to death sentences in habeas corpus petitions.

And indeed, in Your Honor's opinion for the Court in Lonchar, this Court said that... that...

Justice Breyer: You're right about that.

Mr. Newsom: Bear with me.

Citing Gomez and... and reiterated that habeas restrictions apply to suits challenging the method of execution regardless of the technical form of action.

Justice Ginsburg: Gomez was 10 years and a claim that could have been brought much earlier.

As was just explained to us, this claim could not have been brought until 6 days before the scheduled date of execution because it was only at that point that he... that he knew about this.

So I don't think that Gomez...

But I did want to ask you something you said that seemed to me inconsistent with what... what Mr. Stevenson told us.

You said that it was only the... they... they agreed on what would be the first steps and that incorporated the percutaneous.

I thought we were told by Mr. Stevenson that, no, everybody agreed on what the first procedure would be, but you then went immediately to the cut-down and they didn't.

There was an intermediate step that you don't have in your protocol that they said would have been more respectful of this man's right to have a painless death.

Mr. Newsom: I think that's just not quite right.

Percutaneous central line placement simply means central line placement through the skin.

Justice Ginsburg: But was there... whatever labels you use, was there something else that they asked for that you were not willing to give?

Mr. Newsom: They... I'm sorry.

Go ahead.

I didn't mean to...

Justice O'Connor: Yes.

Justice Ginsburg: I thought I understood from the briefs that there was the first step.

Everybody agreed if could do it that way, it would be okay.

And then there was something else that the defendant said should have been done before you would ever get to the cut-down, and if you got to the cut-down, certainly you'd want to have proper medical personnel there to administer it.

Mr. Newsom: The point that I'm trying to make is that... that in fact those first two... what the... what the plaintiffs asked for in this case was indeed percutaneous central line placement.

That's the label not that I'm giving it but that they gave it.

That's the procedure that they wanted, and now I'm trying to tell the Court that... that percutaneous central line placement is a central line placement through the skin which options one and two, central line placement in the thigh, central line placement in the neck, are indeed both percutaneous central line placement.

So, no, there is... I think there is no disagreement here that percutaneous central line placement is the preferred method and will, in fact, be used, a cut-down to be used only if actually necessary.

Justice Ginsburg: I'll ask Mr. Stevenson to clarify that.

Mr. Newsom: Fair enough.

And if I can, just in answer to the... to the first question that you were asking me, my... the point that I was making about Gomez at this point in the argument is not necessarily, although I'd like to make this point as well, if I have time, an abuse point so much.

We certainly recognize that the abuse at issue in Gomez is in some sense more... more egregious than the abuse here.

The point I was simply trying to make in answer... in answer to Justice Breyer's question was that this Court in Lonchar pointed to Gomez for the proposition that habeas rules apply to method of execution claims without respect to what label is placed at the top of the pleading.

Justice Breyer: It wasn't an issue in that case, was it?

I was simply describing what happened.

I mean, it was true...

Mr. Newsom: Accurately describes.

Justice Breyer: in that case it was... yes, accurately described it.

Nobody challenged it.

So I wouldn't think that's terrifically strong precedent for the proposition that that is what should have happened.

Mr. Newsom: Well, I think... I think it is fairly clear, Your Honor, from Gomez and Lonchar, read together, that method of execution...

Justice Breyer: But is there anything other than... other than... Lonchar, which is describing the posture of the case as it appeared here on a different issue?

Justice Scalia: I thought we had a lot of cases that... that say you can bring habeas to challenge not only...

That's what I want to know.

Justice Breyer: I want to know which are the ones...

Chief Justice Rehnquist: Let's go one at a time.

Justice Scalia: Go ahead.

I thought that it... it was our law that... that you can bring a habeas action to show that you are not guilty of the sentence, which always seemed to me a very strange formulation, but it's... it's been done in a lot of cases.

Mr. Newsom: I think it is unquestionably correct, Justice Scalia, that this Court has held that habeas is an appropriate vehicle for a method of execution claim or otherwise.

And my point in answer to Justice Breyer is I think that this Court's decisions in Gomez and Lonchar, read together, make... come pretty close to saying that it is the appropriate... the appropriate vehicle for challenging a method...

Justice Breyer: So those are the two cases which you feel are the strongest support for you.

Mr. Newsom: The strongest support I think, yes, for the... for the fact that a... that a habeas... that habeas is... is the appropriate vehicle for a method of execution claim.

And I should just be clear... and we're getting back here to Justice Kennedy's question... that if... if we're rolling back habeas all the way to simply the fact of the sentence and you can challenge nothing other than to say I should not have been sentenced to the death penalty, then we have a... an even bigger floodgates issue that I had... had at first imagined.

District courts tomorrow will be dealing with everything short of I should not have been sentenced to the death penalty under section 1983 without the protections that Congress built in... built into AEDPA to protect against that very floodgates problem.

Justice Ginsburg: But this is... you made the point earlier that if this man were just in his cell and under a term of years, that this would be an entirely proper 1983 case.

That's not the same for somebody who's says I'm innocent of the death penalty.

That... that one... you can say, oh, yes, that's habeas and nothing else.

Here, you've already said exactly what they're doing to him, if they had done it in order to get access to his vein for some other procedure while he's incarcerated, it would be a good, plain 1983 claim.

But somehow when it gets to be connected with how he's going to die, it's no longer a 1983.

Mr. Newsom: To be sure.

There... there is clearly some common sense line between a pure conditions of confinement claim, the fellow in his cell that has to have the cut-down for some other purpose, and the... the fellow on death row who has to have the cut-down as a means of gaining access to his veins for purposes of accomplishing a lethal injection.

Without the venous access, there is no lethal injection.

I think there is a very real difference between those two situations, and I can't, as I'm standing here, promise you that I know precisely where that line is between the outer bounds of an execution procedures claim and the outer bounds of a conditions of confinement claim, but what I can tell you is that this claim runs to the very core of the State's execution process.

Justice Souter: Well, but... but is it?

I mean, you... you said without venous access, there... there is no... there's no execution by lethal injection.

But there is execution by lethal injection without cut-down.

And... and the question in each case is is the cut-down gratuitous.

Calling the cut-down gratuitous for purposes of injection does not challenge the legality of injection.

Mr. Newsom: It just strikes me, Justice Souter, that that with respect... well, let me answer in two ways.

First, as I said earlier, I think the record in this case is clear that the cut-down becomes a live issue only in... in the event that it is necessary.

Point two, and I think the more important point, is that it just strikes me as a bad way to administer the rule on a going-forward basis for a district court to have to sift through on a procedure-by-procedure basis to determine is this procedure in fact medically, scientifically necessary to accomplish the sentence, in which case Mr. Stevenson I think concedes that it's a habeas petition, but it's not.

Justice Souter: What you're doing is asking all the courts, including this one, to ignore the very issue and simply say, in effect, under AEDPA we don't care.

I mean, we're somewhere between the devil and the deep blue sea here, and... and I would suppose there... there ought to be a middle ground.

Mr. Newsom: I certainly am not suggesting in any... to any extent that... and I don't think it's true... that... that to extent that, say, a... a technically unnecessary but nonetheless chosen procedure for gaining venous access is unreviewable.

That's the point... that's the discussion that I was having with Justice...

Justice Souter: That's I thought is what he wanted reviewed.

He wants to be able to litigate the necessity of this.

He claims that it is gratuitous.

Justice Breyer: That's his point.

Mr. Newsom: Right.

And... and our point is... is that that is fine if he wants to litigate and we will litigate and fight him tooth and nail in the appropriate forum.

The appropriate forum in this case...

Justice Souter: There is no appropriate forum because the appropriate forum was closed to him before you announced, A, that you were going to execute him by injection and, B, that you were going to use this procedure as a last resort.

Mr. Newsom: With respect, Justice Souter, the appropriate forum in this case exists.

It exists in the State court system.

It is... it simply is not the case that Mr.... that Mr. Nelson is out of luck entirely without a 1983...

Justice O'Connor: Well, let's try this again.

What procedure is open to him in the State of Alabama?

We were told that no procedure was.

Mr. Newsom: Your Honor, I think that there certainly are procedures.

We outlined procedures in our brief, namely, the two that we have not discussed to this point were that Mr. Nelson could have filed a response to the State's motion to set the execution date, and two, he could have filed a motion to stay the execution in State court.

Now...

Justice O'Connor: Well, we're talking about now.

What is open to the prisoner today...

Mr. Newsom: Those...

Justice Souter: in Alabama?

Mr. Newsom: Those procedures, Your Honor, are in fact open to... to the prisoner today because when this Court stayed the execution, the death warrant expired.

We will now need to go back to the Alabama Supreme Court, even... even in the event that we prevail here and ask for a new death warrant, at which point Mr. Nelson can... can participate in the State process...

Justice Kennedy: And do you represent he can get a hearing on the merits of his arguments in one of those procedures?

Mr. Newsom: What I... what I can represent to the Court is that I am certainly not aware of any procedural bars that exist to him participating in either one of those processes, and that certainly with respect to Mr. Nelson, we would... we would be glad to waive any procedural bar that did exist.

We would certainly expect the...

Justice Kennedy: So that there could be a factual hearing on... on the necessity of the... and the... and the medical propriety of these procedures?

Mr. Newsom: Sure.

If he... if he chooses, as... as we hope he will... as we hope he would have and now hope he will, to participate in the State process, he will get a hearing on the merits of his Eighth Amendment claim.

And again, I'm not suggesting...

Justice Souter: But... but if he does and loses, his only access to the Federal courts is by a petition for an original writ here.

Mr. Newsom: That's right and that's... that's very close, Your Honor, to the... to the very situation that this Court dealt with in Allen v. McCarty.

Chief Justice Rehnquist: He would also have the opportunity to seek a stay, would he not, from this Court from the decision of the Alabama court saying that his Eighth Amendment claim was...

Mr. Newsom: To... to be sure.

This Court always retains cert jurisdiction over merits determinations of State courts.

Justice Breyer: Would we have to go into the question of whether that's a suspension of the writ of habeas corpus in a case, say, much worse than this one?

It's horrendous.

He couldn't raise it before.

No access to a Federal district court.

Mr. Newsom: I don't think, Justice Breyer, that this case even presents a suspension...

Justice Breyer: No, no, no.

But just imagine this case with much horrible circumstance because your rule of law is the same, irrespective of the horror of the circumstance.

So there would be no claim but a State court for a person who could never had brought a Federal habeas because the issue didn't arise.

Is that a suspension of the writ of habeas corpus not in time of war?

Mr. Newsom: I think it's not in this Court...

Justice Breyer: And you'd refer me, because there's only a minute, to read on that so I'd become convinced what?

Mr. Newsom: Please read Felker.

This Court's decision in Felker is quite clear that pointing specifically to section 2244, this Court said Congress, by and large, gets to make judgments about the scope of the writ.

Section 2244 is not a suspension.

We're not even in the ball park of an across-the-board bar on... on jurisdiction.

Justice Ginsburg: But if we... we're doing 1983, then there's no... there's no exhaustion requirement.

Justice Breyer: There's...

Mr. Newsom: That's... that's certainly true, but I guess it assumes that... that I'm wrong about... about the nature of this claim.

Our position, of course, as I've tried to convince the Court...

Justice Ginsburg: But you've said it is a good 1983 claim except if it... if it is in relation to the administration of the death sentence.

Mr. Newsom: Your... that's right, Your Honor, and this will give me I think a... as good an opportunity as I can to try to sum up our position in this case.

We have certainly made the argument that a challenge to a State's means of gaining venous access, a challenge to... to a procedure for carrying out an execution is in and of itself... should be understood to be a challenge to the sentence itself and subject to habeas corpus restrictions.

The State amici, the 30 States who have participated in this case on our behalf, have made very strongly the argument that a... that a stay of execution in and of itself should be understood as a challenge to the sentence.

The Court need not go so far in either respect with us today.

All we ask the Court to hold today is that where... where an inmate both challenges a procedure for carrying out his execution and, in essence, tries to tell the State, dictate to the State how to go about conducting that execution, and seeks a stay of that execution to give himself time to engage in that reordering of the process, that that should be understood as a challenge to the sentence.

Rebuttal of Bryan Stevenson

Chief Justice Rehnquist: May I...

Thank you, Mr. Newsom.

Mr. Stevenson, you have 8 minutes remaining.

Mr. Stevenson: Thank you, Mr. Chief Justice.

I... I'd like to start first by... by trying desperately to... to inform this Court that there is no remedy available to Mr. Nelson in State court.

I appreciate Mr. Newsom's argument on this point, but rule 32 is not an available option.

I...

Justice Stevens: Before you go into that, would you clarify one thing for me I want?

Did they object in the district court to... on the ground there was a failure to exhaust State remedies?

Mr. Stevenson: No, they did not.

No, Justice Stevens.

There's never been any...

Justice Stevens: And the district court did not rule on the claim that there was...

Mr. Stevenson: Absolutely, and the problem here is, again, none of these issues were... were permitted to... to develop.

Let me just start with the State court question.

Rule 32 has the same kind of factual innocence requirement.

For the 6-month time line that Mr. Newsom was talking about, yes, you can file a new successive State court petition under rule 32, but just as you have to in the Federal context, the State court petition has to allege factual innocence.

In footnote 19 of our reply brief, I cite a case, Tarver v. State.

It's a case where immediately before an execution, the prosecutor admitted that he had excluded African Americans from jury service in a discriminatory manner.

He said here's our new evidence.

The execution be... should be stopped.

The Court of Criminal Appeals and the Alabama Supreme Court held no.

New evidence claims must go to factual innocence.

That's 32.1(e).

There is no remedy available.

Mr. Newsom talks about filing something in the State supreme court.

The State supreme court of Alabama has no jurisdiction...

Justice Scalia: But that's a little different from a case that alleges a current impending constitutional violation.

Mr. Stevenson: Yes, Your Honor.

And I could speak to that because in the other case we cite in footnote 19, we did that too.

In the first Tarver case, this Court had granted cert on the constitutionality of execution by electrocution.

The case was pending at this Court.

We went to the State courts of Alabama saying, look, the State supreme... the United States Supreme Court is about to review this.

We've got new evidence that electrocutions in Alabama are being conducted in an unconstitutional manner.

Let us in.

No.

Your method of execution claim is not cognizable because the 2-year statute of limitations at that time is an absolute bar.

The courts have no jurisdiction to adjudicate any constitutional claim unless it is a new evidence innocence claim.

The Alabama Supreme Court has no jurisdiction to give us a merits review on this issue.

Justice O'Connor: We were told there were a couple of other methods besides rule 32.

Mr. Stevenson: There are none, Justice O'Connor.

The only thing we could do is file a motion for a stay.

At the point at which the stay motion was requested here, April of 2000, Mr. Nelson didn't want a stay.

He doesn't want a stay of execution.

He actually wants his execution to be carried out.

Justice O'Connor: Well, he did ask for a stay you said, in order that this could be resolved.

Mr. Stevenson: Absolutely.

Justice O'Connor: So, as I understand it, he does want a stay in order that this can be heard.

Mr. Stevenson: Well, he wants a stay to... he wants to enjoin the kind of conduct that we're talking about here, but filing a stay motion in the Alabama Supreme Court would not get him merits review where we could present the kind of facts that we're now presenting.

And I have to say that access to the Federal courts in this case has really changed the State's position.

Nothing that we've been talking here this afternoon about what they intend to do was ever presented to Mr. Nelson until he got in front of the Federal judge.

In front of the Federal judge, they said for the first time, we will try to do a peripheral stick, not percutaneous invasion.

It's a different procedure.

And at page 109 of our joint appendix, the district court finds... and I'm reading here... the defendants have offered no explanation as to why they intend to use a cut-down procedure instead of a percutaneous central line placement.

They have never made that offer.

They're making it here today.

It's because we're in court, and of course, we can't get to court unless this Court recognizes our authority to bring a legitimate challenge that does not attempt to invalidate his conviction or sentence.

There is a gap.

Justice O'Connor: Well, what we heard today, does that satisfy the prisoner's request that these... all of these other things be used first?

Mr. Stevenson: Well, if... if the State had then and would now concede that percutaneous line placement would be an acceptable method, then yes.

That's all we were seeking.

But of course, without a remedy...

Justice O'Connor: Is that not what was said today?

Mr. Stevenson: Well, it's not said in a way that we can enforce, Your Honor.

Until we can go to the district court, go to a court, and enforce any of these representations, we are at risk.

And that's all we're asking.

That's all Mr. Nelson asked in the first instance.

And the irony, of course, is if it had been permitted to proceed, I think we would have resolved this.

He'd already be executed.

And I think their conduct today strengthens that position.

And that's why we would urgently ask this Court to reverse the rule that the Eleventh Circuit is now applying which bars prisoners like Mr. Nelson from getting Federal review.

It's not asking a lot.

And I understand the fears, but I don't agree with Mr. Newsom that this is opening up anything.

People can file complaints now.

They could have done it for the last 20 years.

But district courts are not obligated to review those complaints.

The PLRA puts restrictions on 1983 actions.

The habeas corpus right permits... creates restrictions.

What this Court shouldn't do out of fear is to block prisoners like Mr. Nelson who have legitimate constitutional complaints from getting remedies that are precisely the kinds of claims that could and should be resolved in a manner that they've been discussed about... discussed today easily.

We tried to exhaust the administrative remedies, but until we got in front a Federal judge, no one would allow us to be heard.

And that's simply the problem that we face in this case and why relief is required.

And I think that's why there ought to be the kind of Federal... Federal remedy that Justice Breyer has indicated because without it, our prisoners are at risk.

Unless there are further questions, I'll... I'll rest...

Chief Justice Rehnquist: Thank you, Mr. Stevenson.

The case is submitted.

Justice O'Connor: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The Oyez Project

Featured:

Muhammad v. Close - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Muhammad v. Close

Media File:

02-9065_20031201-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Corinne A. Beckwith

Chief Justice Rehnquist: We'll hear argument now in No. 90... it's 02-9065, Shakur Muhammad, also known as John Mease v. Mark Close.

Ms. Beckwith.

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

The petitioner in this case, Shakur Muhammad, is a state prisoner who has brought a civil rights action alleging that a prison guard framed him on a false disciplinary charge in retaliation for his having exercised his constitutional right to seek redress in the courts for this same prison guard's previous misconduct.

For three reasons, this Court should not graft onto this type of Section 1983 claim a favorable termination requirement that would make this prisoner have to win his claim in another forum before he can seek his remedy in Federal court.

First, the favorable termination requirement is a habeas protecting advice... device... that was borne of this Court's recognition that Congress would not have wanted a general civil rights action to be the vehicle for undoing a state criminal judgment, particularly given the more specific habeas exhaustion requirement.

Second, extending the favorable termination requirement beyond this original rationale lacks any basis in the statute's terms or history, and it's devoid of the kind of common law pedigree that might suggest Congress envisioned a broader application to cases that do not look like habeas cases in that they don't involve a direct or an indirect challenge to the fact or duration of custody.

And finally, any remaining qualms about Congress' intent are resolved by the Prison Litigation Reform Act, where, after carefully weighing the interests of overburdened courts and of prison officials, Congress imposed an administrative exhaustion requirement, not a favorable termination requirement.

Justice Breyer: But I don't understand this about this case.

I'm having an awfully hard time understanding this case, and... and it seemed to me what had happened was that the... your client, who's certainly well represented, he is sitting there at lunch and he makes some faces or gestures and the prison guard then has him up for a couple of charges and he basically is acquitted of the more serious one and they punish him for the more... less serious, threatening behavior, no, it's insolence or something like that.

He never says a word about retaliation, never says a word about it.

He never appeals, which he could have done, his conviction.

He never says to the prison authorities, hey, throw this out.

The whole thing was based on the guard's desire to retaliate.

And now suddenly have his... not having done any of that, we're in Federal court, and the Federal magistrate says, you know, he has no evidence of retaliation, or at least not enough.

And now we're up here arguing about Heck v. Humphrey, sort of like the Finnegan's Wake of the habeas corpus law, and I... I can't really understand how we even got here.

I... I don't understand why, if you're right, this isn't an unexhausted claim, or at least the magistrate said you don't... your client, unfortunately for him, has not enough evidence.

How do we get into this?

Chief Justice Rehnquist: Well, I suppose one of the reasons you got into it was that the Sixth Circuit said that you had... had to comply with Heck against Humphrey, and you didn't agree with it.

Mr. Beckwith: Well, that's right, and you know, this is undoubtedly a valid First Amendment retaliation claim.

The idea here is our... our client is saying, you know, he... he made perfectly appropriate allegations in the courts against this prison... this prison guard in prior lawsuits, and the guard set out to get him--

Justice Breyer: Can we reach this... I can't reach the Sixth... the question that the circuit thought was here.

I don't see what we're supposed to say.

What are we supposed to say?

That... that this unexhausted claim, nonetheless, in 1983 states a claim?

Mr. Beckwith: --It's not... I don't believe it's an--

Justice Breyer: If I said what I said, is that correct what I've said?

Mr. Beckwith: --I don't think so, because it's not an unexhausted claim, and I believe the whole point of this case is the... is the misstatement of the law by the Sixth Circuit that would deem this a non-civil rights claim, basically a habeas claim completely contrary to this Court's precedent in Preiser.

We have, you know, Preiser v. Rodriguez, which set up the way, you know, followed up on by Heck v. Humphrey, the way that we decide which way these cases should go.

Is this a civil rights claim?

It should go through 1983.

Or is it something we're worried might swallow the habeas exhaustion requirement?

Justice O'Connor: Well, does the Heck Humphrey issue that comes to us one that is affected by whether good-time credits are lost?

Mr. Beckwith: The... whether good-time credits are lost is a... is a consideration and whether there is a fact or duration case.

Justice O'Connor: Right.

Mr. Beckwith: And this case is nothing about--

Justice O'Connor: So after all the briefing, the additional briefing that's gone on, do we know now for sure whether good-time credits are affected here?

Mr. Beckwith: --I think we do.

The most important point on that question, Justice O'Connor, is something that I... a point I unfortunately made in a footnote instead of in the text, footnote 6 on page 5 of the yellow brief, which I wish had been the first sentence of my issue in bold, and that point is that it doesn't matter, because we're not... no part of our constitutional claim challenges the insolence conviction.

Justice Souter: But is... is that really the point?

It's not what you challenge, it's the implication of what you want to be held.

Mr. Beckwith: It... that's right.

Justice Souter: And those are quite different things.

I mean, if in fact good-time credits are lost, even though you are not asking for any adjudication on good-time credits, then it necessarily follows that the length of the sentence can be affected, and it necessarily follows that at some point there could be a habeas claim because the individual was not being released.

Mr. Beckwith: That's right, but there's nothing about this claim that would ever, you know, ever lead to the result, under the test necessarily imply the invalidity of the deprivation of good-time credits, which, by the way, I don't believe we were deprived of good-time credits, because of the reasons I state in my brief.

Our client is a habitual offender and this claim was not raised in the lower court but--

Justice Souter: Well, let... let's... could we just make a short excursus there?

Assuming that no good-time credits are lost with respect to the minimum sentence, the point of... determining the earliest point at which he could be paroled, isn't it the case under state law that good-time credits still would be applied to the maximum sentence?

Mr. Beckwith: --That... that is true.

I don't believe that would ever--

Justice Souter: Then... then isn't that the end of your argument--

Mr. Beckwith: --I don't think so.

Justice Souter: --because doesn't it... I mean, let me just finish--

Mr. Beckwith: Sure.

Justice Souter: --my... my question so you know where I'm going.

If... if... if the good-time credits would apply to the maximum sentence, then it seems to me that if he is not released at the point at which he says he should be entitled to good-time credits, he's got a habeas claim.

Mr. Beckwith: I don't think that... I think that that aspect of the claim, you know, aside from waiver and aside from not challenging the conviction that led to the good-time credits, if they exist, is still not true, I don't think.

It... it's too hypothetical.

Most of these cases are like Preiser, where there would be immediate release.

He has to serve his minimum sentence under Michigan law, so he's not ever going to get out earlier than his minimum.

He... those will not be shortened by good-time credits.

After that, he's going to see the parole board several times.

He's going to be 103 years old when he hits his maximum sentence.

The likelihood that he would actually not be dismissed until his maximum sentence, you know, be discharged as opposed to paroled earlier than that and have his sentence terminated long before his maximum, you know, just makes it impossible that this would be anything but hypothetical--

Justice O'Connor: Well, but for ease of judicial administration, do we really want to have to look at how old he's going to be and all of these things?

Is it not possible to say at the end of the day, good-time credits still apply to the maximum, so you're out of here?

Mr. Beckwith: --Well, that may be true in another case, but it's not true in our case, because we're not challenging, you know, nothing about our constitutional claim would necessarily imply the invalidity of that insolence conviction.

Justice Kennedy: Well, sticking with Justice O'Connor's question, suppose good-time credits were involved here, but insofar as the prisoner is concerned, it was wholly peripheral, and assume that the good-time credits would not click into operation for another 20 years.

Would it make sense for us to insist on Heck v. Humphrey in those circumstances?

Mr. Beckwith: In... I mean, I think that... that Preiser created a clean line, and this Court has decided repeatedly that good-time... the loss of good-time credits falls on the fact or duration side of that line, and I think it makes sense to continue to maintain that clean line, and it's the kind of thing where good-time credits are the hard case.

There's--

Justice Kennedy: So you think it does... so you think that if good-time credits were unequivocally involved here, that the Heck rule would apply?

Mr. Beckwith: --I don't... I... I think that's what this Court's precedents would suggest.

There might be room for reconsideration of the good-time credits in the future when it... when it starts to get real hypothetical or when there... if there might be some abuses, such as prison, you know, evidence that prisons were, you know, had the perverse incentive of tacking on good-time credits to--

Justice Ginsburg: Well, this is... this is very strange when we... when the original idea, I thought, of Heck was typing the kind of claim.

I think the Court said in that case, this is not a prison condition case like my dietary law is not observed, am I not getting medical treatment, but it... it is like... there was an analogy to malicious prosecution, and here this has the same flavor, that this is... the complaint is that this guard had it in for me, and there were trumped up charges.

And the way you get around... would you say you're not really attacking the insolence, what he... he was convicted, so you're only concerned with the six days pre-hearing detention, but I don't see how you can, in all candor, chop up your complaint that way, because if the officer hadn't been retaliatory, the officer wouldn't have confronted him in the first place, he wouldn't have been insolent, and nothing would happen.

So how you can say is, well, we'll accept the insolence but really we don't because this is a retaliation and there never would have been any charge at all.

Mr. Beckwith: --Well, I... that's... part... along the lines of the argument the respondent makes in trying to use a... sort of a but-for kind of take, or test, or a relevance kind of test, but that is not the test.

The test is whether the claim, the constitutional claim, would necessarily imply the invalidity of the conviction or sentence--

Justice Scalia: I... I thought your response to that was that provocation was no defense to the charge--

Mr. Beckwith: --That's right.

Justice Scalia: --to the charge of insolence.

Mr. Beckwith: The respondent is... is arguing that... that it goes to credibility.

Credibility is not enough.

That's about relevance or admissibility.

Justice Scalia: But is not your position, and I don't know that the other side has contested it, that provocation would not have been a defense to the charge of insolence?

Mr. Beckwith: That's right.

There's no--

Justice Scalia: And therefore, your provocation claim does not invalidate the insolence conviction.

Mr. Beckwith: --There's... there's... that's correct, Justice Scalia.

There's no way of litigating--

Justice Breyer: How... how do I decide that, because that, it seems to me, is why I kept thinking I'm having trouble with this case?

Mr. Beckwith: --Well--

Justice Breyer: It is inconceivable to me that under any law of any place that if a guard has gone and brought this whole thing about as a way of retaliating against a First Amendment right, I can't imagine a tribunal that wouldn't throw out the whole thing.

I mean, I know you say, oh no, that isn't what they would have done.

If he had gone to that disciplinary body and it said, look, I have proof here that this is total fake by the guard in retaliation for my First Amendment right, what that body would have said is, we convict you still of insolence but not of the greater charge.

That to me is inconceivable, but whether that's so or not is a pure matter of state law, and... and it seems to me that this case then turns on a pure matter of state law, because I think if it is totally separate maybe you're right.

If it isn't totally separate, I don't see how you could be right.

Mr. Beckwith: --And it is.

I have several answer that.

It is totally separate.

You... you can't litigate the retaliation claim in... in a... in a prison misconduct hearing, just as Rodney King couldn't--

Justice Breyer: You couldn't... you couldn't say, hearing examiner in the prison, I want to tell you something.

The guard's doing this because I filed some earlier claims against him.

What... what would be so hard about doing that?

Mr. Beckwith: --In fact, we actually... the hearing officer himself, in his deposition, which is at joint appendix 102 to 103, indicates he... he... retaliation was not a defense.

It might go to credibility, but he can't consider that--

Justice Souter: No, but that's a... that's an issue of fact.

And the thing that's bothering Justice Breyer is the same thing that's bothering me, and that is it seems a... it seems like a very strange statement of law to say that there would be no retaliation defense, and if... and yet it seems to me you've got to say that in order to avoid Heck and Humphrey.

So what's your basis for saying it?

Do you have--

Mr. Beckwith: --It's--

Justice Souter: --any state law authority for saying that so that we could make that assumption that you are correct in your statement when we decide this case?

Mr. Beckwith: --To tell you the truth, I just assumed it as... as a logical matter.

It's like, as I was saying before, Rodney--

Justice Souter: You assumed that in... in the... in the disciplinary proceeding for... that, let's say, in a disciplinary proceeding for insolence, he would not be... the prisoner would not have the opportunity of saying, he got me into this situation in retaliation for filing these actions?

You just assumed that?

Mr. Beckwith: --Right.

It's just like assault on a police officer.

If you're arrested because you're black and then you assault that police officer, you... you know, your... your 1983 claim on the illegal arrest is not, you know, it's... it's separate and apart from--

Justice Souter: But we're talking here about insolence.

I mean, he gave him a dirty look of something or other.

Mr. Beckwith: --The... the hearing officer himself said that--

Justice Souter: Well, is there any state law authority that we could look to?

Mr. Beckwith: --I'm not aware of any and I'm sorry that I--

Justice Scalia: Well, it doesn't seem unreasonable to me.

A police officer who's charged with a civil rights violation for... for whacking a demonstrator cannot please... plead as a defense, I was provoked.

Doesn't matter if you're provoked, you're not supposed to do... do the act, and I don't know why it would be any different with... with a prison inmate if... if he was provoked--

Justice Breyer: --But he doesn't admit that.

Justice Scalia: --to resist the provocation.

Mr. Beckwith: --And in any event--

Justice Scalia: What's so unreasonable about that?

Mr. Beckwith: --I think that what... whether we challenge the... the misconduct... the result of the misconduct proceeding in this case is really not relevant because--

Justice Breyer: Well, his... his complaint doesn't say the kind of thing you just said.

I think his complaint says, I'm sitting there, the officer made some faces, lured me into this whole thing, and then what he charged me with was false.

So I... I didn't see... it's what Justice Ginsburg, I think, was talking about at the beginning.

I'm just... maybe you have nothing else to say on it, but I saw this being chopped up.

I saw one incident, it being chopped up as if there were several things, one insolence, one threatening behavior, and then separating that out, and I got totally confused about the Heck v. Humphrey part, the exhaustion part--

Mr. Beckwith: --The... the complaint is very clear.

I mean, the gist... the most tangible part of... of the complaint is that I was overcharged, you know, and I had to do pre-hearing detention, six days in pre-hearing detention that I would not otherwise have had to do because this guard was retaliating against me for suing him, for exercising--

Justice Ginsburg: --This is the amended complaint.

It was not his original complaint, and one of the many puzzling features in this case is the Sixth Circuit is addressing the original complaint, where this man says, I want the whole thing expunged, not that, yes, I was insolent, but I wasn't engaged in threatening behavior.

The initial complaint said, this officer retaliated against me, the whole thing is no good, court, expunge the discipline.

And it was only in the amended complaint that they came up with this theory, oh, insolence was all right, and the only thing that we're attacking is the threatening behavior.

Mr. Beckwith: --Well, the two complaints are actually very similar, maybe identical, except for the... removing the request for expungement.

And, of course, the Sixth Circuit's--

Justice Ginsburg: Well, isn't that a rather significant difference, because that says the whole thing is no good, the insolence is no better than the threatening, the whole thing is no good?

Mr. Beckwith: --Mr. Muhammad was... was not represented by counsel.

He was... he was working pro se, and he amended his complaint.

The amended complaint was accepted and that's... that's the complaint that's... that's before--

Justice Ginsburg: But that's not what... that isn't the complaint that was before the Sixth Circuit, so at a minimum, shouldn't we send it back to the Sixth Circuit--

Mr. Beckwith: --No.

Justice Ginsburg: --and say, look, you looked at the wrong complaint?

Mr. Beckwith: Well, it was the complaint that was before the Sixth Circuit.

They just made a factual error, and I think both parties agree it was a factual error, but it's one that didn't matter.

Justice Ginsburg: Nonetheless, they ruled on a complaint that is not the one he was complaining about.

Mr. Beckwith: But... but it doesn't matter, because they relied on Huey v. Stine and the case law in the Sixth Circuit.

It wouldn't matter whether you asked for expungement or not if you are challenging the result, which the Sixth Circuit thought--

Justice Scalia: Excuse me. All of this is relevant why?

Because of the issue of whether he's lost any good-time credit, isn't that right?

Mr. Beckwith: --I don't--

Justice Scalia: Wasn't that issue waived by the other side and wasn't... wasn't there a finding?

As I understand it, there was a finding by a... by the magistrate that plaintiff is no longer in the more restrictive custody of toplock or administrative segregation, nor in the more extended custody that would still faced him had he lost any good-time credit, and an issue was never made by the other side as I understand it, nor before the Sixth Circuit, that he had lost any... any good-time credit.

Am I wrong in that?

Mr. Beckwith: --That's absolutely right.

The issue wasn't presented--

Justice Scalia: So it's waived.

Why should we get into that here?

Mr. Beckwith: --Right.

And if... but if--

Justice Scalia: Especially having granted cert on a... on... on a significant question, to which that... that is... is preliminary.

Mr. Beckwith: --That's correct, Justice Scalia, and if good-time credits are not at issue, it doesn't matter if we're challenging the insolence conviction, because nothing about this claim is going to affect the fact or duration of... of confinement, so that, you know--

Chief Justice Rehnquist: Though the state does dispute you on the good-time credit, does it not?

Mr. Beckwith: --The state does dispute.

You know, I think they're wrong for four reasons.

Justice Scalia: But too late, but too late.

Isn't that your point?

They dispute you, but too late.

Mr. Beckwith: That is my point.

I mean, that is my best point.

My second best point--

Justice Breyer: Okay.

If you're right on that point, then it's the easiest case ever, you're obviously right.

If it has nothing to do with good-time credit--

Mr. Beckwith: --Well--

Justice Breyer: --if you can chop up the... the action in that way, if all you're complaining about is six days that he spent in pre-trial detention and your winning on that would have nothing to do with anything else, would not set aside the rest of the... of the loss of good time or anything else, then you're obviously right.

Mr. Beckwith: --That's right.

Justice Scalia: That's what she says.

Unknown Speaker: [Laughter]

Justice Breyer: Why is it an issue for us?

Mr. Beckwith: I agree.

It's an issue because the respondent is trying to push the test of, you know, of Heck v. Humphrey into the context of misconduct proceedings, regardless of the punishment imposed.

They say even--

Chief Justice Rehnquist: You don't... you don't say that Heck against Humphrey should never apply to misconduct proceedings, do you?

Mr. Beckwith: --No.

Chief Justice Rehnquist: You just say it shouldn't have--

Mr. Beckwith: As in Edwards, it should definitely apply when good-time credits are lost or something else happens, you know, in the proceeding.

I can't imagine what besides good-time credits, but if fact or duration is affected... in this case, fact or duration was not affected.

This is a classic civil rights claim.

We're talking about the First Amendment.

It could have been about religion.

It could have been about race.

Justice Ginsburg: --Know what is very strange about this case is you've got these two threshold requirements.

If it's a habeas line, then you can't skirt exhausting state judicial remedies.

If it's a prison condition case, then you have the PLRA, you have to exhaust the internal remedies.

Here, you didn't do either.

I mean, if you take it on your case, this is really in the prison conditions line.

You didn't even appeal internally.

Mr. Beckwith: But that's... that's not at issue in this case.

The... the respondent complained in the courts below about exhaustion.

It was considered by the lower court.

The respondent said, you didn't seek rehearing, and the magistrate judge said, I disagree with you, he didn't have to seek rehearing because he's not complaining about the insolence--

Justice Ginsburg: But, nonetheless, you are saying that this is a case that can go into court under 1983 even though there was... it's not on the habeas side so you don't have to exhaust the judicial remedies.

It's not on the prison conditions side and you don't have to... you don't have to exhaust internal administrative remedies.

Mr. Beckwith: --Justice Ginsburg, I absolutely disagree.

He did exhaust.

This was a question--

Justice Ginsburg: What did he exhaust?

Mr. Beckwith: --He... he did everything he needed to do.

The magistrate judge held that and the district judge affirmed that and it wasn't appealed--

Justice Ginsburg: Where? Because it seems to me that he didn't.

He didn't ask for anything.

Mr. Beckwith: --In--

Justice Ginsburg: He said... and he said, indeed, I'm not challenging, I'm not challenging the insolence conviction.

Mr. Beckwith: --Record 68, the district court record in 68, unfortunately it's not in the joint appendix at... at 8 to 9... pages 8 to 9, the magistrate held that Mr. Muhammad exhausted, without seeking rehearing he exhausted.

And there was also a--

Justice Ginsburg: But can you tell me exactly what that was, because I don't see how he... he had?

Mr. Beckwith: --Well, the--

Justice Ginsburg: He might have said he didn't need to exhaust.

Mr. Beckwith: --No, the... the... the government filed a brief, a motion to dismiss, saying, you know, many things, but one of the things was he didn't exhaust his administrative remedies and they said because he didn't seek rehearing, respondent, or the... Mr. Muhammad responded, I didn't have to seek rehearing because I'm not complaining about the insolence.

I agree I'm guilty of insolence.

And the magistrate agreed.

That's the end of exhaustion.

Justice Scalia: Exactly.

But did he exhaust administrative remedies for what he's complaining about here, which is--

Mr. Beckwith: Right.

There was no--

Justice Scalia: --which is not the insolence conviction, but rather the sixth... the sixth day lockdown or whatever he had pending the hearing on the higher charge.

Mr. Beckwith: --As far as we know, he exhausted everything that he needed to exhaust.

Justice Breyer: Well, how... how could that be, because--

Mr. Beckwith: The government--

Justice Breyer: --I know they said that, and that's one of the reasons I'm having difficulty.

You would have thought that if he was retaliated against, he would have said to the hearing examiner, I was retaliated against me, the whole thing is no good, I had six days that I spent, at least deduct the six days from the seven days additional punishment you're giving me.

He didn't say that.

Nobody knew a thing about it.

He didn't ask for a rehearing.

He didn't ask a judge... I mean--

Mr. Beckwith: --I--

Justice Breyer: --what I'm worried about is writing an opinion in this that says you're completely right, and in the course of doing that by every assumption I have to make, so mixing up the law that nobody can understand what it is.

Mr. Beckwith: --I understand.

There... there's no doubt that the PLRA requires exhaustion of administrative remedies.

It's not at issue in this case.

It's not jurisdictional.

Every circuit court to consider the issue has said it's not jurisdictional.

The government raised the... the question.

The lower court considered it.

They... they ruled in our favor.

It's not a part of this case anymore.

Justice Scalia: Is it raised on appeal?

Mr. Beckwith: It was not raised on appeal.

Justice Scalia: Was it raised in the brief in opposition?

Mr. Beckwith: In... in cert?

Justice Scalia: To the petition for cert?

Mr. Beckwith: No.

Chief Justice Rehnquist: Not the state, from the district court or the court of appeals?

Mr. Beckwith: That's right, but it was not part of... of the government's response, failure to exhaust.

It was decided in the lower court.

It's... it's over.

Justice Kennedy: Is... is it clear that the wrong of which he's complain... complains... is one of the wrongs set forth in the Prison Litigation Reform Act, or is this... is this some--

Mr. Beckwith: Yes.

And in fact, that... that's one of our arguments that the Prison Litigation Reform Act reaffirms the... the clean line that was created in Preiser.

You have fact or duration claims and you have conditions claims, Prison Litigation Reform Act, in... in creating an exhaust... an administrative exhaustion requirement for conditions claims, you know, indicates that this is the kind of claim that needs to exhaust.

Justice Ginsburg: --If he had been charged initially just with insolence instead of threatening behavior, that is bondable, but that doesn't mean that he would have been bonded, right?

That's a discretionary determination.

Mr. Beckwith: That's right.

Justice Ginsburg: So it might have been the very same thing.

The officer might have said, this is a bad guy, don't let him out until after the hearing.

So, in one case, he can't get out because it's mandatory pre-trial detention.

In the other... so this case is not about he had a right to be free, or free in the prison population those six days, but he could have argued that he should have been not locked up.

Is that's what the... that's the whole thing that this case is about, right?

Mr. Beckwith: I mean, his... his claim is a First Amendment retaliation claim.

The damages are this, you know, the chilling effect, the six days of pre-hearing detention, but that's just a remedial question.

The claim is a valid one.

Justice Ginsburg: I thought he's suing for damages and that's the only thing he's suing for, not injunctive, nothing else.

All he wants is money.

Mr. Beckwith: That's right.

That's right.

Justice Ginsburg: And what he wants money is for the six days that he might have spent anyway.

Mr. Beckwith: He wouldn't have spent it anyway, and you can see from the joint appendix at page 58, credit was not given--

Justice Ginsburg: No, I'm not talking about... it's bondable.

There's nothing that shows that if the charge had simply been insolence they wouldn't have held him for the six days.

He wasn't entitled not to be held.

Mr. Beckwith: --That's purely speculative and a matter of remedy, not... not the right.

Mr. Chief Justice, if I may reserve the balance of my time.

Argument of Thomas L. Casey

Chief Justice Rehnquist: Very well, Ms. Beckwith.

Mr. Casey, we'll hear from you.

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

I agree this is a very confusing case.

We believe there are several reasons why summary judgment should be affirmed.

The first is that because Mr. Muhammad did lose good-time credits, and because of the nature of his challenge necessarily implies the invalidity of his misconduct determination, we think this case is controlled by Edwards v. Balisok.

Justice Souter: Why didn't you waive the question of good-time credits?

I mean, why... you... you heard the discussion before.

Mr. Casey: Yes.

Justice Souter: Why... why is this something we should consider?

Mr. Casey: First of all, we believe it's... it's a matter of straightforward statutory... not even interpretation, just reading the text of the Michigan statutes on good time, so it's not some fact issue that... that can be waived.

Secondly--

Justice Scalia: Excuse me?

Only fact issues can be... legal issues can't be waived?

Mr. Casey: --No, it's not a legal argument.

This is a straightforward... a straightforward application of the statutory language that says he did lose good time.

Justice Scalia: You did not... did you make the point below that the other side has to lose because he lost good-time credit?

Mr. Casey: In our first motion for summary judgment, which was in 1998, we argued that Heck and Edwards controlled the case, that he was in effect challenging his good... or his misconduct hearing determination.

The magistrate of the district court denied that motion, saying he is not challenging his misconduct.

They agreed with his theory that this was a stand-alone retaliation case.

So nobody... neither party nor the district court nor the Sixth Circuit got into the fine points of the argument about whether this was a duration case or a conditions case.

Justice Souter: Then why isn't it waived?

Mr. Casey: Well, we submit it's... it's a straightforward matter.

It appears that the magistrate, in his opinion or his recommendation denying our motion for summary judgment, was under the impression he did not lose good time.

Justice Souter: Okay.

And let's assume the magistrate was wrong.

As I understand it, you did not go to the district court and say, the magistrate is wrong on this point and this point can be dispositive under Heck.

Am I correct?

Mr. Casey: We did not argue it in those terms.

We argued, as I say, the broader application of Heck and Edwards to the effect that he was... the nature of his challenge necessarily implied that his--

Justice Stevens: But your position... your position as I understand was that even if he did not lose any good-time credits, that you... nevertheless, Heck controls.

Mr. Casey: --Yes.

Justice Scalia: And that's the question--

Justice Stevens: --And that's what--

Justice Scalia: --on which we granted certiorari.

That's the question we... whether a plaintiff who wishes to bring a 1983 suit challenging only the conditions rather than the fact or duration of his confinement must satisfy Heck v. Humphrey.

Now, that question is not in the case, if indeed the duration of his confinement is what is affected.

And did you respond in the brief in opposition by saying, actually, this question is not even in the case?

Mr. Casey: Yes.

We--

Justice Breyer: But even if you did, it's not in the case, none of it's in the case on the assumption your colleague there was making, or your opponent.

Imagine that Mr. Muhammad wins his claim in the 1983 action, which the fact that they thought didn't have enough evidence suggests he wouldn't, but suppose he did.

Then he says, what I've showed was illegal under the Constitution or whatever, was, by being put in confinement for six days before my hearing, and my being charged with threatening behavior, that's it, that's all.

The rest of it is all beside the point.

I don't complain about my insolence.

I don't complain about the seven days.

I don't complain about the loss of good time.

I don't complain about anything except the six pre-hearing days and the later dropped charge of threatening.

So, if he's right about that, if you can do that, if in fact his winning on that in no way calls into question the conviction or the loss of good time or the seven later days for insolence, then under Heck, of course he can bring it.

Mr. Casey: --Yes, that... that's correct.

Heck... the favorable termination requirement of Heck only applies when the nature of the challenge necessarily implies--

Justice Breyer: Fine.

So now I've got to the point that either she's obviously right or you're obviously right, and what it depends upon is a matter of state law, which is whether, as a matter of state law, should he win this claim, it is true that his showing the retaliation in respect to the six previous days and threatening in no way calls into question the validity of the insolence conviction, the seven days, and the loss of good time.

So I say, what is the answer to that question of state law?

Or a sister concluded... it's fairly obvious under the law that they are separate.

Now what do you conclude?

Mr. Casey: --We argue that they are not separate, that the nature of this challenge does in fact necessarily imply the invalidity of his misconduct determination.

What he's challenging in this Federal lawsuit is retaliatory disciplinary action.

That... that's the language that he used in his amended complaint.

What he's saying is that the guard acted with an improper motive and that these adverse consequences flowed from that.

The only adverse consequences that he's alleging are involved in the misconduct hearing.

So we don't think that the fact that he was found guilty of insolence and not threatening behavior has any bearing at all on this question.

It was one incident, one charge that this particular hearing officer felt should be reduced to a lower charge, but the nature of his challenge, if... if Mr. Muhammad is correct that this guard acted unconstitutionally, there should not have been any misconduct charges, should not have been a hearing, should not have been any pre-hearing detention or post-hearing punishment.

Justice Scalia: Is... is... is that so?

You... you think it, as a matter of constitutional law, you... you could not... you could not say that a prisoner has no right to threaten a guard even if he... even if he claims to have been provoked or has no right to insolent behavior even if he claims to have been provoked?

As a matter of constitutional law, the prison cannot have such rules?

Mr. Casey: The Heck v. Humphrey analysis says that there were certain claims that are not cognizable on a money damage action under 1983.

Our argument is this is such a claim.

If a punishment imposed affects the duration of confinement, the loss of good time, then under Edwards v. Balisok, termination requires--

Justice Scalia: I'm saying it... it does not affect it if he would have been convicted anyway, and the contention of the other side is that he was guilty of the offense, both the major offense, if he had been guilty of that, and the minor offense, regardless of whether there was provocation on the part of the guard.

Mr. Casey: --Correct.

That... that's his claim.

Our argument is that--

Justice Scalia: Well, why... why do you... why do you assert the opposite?

Mr. Casey: --Well, that... that implicates the element of the common law tort of malicious prosecution, as discussed in Heck and Edwards, and those elements include favorable termination and probable cause.

Justice Ginsburg: But I think what you're not... this isn't an issue of whether provocation is a defense to a charge of insolence.

I thought what you were saying is that this whole string never would have happened, nothing would have happened.

If he... if he establishes the retaliation, then none of this would have happened, and it's just one episode.

Mr. Casey: Well, if... if he's correct that this retaliation is independent of the hearing process, that's... that's his argument.

Our argument is that the only thing he's complaining about is the retaliatory action, and the retaliatory action was charging him with misconduct.

He--

Justice Breyer: Is not... not retaliation separate in the hearing process.

You're saying, is his point that when the guard looked at him from outside the cafeteria and made faces at him, and then he came in, and then the prisoner stands up and gives him some very dirty looks, according to the guard.

Now, if you can separate out there the retaliation, if you can separate out there what the guard did by way of retaliation, making some very bad faces through the window, and insolence under state law, which would exist even if the guard were badly motivated in making the bad faces, then you've got your two separate things.

Mr. Casey: --Under Sixth Circuit law, to establish a claim for retaliation, there has to be protective conduct that the inmate engaged in and there has to be adverse action taken against that plaintiff that would deter a person of ordinary firmness from continuing to engage--

Justice Breyer: Fine.

And the... and the conduct--

Mr. Casey: --But that's--

Justice Breyer: --of the prisoner that's retaliation is that... that... has to do with that--

Mr. Casey: --No, conduct of the guard.

Justice Breyer: --would be his threatening look, but not his insolent look.

Mr. Casey: If this situation had proceeded exactly as petitioner alleges up to the point where they were nose to nose for a few seconds and then they had both walked away, there would be no retaliation claim, there would be no constitutional violation at all.

The only thing that gives rise to a constitutional right is the adverse action of charging him with misconduct.

That's why we say that this charge is necessarily implicated in the hearing process.

It necessary... necessarily implicates that his misconduct determination is invalid.

If he's right that there should have been no charge at all, if he's right on that, then the Heck v. Humphrey analysis doesn't even come into play.

We think he's wrong on that.

The... the district court felt he was right on that and... and ruled against us on our Heck v. Humphrey motion.

The Sixth Circuit in effect said we were right on that, that the nature of this challenge does implicate the hearing process, and under Sixth Circuit precedent, they said, therefore, it falls.

Justice Ginsburg: But the Sixth Circuit was addressing a complaint that looked like it was attacking the whole thing, because it asked for expungement of the disciplinary... of the disciplinary action.

Why didn't you call to the... or whoever was representing Michigan at that stage... call to the attention of the Sixth Circuit that it had addressed the wrong complaint?

Mr. Casey: The Sixth Circuit issued its order.

The petitioner filed a motion for rehearing.

Under the court rules, we're not permitted to respond to that, but our argument is that even though the Sixth Circuit--

Justice Ginsburg: You could have made a motion to remand or something.

Mr. Casey: --We could have, but we did not.

In retrospect, I wish many things had been done differently in this case.

Justice O'Connor: Well, do you aggrieve, looking at the Sixth Circuit opinion, that it was examining the original complaint, not the amended complaint?

Mr. Casey: It referred to the original complaint, but the... the holding of the Sixth Circuit on page 106 of the joint appendix, they say in an earlier Sixth Circuit case, and they quote it, in order to grant the plaintiff in this case the release he... relief he seeks, we would have to unwind the judgment of the state agency.

That is the basis on which they affirmed the judgment.

Justice O'Connor: I thought you agreed that the Sixth Circuit was looking at the initial, original complaint, not the amended.

Mr. Casey: That they... they mentioned the initial complaint and not the amended complaint.

That's correct.

Justice O'Connor: Yeah.

Mr. Casey: But we believe that the rationale that they used, that his challenge did implicate the validity of his misconduct hearing, is correct on both his original complaint and his amended complaint.

Justice Stevens: May I ask you a hypothetical question?

Assume we had the case with the same facts except the remedy a different... if the, say the prison authorities had said you can't use your television set for 30 days and that was the only remedy and otherwise everything else was the same, and he said it was... they did that in retaliation because I exercised my First Amendment rights.

If that were the discipline, would Heck v. Humphrey preclude relief in this case?

Mr. Casey: Yes, we believe... that's the question the Court granted cert on.

If a punishment affects only conditions--

Justice Stevens: And that's the one we probably ought to hear some argument about.

Mr. Casey: --That's... that's correct.

I... I agree, Your Honor.

We argue that--

Justice Stevens: And why would it preclude relief in that case?

That's what I'd be interested in hearing.

Mr. Casey: --Because as in the Edwards v. Balisok and... and Heck v. Humphrey, the proper method of analysis is to look to the most closely analogous common law tort, look to traditions of common law, public policy considerations in light of the purposes of Section 1983.

In Heck v. Humphrey and Edwards v. Balisok, the Court said, in the prison context... prison disciplinary context, the favorable termination requirement applies.

On the facts of those cases, there was good time involved, so duration--

Justice Scalia: More than the facts of the case, we... the reason we... we... we adopted that common law rule was to prevent a collision between 1983 and habeas corpus law and prevent 1983 from being used as an end-run around habeas corpus limitations.

Mr. Casey: --Again, on... on the facts of the case, that's... that was the situation presented, because in that case there was a collision between the habeas statutes and the 1983--

Justice Scalia: And that collision was... was in the reasoning of the Court.

It isn't--

Mr. Casey: --Yes, it was.

But additional reasoning was based on common law traditions and we argue that that same rationale applies even if good time is not involved, even if it's just conditions of confinement as punishment.

Chief Justice Rehnquist: --So that even if setting a... a ruling in favor of the plaintiff would not in any way call into question the prison disciplinary proceeding, it still should... Heck should still apply?

Mr. Casey: No.

If... if the nature of the challenge does not imply that the misconduct determination is invalid, then the Heck v. Humphrey analysis doesn't apply.

It's not analogous to the common law tort of malicious prosecution.

We don't assert that the favorable termination requirement applies to all conditions cases.

We say it only applies when a claim for money damages is attempted which... the nature of which necessarily implies that the misconduct hearing is invalid.

Justice O'Connor: Well, it looked like the Sixth Circuit is on the short side of a five-to-one split among the courts of appeals on how Heck v. Humphrey is to be applied, that the Sixth Circuit views it differently than the other circuits that have addressed it.

Mr. Casey: I believe that's correct.

Justice O'Connor: Do you agree?

Mr. Casey: I believe that's correct.

Justice O'Connor: Yeah, based on--

Justice Scalia: --How... how is--

Justice O'Connor: --its own Huey decision, and I really thought very likely that was why this Court granted cert here, to see whether the Sixth Circuit rule is out of step with what we said in Heck v. Humphrey.

Mr. Casey: The Sixth Circuit, and all of the court of appeals' decisions that have attempted to apply the Heck v. Humphrey analysis to conditions cases, are necessarily involved in... in extension of the Heck rationale to this other factual context, because Heck and Edwards involved good-time losses.

I agree that's... we assume that's why the Court took the case.

When we filed our brief in opposition, we suggested that there are these alternative reasons why the Court should not grant cert..

One of them was the loss... that he did in fact lose good time, but--

Justice O'Connor: But, of course, that conceivably was waived, because you didn't get into it below.

If we... if we disregard that and think that you waived this issue of good-time credits, and if we reach the merits on which I assumed we granted the case, then what justifies the Sixth Circuit rule?

Do you say just because damages potentially are at issue that the 1983 claim can't go forward?

Mr. Casey: --A... a claim for damages cannot go forward unless there's favorable termination.

If his claim was for an injunction changing the hearing procedures somehow, as in Edwards, that type of claim could go forward.

Justice Breyer: I don't see the difference in the Sixth Circuit rule anymore.

What... in what respect is it in the minority?

I thought you were reading now, as I heard you, the last or the next to last sentence in the opinion--

Mr. Casey: That's... that's correct.

Justice Breyer: --that the Sixth Circuit simply thought that if this individual wins, if Mr. Muhammad wins, they would have to unwind the entire judgment of the hearing, which would include the judgment having to do with insolence.

Mr. Casey: That's correct.

Justice Breyer: And so if that's what they base it on--

Mr. Casey: That's correct.

Justice Breyer: --is their rule different from that of any other circuit?

Mr. Casey: The way the Sixth Circuit is different from most of the other circuits is that they apply the Heck v. Humphrey analysis to punishments of conditions and not just to punishments affecting the duration of confinement.

Justice Ginsburg: What is the condition--

Justice Scalia: --They meaning the Sixth Circuit?

Mr. Casey: The Sixth Circuit applies it to conditions, punishments, and duration punishments.

Justice Ginsburg: What do you mean by a conditions punishment?

Mr. Casey: The... the punishments that Mr. Muhammad received were the loss of good time, confinement to administrative segregation, essentially remaining in his cell, plus loss of privileges for 30 days.

So only the loss of good time affects the duration of his sentence--

Justice Scalia: --Thus, only the loss of good time could have been challenged in habeas?

Mr. Casey: Correct.

Justice Scalia: And the conditions couldn't have been challenged in habeas?

Mr. Casey: Correct.

Justice Scalia: And that's the distinction--

Mr. Casey: The distinction in this case--

Justice Scalia: --that the other circuits think is crucial?

Mr. Casey: --Correct.

In... in conditions challenges, habeas corpus relief is not available, so there will be no other Federal court remedy if a Federal civil rights action is not available.

Justice O'Connor: And it... it's your position that there should be no remedy whatever for this person?

Mr. Casey: It's our position that if he is--

Justice O'Connor: If... if... we're disregarding the good-time credits.

That's waived, that's out of here.

Let's just make that assumption.

And you say that he's out of luck on pursuing any remedy for anything else?

Mr. Casey: --Prisoners who seek to challenge the nature of their complaint seeks to challenge or call into... whose challenges necessarily imply that a prison misconduct is invalid, do not have a Federal Civil Rights Act case of action, whether it... whether the punishment--

Justice O'Connor: And other circuits disagree.

They say that in this case it would relate to conditions, and therefore, the 1983 suit could go forward.

Mr. Casey: --Correct.

Justice O'Connor: That's the difference?

Mr. Casey: Correct.

And the difference was created because the majority in Heck based much of its decision on a rationale of the common law.

A concurring opinion in that case, signed by four justices, said, no, we're not going to base it on that rationale because that might mean that there would be no Civil Rights Act remedy in any such case.

Subsequently, in the Spencer v. Kemna, one of the judges who... or justices... who had been in the majority changed her mind and is now agreeing with the rationale of the concurring opinion in Heck.

So that's why the Sixth Circuit, or that's why the courts of appeals are split on this.

On the facts of Edwards and Heck it involved just duration claims, but depending on the rationale for the rule, it may or may not apply to conditions cases.

We say it does apply to conditions cases because--

Justice Ginsburg: And the condition here... and one thing is the abstract level on which you're speaking, the other is concretely what this case is about.

This case is about six days spent in pre-hearing detention.

It's the only thing that money is sought for.

Now, we're told that insolence is bondable, threatening behavior is not.

Does bondable mean it will be bond?

What is the incidence?

What practically is the effect?

Mr. Casey: --Some... some major misconducts are mandatory non-bondable.

Threatening behavior, the original charge, was mandatory--

Justice Ginsburg: So insolence is not mandatory.

What is the practice in the prison?

Is it common to let people--

Mr. Casey: --On... on page 14 of the joint appendix we've quoted from the policy directive, and the standard is, if there is a reasonable showing that failure to do so would constitute a threat to the security or good order of the facility, so on a case-by-case basis, a prisoner charged with a bondable major misconduct could be placed in pre-hearing detention.

Chief Justice Rehnquist: --Well, when you say bondable, I mean, you don't mean if a person posts a bond they're out on the street?

Mr. Casey: No, no.

That... that's the phrase used in these prison directives.

Justice Ginsburg: But that's what this case is about, those six days when he was in administrative detention.

Mr. Casey: Those are the six days for which he is seeking damages.

Justice Ginsburg: And... and do you have, rather than being in the general prison population, do you have any statistical indication of... on charges of insolence, are people more often than not, or is it rare that they would be in administrative detention awaiting the hearing?

Mr. Casey: I... I don't have the statistics of... the Department of Corrections probably could compile that, but I don't know.

I do know that there were last year more than 72,000 major misconduct hearing of all kinds, bondable and non-bondable.

I do not know how many of those 72,000 resulted in pre-hearing detention.

Justice Scalia: But was... was this argument raised below that there's no cause of action because there's no assurance that he wouldn't have been kept for six days anyway, even if it was bondable?

You... you didn't defend on that ground, did you?

Mr. Casey: It was not argued in those terms, no.

As I said, the case was argued--

Justice Scalia: Why do we want to get into that?

I... I don't understand.

Mr. Casey: --No.

We did not argue the... the terms of the bond versus non-bondable, because it simply didn't come up.

Justice Breyer: So suppose now... I think Justice O'Connor may be causing the light to dawn in my head... suppose you're right, suppose that there is just one ball of wax.

Suppose the... this is all a waste of time trying to separate those two things.

There's just one thing.

There's a conviction, all right?

Mr. Casey: Correct.

Justice Breyer: Now, we look to see what happens if he wins.

If he wins, we set aside the whole conviction, but good time is out of it.

And since good time is out of it, of course he can bring a 1983 action, because this wasn't the kind of thing that habeas was designed for.

Habeas was about duration of... of staying in prison, and with good time out of it, it doesn't matter whether it's one ball of wax or two.

He can go in on 1983 since there's no conflict with the habeas statute.

What's your response to that?

Mr. Casey: Our response to that in... in... in response to the question that the Court granted certiorari on is that even if good time was not at issue in the case, if the only punishment he received affected the conditions of confinement, our argument is, it's still appropriate to look to the traditions of the common law and public policy considerations to determine whether a cause of action in those circumstances is cognizable in 1983.

We've argued that it is not cognizable.

If he is challenging the validity of his misconduct determination, that's analogous to the common law tort of malicious prosecution.

The elements of that tort require favorable termination before it can succeed.

We believe that... that same element applies in a 1983 case.

So if he does not get favorable termination of his prison misconduct, he cannot bring a suit for damages under 1983.

Justice Scalia: It is essential to your argument, is it not, that provocation would be a defense?

Mr. Casey: No.

Justice Scalia: No?

Mr. Casey: Whatever... whatever charge--

Justice Scalia: If provocation would... would not be a defense, then even if he establishes provocation, for which he can get damages, he would not be impairing the judgment against him.

Mr. Casey: --One of the elements of the constitutional cause of action for retaliation is adverse action against the prisoner because of his protective conduct.

The adverse action in this case is not the staring down and the nose-to-nose confrontation.

The adverse action is charging misconduct, and we say, if he's right in his complaint that there would not have been a misconduct charge but for this action, that necessarily implies that the misconduct proceeding is invalid, and that triggers the analogy to malicious prosecution and its element of favorable termination.

Justice Souter: So that you say basically, the importance of Heck and Humphrey here is the way it says you ought to refer to common law analogies in analyzing whether there ought to be a 1983 action, and that has nothing to do in the final analysis with whether there's a collision between habeas corpus and 1983.

That is an... that is an independent requirement of the way you go about analyzing 1983 actions.

Mr. Casey: Yes, that's correct.

Justice Souter: So that even though there isn't a habeas corpus problem, you still go through the same methodology?

Mr. Casey: Correct.

You say the same methodology applies whether it's just conditions or duration of confinement.

If it's a--

Justice Ginsburg: Are you essentially making an exhaustion of... of state remedies then?

It seems to me... are you... you're not saying that this person would have no complaint, no Federal complaint, not in habeas, not in 1983?

Are you saying that--

Mr. Casey: --Yes.

Justice Ginsburg: --or are you saying 1983 is premature?

Mr. Casey: If he gets favorable termination.

We say--

Justice Ginsburg: Where does he get the favorable determination?

Mr. Casey: --The... if he got favorable termination by review of the misconduct... if he... if he had won at the misconduct or if he had appealed and won on appeal, that would be favorable termination.

Justice Ginsburg: So you're saying essentially he hasn't exhausted his internal administrative remedies, and that's why the 1983 is improper?

Mr. Casey: We say the... his failure to exhaust is another independent reason why he does not have--

Justice Kennedy: You're saying he has to both exhaust and prevail?

Mr. Casey: --That's correct.

They're independent requirements.

Justice Kennedy: And that seems somewhat inconsistent with at least the negative implication of the Federal statute, which says all he has to do is exhaust.

Mr. Casey: Well, the... the Court addressed that question in Heck v. Humphrey, and it said that even if a person exhausts his remedies, if he has not favorably terminated, he cannot bring the lawsuit unless and until he gets favorable termination.

They're... they're independent.

The exhaustion requirement--

Justice Kennedy: Well, that's the Heck v. Humphrey's gloss, but that's an additional requirement.

Usually exhaustion does not require prevailing.

Mr. Casey: --Well, that's correct.

That's correct.

The... the reason he has to get favorable termination in this case is because of the analogy to--

Justice Kennedy: Yes.

Mr. Casey: --malicious prosecution.

Justice Souter: Right.

Justice Scalia: It... it usually does not require prevailing, but it does require prevailing when... when your cause of action is that... that you have been subjected to the law improperly.

Mr. Casey: That's correct.

That's our argument.

Chief Justice Rehnquist: Thank you, Mr. Casey.

Mr. Casey: Thank you very much.

Rebuttal of Corinne A. Beckwith

Chief Justice Rehnquist: Ms. Beckwith, you have 3 minutes remaining.

Mr. Beckwith: Turning to the actual question presented in this case, there is no justification for the Sixth Circuit's rule extending the Heck favorable termination requirement to prison hearings that don't involve the fact or duration of custody.

Congress could have amended 1983 to say that, but we know from the PLRA they looked at the same considerations, they did something different.

The Sixth Circuit is an outlier here, as Justice O'Connor said, because there's no... there's no conflict with habeas in a... in a matter like this.

As to all of the other questions that have come up during this argument, this case came to this Court in the posture where there were no good-time credits and there was no exhaustion question.

Now, we think we can overcome those problems, but I don't think this Court needs to.

And the... the government has never cited any laws that says the guard's retaliatory conduct violating Mr. Muhammad's First Amendment rights would have been a defense, and we know of none.

They argued that it was... it was relevant to credibility.

They argued that that was some kind of a but-for relationship, but victory in the 1983 suit does not affect the adjudication for insolence in this claim.

All of this only matters if good-time credits are at issue.

And putting all of that aside, we just agree with Justice Breyer that then this is an easy case in our favor.

If there are no further questions from the Court, we'd ask that you reverse the Sixth Circuit.

Chief Justice Rehnquist: Thank you, Ms. Beckwith.

The case is--

Unknown Speaker: The honorable court is now adjourned until tomorrow at 10 o'clock.

Attribution:

The Oyez Project

Featured:

Chavez v. Martinez - Oral Argument

Fri, 09 Jan 2009 14:50:37 +0000

Case:

Chavez v. Martinez

Media File:

01-1444_20021204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Lawrence S. Robbins

Justice Stevens: We'll hear argument in Number 01-1444, Chavez against Martinez.

Mr. Robbins, whenever you're prepared, you may proceed.

Mr. Robbins: Thank you, Justice Stevens, and may it please the Court:

The Ninth Circuit held in this case that petitioner Ben Chavez could not assert a qualified immunity defense to a section 1983 lawsuit alleging that his interrogation of respondent violated the Fifth and Fourteenth Amendments.

We believe that ruling to be mistaken.

First, there was no constitutional violation at all on these facts.

But second, if there was a constitutional right implicated, that right was not clearly established in the particularized sense required by this Court's qualified immunity cases.

Officer Chavez could not reasonably have known that what he was doing violated that right, and the judgment of the Ninth Circuit should, therefore, be reversed.

Justice Stevens: May I ask this question on that point that you addressed before you get through?

Supposing he thought at the time of the questioning that the material... the answers would be used in evidence later on, and he knew that it would have been a violation of the Constitution to use those answers later on.

Would he be entitled to qualified immunity then?

Mr. Robbins: Yes, because the Constitution... well, because the first inquiry would be has the Constitution been violated.

Whether he thought--

Justice Stevens: But your... I'm just directing my question at... you sort of said even assuming a constitutional violation, he nevertheless is entitled to good faith immunity.

And I'm saying, well, assume the... the facts I've just granted, including an assumption that the... it would have been a constitutional violation to use the evidence.

Mr. Robbins: --Well, I think... I think the... the answer is that while... while he might have believed that the Constitution would in time be violated, because he could not himself violate it, he couldn't... he couldn't be liable under section 1983 for committing a Fifth Amendment violation.

So the point is you don't even get to the question of clearly established if there's no established constitutional violation at all.

Justice Scalia: But we... we do somehow extend the Fifth Amendment protection to the period before the actual introduction of the evidence in a criminal trial.

That is to say, we... we permit a witness to refuse to answer unless the witness is given... is given immunity from prosecution.

Now, how do you explain that, unless somehow the Fifth Amendment has some antecedent application before the evidence is actually--

Mr. Robbins: Well--

Justice Scalia: --introduced at trial?

Mr. Robbins: --I... I think you've put it exactly right.

It has some antecedent application.

That is to say, it applies prior to the moment at which it's actually violated.

The premise is we need to ensure against... in a way it's a prophylactic protection much like Miranda is.

That is to say, we will let you assert it in what is concededly, for example, a civil litigation setting, a simple deposition.

No one would suggest that that is a use in a criminal case.

But we allow you to assert it because if we didn't, it would compromise your ability to ensure that the right is protected later.

Justice Kennedy: Well, suppose in a civil case, the judge orders the witness confined to custody until he testifies in violation of what we can say in common parlance is his Fifth Amendment right to self-incrimination.

Is that not a violation then and there to... to confine the... the defendant until he testifies?

Mr. Robbins: I think it is consistent with a body of well... well-developed law that to penalize someone, particularly through that kind of a sanction, for the assertion of a right is in the nature of a... sort of an unconstitutional condition.

And there's a well-established body of law that says--

Justice Kennedy: I... I don't know that we usually talk about a violation as an unconstitutional condition.

We... we would say, Your Honor, I want my client released because you are violating his Fifth Amendment rights.

Mr. Robbins: --But I... I--

Justice Kennedy: And I think in a very realistic... real sense you are.

Mr. Robbins: --Yes.

I... I think there is a body of case law that says that if you are punished for the assertion of a right, then under the Constitution you can be relieved of that coercion.

However... but let me be clear... the actual violation of the Fifth Amendment is exactly what the text of the Fifth Amendment says.

It says that your right is not to be a witness against yourself in a criminal case.

I suggest, Justice Kennedy, that the result... that the holding in Murphy against the Waterfront Commission is inexplicable if you believe, as the Ninth Circuit does, that it is sufficient simply to coerce an otherwise incriminating statement because in Murphy against the Waterfront Commission, the holding of that case is that the State court was correct in requiring the witness to testify even though there wasn't a statute that protected him against incrimination because the Fifth Amendment itself provides the fail-safe that if you are coerced into giving an otherwise incriminating statement, it cannot be used against you.

And my central submission on the Fifth Amendment point... and of course, this is before we even get to the question whether Office Chavez could have... you know, has qualified immunity.

Our central submission on this is that you don't even have to get to that point because the fail-safe of the Fifth Amendment ensures that Mr. Martinez's statements could not be used against him in a criminal case if they were indeed legally compelled--

Justice Breyer: What... what in your opinion in the Constitution prevents a policeman from going and beating up a witness?

Mr. Robbins: --The Fourteenth Amendment.

Justice Breyer: So, the Fourteenth Amendment means that you could... in other words, your... your client could have violated the Fourteenth Amendment if... other things being equal--

Mr. Robbins: Well--

Justice Breyer: --because he was a witness.

He gets at least... at least the suspect--

Mr. Robbins: --Yes.

Justice Breyer: --gets the same pre-trial protection as a witness would, and the Fourteenth Amendment prevents coercion being used against a witness who doesn't want to testify.

Mr. Robbins: Well, let's be clear.

It doesn't prevent all coercion.

It prevents a subset of coercion that shocks the conscience for purposes of the... the substantive component of due process.

Unknown Speaker: The substantive due process.

Justice O'Connor: Yes, Justice O'Connor.

Mr. Robbins: That's correct.

But... but I think it is important that we not torture the language of the Fifth Amendment to accommodate the worry that police officers will torture witnesses because that concern is completely... can be completely accommodated, and routinely is in the courts of appeals, under the aegis of the--

Justice Breyer: You're not saying... those things that would violate the Fifth Amendment weren't introduced into trial do violate the Fourteenth Amendment for the similar reasons.

Mr. Robbins: --I'm sorry.

Justice Breyer: Well, I mean, could you say--

Mr. Robbins: Yes.

Justice Breyer: --that those things... you could say that.

Mr. Robbins: Yes.

You... you could say--

Justice Breyer: All right.

Then why didn't he violate the Fourteenth Amendment?

Mr. Robbins: --Well, he... well, again, let me... I... I want to answer that, but I... I... because this is a qualified immunity case, I always want to drop the footnote that we have an extra layer of protection here arising from the fact that none of these propositions could have been... none of the propositions adverse to us could plausibly be said to be clearly established within the right sense of the term.

Getting to your question, Justice Breyer, he did not violate the substantive component of the Due Process Clause because that inquiry turns on a set of concerns, including did the acts shock the conscience.

Were they committed with the intent to harm the witness in the sense required by Sacramento against Lewis?

The failure of the Ninth Circuit in this case with respect to the substantive due process analysis was that it thought that any interrogation which would render a statement involuntary and therefore inadmissible at trial must, therefore, give rise to a freestanding substantive due process claim, actionable and enforceable under section 1983.

That's just wrong.

Justice Ginsburg: Mr. Robbins, going back to the Fifth Amendment self-incrimination privilege, I take it the thrust of your argument is that a police officer who fails to give Miranda warnings quite deliberately, doesn't say you have a right to remain silent, doesn't say any of the rest of it, never commits a violation of 1983 unless and until there's attempt to use the information in court.

So you can say, police officer, you're not required to give Miranda warnings if we're not going to use this testimony in court.

Mr. Robbins: I am saying... I think the answer to that is yes.

The... the--

Justice Ginsburg: So that the Miranda is... is not an obligation of the police officer.

Mr. Robbins: --I... I respectfully beg to differ, and I... I also think... I must say, given the prominence of the Miranda discussion in the respondent's brief and in the green... green brief supporting respondent, I believe the Miranda concerns in this case are an utter red herring, and let me say why.

The sanction for the violation of Miranda is, in fact, that the statements taken in violation of Miranda cannot be used in the direct case of the government.

That's the penalty for Miranda, and if that happens, you get the statement struck in the direct case for the government.

Justice Ginsburg: But there... you're saying there is no 1983 penalty.

The penalty is you can't--

Mr. Robbins: I... I think there is no 1983 penalty, but the suggestion that as a consequence, because you don't have a freestanding section 1983 claim when the evidence never comes in, when the statement is never offered, the suggestion that that is therefore going to be... send a signal to police officers that they should violate Miranda, you know, at their... at their discretion I think is terribly mistaken, and for a very important reason and it's this: If you don't give Miranda warnings, you run a serious risk that the failure to give those warnings will be taken as part of the calculus under the Fifth Amendment voluntariness inquiry.

And a statement which is involuntary for Fifth Amendment purposes is unusable for any purpose at all, direct case, impeachment, derivative use.

The government then has to put on a Kastigar hearing to show that all of its evidence was independently derived, which is, as the Court said in Kastigar, a heavy burden for the government to meet.

It is a fool's errand I suggest, Justice Ginsburg... a fool's errand... to go about deliberately violating Miranda simply because the violation will not cause... give rise to a section 1983 violation.

Justice Kennedy: --I... I just have to tell you, I... I can see your... your point on Miranda.

Miranda is an exclusionary rule.

But I'm not sure that all of the Fifth Amendment is... is treated in that way because of the questions we've initially covered.

Mr. Robbins: Well--

Justice Kennedy: If... if you beat the defendant to get the defendant... to get the confession, it seems to me there's a very strong argument that that is a Fifth Amendment violation--

Mr. Robbins: --I think--

Justice Kennedy: --A Self-incrimination Clause violation.

Mr. Robbins: --I think... respectfully, Justice Kennedy, I think there is a wealth of this Court... this Court's cases that cannot be reconciled with the proposition that coercing a statement is enough by itself to constitute a Fifth Amendment violation.

Justice Breyer: All right.

You... I think you could say after... after 30 years or 50 years of... of jurisprudence, policemen know they're not supposed to beat up suspects or the... the equivalent.

And... and you can say, all right, at this point, I would think that does shock the conscience for a policeman to beat a confession out of somebody, and so I don't care if you call it Fourteenth or Fifth.

But then the question here would be, why in heaven's name, when the person is undergoing serious pain, or he thinks he's dying, where the doctors are saying, get out of here, et cetera, whatever they're saying, and he continues to press and then says, well, you're going to get your treatment after you confess... not confess... after... after you answer my question.

What were you doing?

Then we'll treat you.

He says, you want your treatment, you'd better... you better say something, et cetera, et cetera.

Why isn't that the equivalent of beating somebody up?

Mr. Robbins: Well, let me attempt, if... if I might, Justice Breyer, to... to very quickly answer Justice Kennedy's question.

I... I think the belief that the Ninth Circuit held that it's enough under the Fifth Amendment simply to coerce a statement that would otherwise be incriminating cannot be reconciled with Murphy and with the... with Balsys, with the immunity cases, with all the cases that stand for the proposition that so long as the use immunity has not been compromised, you do not yet have a substantive Fifth Amendment violation.

To turn, Justice Breyer, to your question, I acknowledge that there is coercion in this case.

We don't... we don't blanch on that.

There was coercion and the facts of this case are tragic, but the... but the reality is this.

This officer was there to find out a very important piece of information under extraordinarily exigent circumstances.

Justice Ginsburg: Well, was this tried below with a Fourteenth Amendment substantive due process claim?

Mr. Robbins: I don't know that it was denominated substantive due process.

I think--

Justice Ginsburg: Is that in the case?

Mr. Robbins: --I--

Justice Ginsburg: I mean, is it open to resolution on that basis?

Mr. Robbins: --There's... there's no question that the Ninth Circuit decided a Fourteenth Amendment due process question.

I don't think they... they labeled it substantive versus procedure.

And indeed, as we suggest--

Justice Ginsburg: Well, if--

Mr. Robbins: --they conflated the two.

Justice Ginsburg: --if... if we think the facts here show sufficient coercion to rise to the level of a violation of substantive due process under the Fourteenth Amendment, should the judgment be affirmed--

Mr. Robbins: No.

Justice Ginsburg: --but on a different basis?

Mr. Robbins: The judgment must be reversed, first, because there is not even a suggestion that the intent to harm requirement under Sacramento against Lewis has been satisfied.

And under this... in this kind of a case, you cannot have a substantive due... due process violation without that.

No one before you today has argued that that Sacramento against Lewis--

Chief Justice Rehnquist: What is... what is the source of the substantive... of the intentional harm requirement?

Mr. Robbins: --Is that... the source I... I suggest is the... the principles this Court articulated in Sacramento against Lewis for police conduct that's taken in enormous haste where... where there is not the opportunity for a second chance.

But let me go... there's a terribly important thing, Justice O'Connor, I have not yet gotten to say in answer to your question.

The further and perhaps most fundamental reason why it would be a mistake, I respectfully suggest, to affirm this judgment, even on the due process argument, is that this is a qualified immunity case.

So you must conclude not only that on balance this rises to the shock-the-conscience standard, but that it does so with such remarkable clarity that it must have been surely apparent to this officer that he was violating that standard.

You cannot find that on this record.

The Ninth Circuit thought so because of Mincey, which is a fair trial and admissibility of evidence case, not a freestanding substantive due process case and which had all manner of important differences from the facts of this case, including an absence... a total absence... of exigency.

With the Court's permission--

Justice Ginsburg: Exigency.

May I ask you a question about that?

You said the man was dying.

This was the only... only chance.

But there was an eyewitness, Flores, to this entire thing.

Why wasn't it enough for the police, if they wanted some view other than the police officers who engaged in the... in the shooting, just to interview Flores?

Mr. Robbins: --Well, I... I think the record suggests that he was not a completely clear... did not have a completely clear view of the facts.

But he's just one witness.

This is the man who was there.

Justice Ginsburg: Wouldn't he be a lot clearer than a man who... who is... who has been blinded, who has... was paralyzed, who's under heavy medication?

Mr. Robbins: Well, he... he was the most important non-police witness to these events, and I suggest that the officer would have been derelict not to have found out what happened from him, which is what he was trying to do.

And with the Court's permission, I'd like to reserve the balance of my time.

Argument of Paul D. Clement

Chief Justice Rehnquist: Yes, you may do so, Mr. Robbins.

Mr. Clement, we'll hear from you.

Mr. Clement: Thank you, Justice Stevens, and may it please the Court:

The Fifth Amendment privilege against self-incrimination safeguards the integrity of the criminal trial process and ensures that an individual is not convicted on the basis of a coerced confession.

But the privilege against self-incrimination is not a direct limit on the primary conduct of the law enforcement officers.

This is not to say that there are no substantive constitutional limits on what law officers may do to obtain information or to secure a confession.

But those limits are to be found in the Fourth Amendment and in the law of substantive due process, not in the Fifth Amendment self-incrimination privilege--

Justice Kennedy: So beating a prisoner to compel a... a statement is not a Fifth Amendment violation.

Mr. Clement: --That's right, Justice Kennedy.

It's not a Fifth Amendment violation.

It very well might be--

Justice Ginsburg: But it could be a Fourteenth Amendment violation.

Mr. Clement: --It very well... Justice O'Connor, it very well could be a Fourteenth--

Justice Ginsburg: And very likely would be.

Is there some intent element in that for the shocks-the-conscience--

Mr. Clement: --Well, I think generally, at least as I understand this Court's decision in... in Sacramento against Lewis, in these kind of executive action contexts where things are ongoing, I think there is some kind of intent element.

I think that--

Justice Ginsburg: --It's not enough, you think, to find that the officer should have known that you couldn't ask questions in the manner that was done here under these circumstances, and that to proceed gives rise to an inference of intent.

Mr. Clement: --Well, I'm not sure how intent would need to be proven in any particular case, but I would say the critical difference between the Fifth Amendment inquiry and the Fourteenth Amendment inquiry, when it's... when it's done in the context of the admissibility of a coerced confession, is in that context, what the courts are taking into account is the effect on the integrity of the trial process of using a coerced confession.

It's a different calculus, though, when you're trying to regulate primary law enforcement conduct because it strikes me that not everything that a law enforcement officer could do to coerce a confession... there... there may be some acts that may be sufficiently problematic that you'd certainly want to keep the confession out of the trial.

Justice Kennedy: What about the order of a trial judge in a civil case who orders the witness held in contempt and confined unless he testifies, and... and there's a valid Fifth Amendment privilege that the judge is overlooking?

No Fifth Amendment violation there?

Mr. Clement: No.

I don't think there's a Fifth Amendment... I don't think there's a complete Fifth Amendment violation.

The courts intervene there to protect the privilege.

Justice Kennedy: So, if you go in and you want a writ of habeas corpus and you don't mention the Fifth Amendment.

Mr. Clement: You mention the Fifth Amendment, but I think the important thing is the Fifth Amendment in this context works a... a bit like the takings clause.

And Justice Souter, for the opinion for the Court in Balsys, noted that the self-incrimination privilege is unusual because it's not purely and simply binding on the government.

It doesn't say that in all contexts, the government cannot coerce confessions.

What it says--

Justice Kennedy: Well, if there's a 1983 suit against a judge in... in this hypothetical case, what's... what's the violation?

Mr. Clement: --Well, typically those cases have been dealt with on... on habeas.

And what I would say is--

Justice Kennedy: Suppose it's a 1983 suit.

Mr. Clement: --If there's a 1983 suit in that context, I actually don't think a 1983 suit would lie in that context.

Justice Souter: Why wouldn't there be a 1983 suit provided that... and I think this is the assumption of Justice Kennedy's question... provided that the witness had invoked the Fifth Amendment?

There would be a 1983 action there because that is one at least of two instances in which we allow the Fifth Amendment to have an application in anticipation.

We say if he raises it, and they don't come forward with immunity, we're not going to let this entire process go forward to no avail since nothing can ever be admitted in evidence anyway.

The fact is we... the... the rule allowing it to be raised in anticipation I suppose would be the predicate for 1983 liability here.

That's not this case, but that... that would be true in the... in the case of the... the civil example that Justice Kennedy gave, wouldn't it?

Mr. Clement: I think that's a very good point, Justice Souter, and the Court has also treated in the penalty context--

Justice Souter: Well, is it good enough so that you concede there would be 1983 liability there; i.e., that there would be a violation of the Fifth Amendment in that case?

Mr. Clement: --I don't think so, but I think it would--

Justice Souter: Not that good.

Mr. Clement: --at least be a better case.

But as I was trying to say--

Justice Kennedy: Is there any violation in the case that I put, any constitutional violation?

I mean, that's... that's extraordinary.

Mr. Clement: --There is a... there is a... there... what there is is there is an ongoing interference with the Fifth Amendment right that the courts will vindicate, but there isn't a complete constitutional violation.

And I think the critical distinction is that, as... as Justice Souter said for the Court in Balsys, the privilege against self-incrimination is not purely and simply binding on the government.

The government can compel testimony in exchange for a valid grant of immunity.

What it can't do is compel testimony and attempt to use it in a criminal case.

And--

Justice Breyer: Well, maybe the... the point where it would make a difference I guess... nobody is talking about weakening or overruling Miranda.

We have Miranda on the books, and Miranda set some technical requirements.

You have to give a warning.

Now, a failure to give a warning, pure and simple, is not going to hurt anybody if that's never used in trial, so there isn't 1983 damages, unless you beat the person up.

Then there is.

And that comes under the Fourteenth.

But there are a set of cases where it will hurt people.

The set of cases where it will hurt people is where because they violated Miranda but didn't beat him up, and got a statement, they kept him in jail.

That's rather like the case Justice Kennedy's thinking of.

Unknown Speaker: So there he is in jail for a week or a month and he's been hurt, all right.

And the question I guess is... it's really not this case, but the question is, is there going to be a 1983 action in that kind of case?

Justice Breyer: And if you say it comes under the Fifth Amendment, the answer is going to be yes.

And if you say it comes under the Fourteenth Amendment, the answer is going to be no.

I don't know if we should... it seems to me what we're going to decide in this case is effectively going to decide that.

Mr. Clement: --No.

I don't think that's true.

I think that, for one thing, if the person is imprisoned on some basis, that may raise an independent Fourth Amendment violation.

There may be other--

Justice Breyer: Then he goes under the Fourth, and he claims he's wrongly seized and imprisoned because they got this statement out of him in violation of the Fifth.

That's... I mean, this is... this is what's... what's worrying me is not so much this case, but what we're going to write and the implications of it.

Mr. Clement: --And... and I think that this Court has already clarified in Balsys that what you need for a self-incrimination violation is both the coercion of the testimony and the use of it in a criminal case.

Justice Kennedy: But may I just interrupt, Mr. Clement?

Supposing there's a witness, a reporter or somebody, who claims a... a privilege against divulging information, and that... and the court holds him in contempt and locks him up for 30 days or something, and he claims he... his Fifth Amendment right was violated, you'd say there's no Fifth Amendment violation.

Mr. Clement: I would say there's no... there's no damages action.

Of course, he could get--

Justice Kennedy: So how could he get out of jail then?

Mr. Clement: --Well, he could get a habeas action to get out because the court would be granting relief--

Justice Kennedy: Well, I... I think--

Mr. Clement: --to protect the Fifth Amendment--

Justice Kennedy: --With all respect, I think you're evading the point that there... let's assume there's damage.

He's... he's locked up, as Justice Breyer says, for 5 days for not testifying, and you say there's no Fifth Amendment violation.

I can't understand that.

Mr. Clement: --Well, in any event, let me just say that the privilege works quite differently in the custodial context.

The reason that hypo even comes up is that in the context of a civil trial, the individual has to raise the... the Self-incrimination Clause themselves.

And we have a different rule that operates in the context of police custodial interrogation.

In that context, the privilege is self-executing.

The individual doesn't have to raise it.

And... as... the other thing that's different about the custodial context is that in the custodial context, this Court has not insisted on a pre-testimony grant of immunity.

They've always held that the exclusionary rules prevent a constitutional violation from occurring.

And if I could resort to the analogy to the takings clause.

In that context, it's not enough for the government to take property.

It's only a constitutional violation if the... if the government simultaneously takes property and refuses to grant just compensation.

In the same way, there's no self--

Justice Kennedy: But are you saying that... to go back to a question that was asked earlier, that if there... if the police just take somebody into custody and beat him up in order to get... get him to talk with no intention of using the evidence at all... they're just trying to investigate a crime... is there any constitutional protection against that kind of conduct?

Mr. Clement: --Yes, and it's the substantive due process protection.

Justice Kennedy: Okay.

Mr. Clement: And I think to get back to that point, what's important is in the context of trying to protect the integrity of the criminal trial process, I would think the courts would want to be quite careful about what they let into evidence.

But in the context of law enforcement officers, they're dealing with other objectives than simply trying to get a confession to secure a guilty verdict.

Justice Ginsburg: Well, on the facts of this case, should it be analyzed then under the Fourteenth Amendment for coercion--

Mr. Clement: It--

Justice Ginsburg: --an activity that might violate the Fourteenth Amendment?

Mr. Clement: --I think it should, Justice O'Connor, and I would respectfully suggest that that's best done on remand--

Yes.

--because, although there is a due process argument in this case, it's nobody's fault that in light of the... the governing precedent in the Ninth Circuit, the Cooper decision, that nobody thought that they had to prove shocks-the-conscience, or any of the factors relevant to a substantive due process inquiry.

Again, that's not the way respondents briefed the case, but one can hardly blame them for briefing the case they did, given that the Ninth Circuit had held under Cooper that as long as the conduct was sufficiently egregious to have the evidence be inadmissible, therefore you have a full substantive due process violation.

And I think it's--

Justice Ginsburg: And you disagree with Mr. Robbins who said, but because of the qualified immunity, you wouldn't send this back in any case.

Mr. Clement: --Well, I... I don't really disagree with him.

I think this Court could reach the qualified immunity issue if it wanted to, but I think perhaps the path of least resistance would be to just note that there is a substantive due process limit, and that's something that's best to be resolved on... on remand.

I think the important... oh, sorry.

Justice Kennedy: That's all right.

You can make that sentence, if you want to.

Mr. Clement: No.

Justice Kennedy: Okay.

Mr. Clement: Thank you very much.

Argument of Richard S. Paz

Chief Justice Rehnquist: Mr. Paz.

Mr. Paz: Justice Stevens, and if it pleases the Court:

I... I would start with simply the simple observation that the district court made a finding of fact in this case at page... it's 28a and 29 of the petition for writ of certiorari in the... in the appendix.

And it goes directly to the issue of what we've been discussing and that is the... the intent.

And just if I can back up a little bit procedurally, in argument today, for the first time I heard counsel say that they acknowledge there's no quarrel that there was coercion in this case.

In the district court, the entire argument was there was no coercion.

At the court of appeals, the entire argument was there was no coercion.

At the court of appeals and the district court, the... there was never a discussion or... or even was the case of Urquidez... Verdugo Urquidez cited for the fact of... that this was... the Fifth and the Fourteenth Amendments were only a trial right.

Those issues are being heard here for the first time.

They were briefed for the first time in the opening brief.

Cert was granted in this case on whether there was a violation of the Fifth Amendment, not... the Fourteenth Amendment wasn't even discussed on cert.--

So we've gone through this journey of ever-changing theories of... of liability in this case, but I think we have to go back to the beginning.

The district court found at page 28, finally defendants argued that Chavez was not attempting to abridge the right against self-incrimination to... to exact... extract self-inculpatory data or leads.

And the court goes on to then describe what was argued by the defense, that Mr. Chavez was there simply to find out what happened.

The court directly rejected that.

Justice Stevens: Mr. Paz, I'm sorry.

I don't... your page 28 in the cert petition?

Mr. Paz: It's 28a in the appendix of the... of the petition for cert, yes, Justice Stevens.

Justice Stevens: And where?

I didn't... I don't find it on that page.

Mr. Paz: It starts at the... at approximately the... the bottom of the page.

Justice Stevens: "Finally defendants argue #"?

Mr. Paz: Yes.

Justice Stevens: Okay.

I'm with you.

Mr. Paz: Yes.

So the district court carefully looked at the evidence that had been presented, and the district court decided the case really because the testimony of Chavez at the time the tape recordings that he made on the day of the incident and his deposition testimony... he said simply, I'm investigating the crime.

I was there to investigate what... the crime had been committed, the crime of attempted murder on two police officers on the theory that somehow or other this farm worker had taken away the officer's gun and was going to use it on the officers when they shot him.

That was the core of the case.

That was all of the evidence in the case.

The subsequent declarations that were submitted were only submitted after... after Mr. Martinez submitted a motion for summary judgment that as a matter of law, using all of the evidence provided by the defense and giving them the benefit of the doubt on all the evidence, that there was a violation of the Fifth and the Fourteenth Amendment.

Justice Scalia: Mr. Paz, let me... let me tell you why I have difficulty with the proposition which you're urging, which is that any coercion that would suffice to require the confession to be excluded from... from trial is also a coercion that violates the Fifth Amendment, not... leaving substantive due process aside.

Suppose you have a situation in which a... a felon has taken a hostage and buried the hostage somewhere, and suppose that it is possible for the police official to use a degree of coercion which would not shock the conscience.

It isn't beating the person with a rubber hose, but let's say failing to give a Miranda warning, or using a... a sort of trickery that... that would amount to coercion, threatening perhaps, you know, if you don't confess, your brother will be prosecuted or something like that.

It would be sufficient to exclude the testimony from the confession from the trial, but the policeman doesn't care about that.

Unknown Speaker: He wants to save the life of the... of the hostage who's been... who's been buried.

Justice Scalia: Now, you would say that that... that policeman by extracting that confession has violated the Fifth Amendment.

Mr. Paz: There may be a violation, and... and I would agree that most likely if... if it was in violation of Miranda, there would be... there would be no... it would not be admitted into a criminal case.

Maybe... it may be under the Quarles exception.

Justice Scalia: What... you'd say that the person would... would have a... a 1983 action against the policeman?

Mr. Paz: No.

No, I think clearly that's the kind of a case in which qualified immunity was designed to prevent.

Qualified immunity gives as... as it did in... in--

Justice Scalia: Only because of qualified immunity?

Justice Kennedy: Well... well, let... let's assume that we decide the case, and then this happens a second time.

Mr. Paz: --Then... then clearly--

Justice Kennedy: You have to answer Justice Scalia's question.

You can't get away on qualified immunity.

Mr. Paz: --Oh, no, no.

I would say--

[Laughter]

I... I would say Quarles gives us the direction.

When there is an immediate danger, when there's a danger to the public, then clearly there would be no constitutional violation.

The Court has already made that decision.

I... I don't think that that's really an issue that we have to struggle with.

Justice Scalia: You can violate the Fifth Amendment when there's a danger to the public?

Mr. Paz: That's what Quarles, I believe, says.

Quarles says that... that the Miranda violation was not... was not sufficient.

And I... as I... as I recall in Quarles, the evidence was admitted against him.

He... he said, the gun is over there, and that evidence came in to prove the violation of... of possession of a weapon.

So I think that the Court implicitly said that we're... in this emergency situation, that there is no... no Fifth Amendment--

Justice Scalia: You... you think this applies not only to the... the unique aspect of the Fifth Amendment that... that Miranda constitutes, but to all Fifth Amendment violations.

Mr. Paz: --No.

What I... I think once it becomes coercive, once it becomes physical, once it becomes... then I think that you would interfere with the core values of... of the Fifth Amendment.

Justice Kennedy: Justice Scalia's hypothetical asked about coercion.

There was no coercion in Quarles.

There was just an absence of Miranda warning.

Forget Miranda.

Let's just talk about coercion.

Is there a Fifth Amendment violation in the case that he put where there was... there's an element... there's a... there's a degree of coercion?

There's no Miranda warning.

That's out of the case.

There's no sovereign... qualified immunity.

That's out of the case.

Justice Scalia: Coercion to keep it out of trial.

Mr. Paz: I... I would say yes that there is a Fifth Amendment violation.

The question then would be, what is the remedy?

Under those--

Justice Scalia: --section 1983.

Mr. Paz: --No.

Justice Scalia: I mean, if it's a Fifth Amendment violation, you can sue the policeman.

Mr. Paz: Under those circumstances--

Justice Scalia: Well, this person who goes to prison for... for putting this person in a... in a grave begins a suit when he's in prison suing the... suing the policeman.

Mr. Paz: --And I don't believe that's... that would be the conclusion because the remedy would not be appropriate because there had been, as we saw in... in Saucier versus Katz, there's a situation in which the police have to act, and so the police act if it's reasonable, even if it's a reasonable mistake, even if they have the wrong guy and they try to coerce the wrong person, it may be reasonable under an emergency circumstance.

Justice Scalia: I see.

So let's assume somebody is... you think he's going to blow up the World Trade Center.

I suppose if... if we have this necessity... this necessity exception, you... you could beat him with a rubber hose.

Mr. Paz: I would hope not, Your Honor.

Justice Scalia: Oh, it's necessary.

Mr. Paz: No.

I think--

Justice Scalia: Since when is... is necessity a... you know, a justification for ignoring the Fifth Amendment?

Mr. Paz: --Your Honor, only in the limited situation.

I think the first hypothetical you gave me... gave us was you simply were going to ask him questions repeatedly.

Now, I... I don't think the rubber hose example was before me.

Justice Scalia: Do you know... okay.

Do you know any of our... any of our cases that... other than Miranda which, you know, is... is in a field by itself, do you know any of our cases that say that there is a necessity exception to the coercion prohibition of the Fifth Amendment?

Mr. Paz: Not at all, Your Honor.

Justice Breyer: So maybe the answer would be that... that it's not... the Fifth Amendment... the... the Miranda rules are methods of enforcing the Fifth Amendment so that if all is violated in... in Justice Scalia's hypothetical is a Miranda rule and the person is not proceeded against in court and the person has not been physically injured in any way and has not suffered any real harm except not being read a right that didn't matter anyway, he would have no damages.

Mr. Paz: That would be correct.

Justice Breyer: So he could bring his lawsuit, but he'd gain nothing.

Mr. Paz: I would agree with that analysis.

Justice Scalia: Except that my hypothetical was not Miranda.

My hypothetical was that he was coerced in some fashion other than the failure to give a Miranda warning, and short of beating with a rubber hose.

Justice Kennedy: Yes.

Mr. Paz: The distinct... the distinct difference in this case is... and I understand that the exigence is... the exigent... the... the terrorist situation is a difficult one.

It's not our case.

Mr. Martinez was riding a bicycle home.

Justice Breyer: It's not your case.

That's right.

Mr. Paz: There was no call.

There was no crime.

There was nothing that had happened except he was riding his bicycle home.

So we really can't... I don't think that this is an appropriate vehicle.

There may be such a case that will at some time--

Justice Ginsburg: Well, maybe this is a Fourteenth Amendment case, not a Fifth Amendment case at all.

Mr. Paz: --I did... I did consider that.

And... and I think clearly it is a Fourteenth Amendment violation under all the cases--

Justice Ginsburg: Was it tried on that basis--

Mr. Paz: --Yes.

Justice Ginsburg: --presented on that basis?

Mr. Paz: Yes, Justice O'Connor, it was.

It was... it was... that was the allegations from... from the beginning.

But... but--

Justice Breyer: I don't see why the Fourteenth.

I mean, the Fourteenth... the Fifth applies to the States because it's incorporated in the Fourteenth.

Mr. Paz: --Correct.

Justice Breyer: And... and therefore, if in fact you violate the Fifth in... in a way that's significant, not just... I mean, causes significant harm, not just you didn't read a Miranda right, but you hurt somebody, then why wouldn't the Fourteenth carry that through to the--

Justice Ginsburg: --By way of the Fourth Amendment.

Mr. Paz: Yes.

I believe it does.

I believe the history... and the history... the early cases, the... the Bram case in 1897 began with the concept of the... of the Fifth Amendment protecting all of the rights.

And of course, Bram was a case in which... it was against the United States.

But as... as... there's an evolution that I've... I've seen through our cases that... that show that the Fourteenth Amendment, once it was incorporated, it actually incorporated the Fifth Amendment privileges.

It actually... the Fifth Amendment was really the... the core values of what the Constitution meant to embody.

It goes back to... Bram cites the early... early cases in England where, although the right against self-incrimination was an evidentiary rule, in Bram they... they laud the fact that it became a constitutional rule, that it became immutable so that no act of Congress... as we decided in Dickerson not too long ago, no act of Congress could change that.

So--

Justice Ginsburg: But isn't it clear by now in our cases that if a policeman uses excessive force that rises to the level of a Fourth Amendment violation, that we will address it under that amendment, that the Fifth Amendment, the language of it refers to use in trial of the testimony?

And... and you don't have that limitation--

Mr. Paz: --I would--

Justice Ginsburg: --under a substantive due process claim.

Mr. Paz: --I would disagree with you on one point, and that is the... the language of the amendment talks about a criminal case, and in our brief, we did talk about the meaning, the distinction between a criminal trial and a criminal case.

And all of the... all of the language... the most recent is in Hubbell.

There's the discussion about the fact that the Fifth Amendment covers... the values of the Fifth Amendment covers everything from civil to administrative to bankruptcy cases.

The Arnstein case in 1923 talked about the Fifth Amendment protecting a bankrupt person in a bankruptcy proceeding, not even involving a criminal proceeding at all.

So the extension of the Fifth Amendment goes to really the core values.

We just don't force people to talk, and the State can't do it.

And--

Justice Scalia: Excuse me.

I... you... you mean... you say it extends to a bankruptcy proceeding.

You mean you can refuse to provide testimony that can be used against you in a bankruptcy proceeding?

Mr. Paz: --That was the holding in Arnstein in... in 1923, and a bankrupt person who was under the bankruptcy proceeding simply said, I have a right to remain silent.

I don't want to answer these questions.

The court upheld that right in the bankruptcy proceeding.

So early law certainly didn't... didn't say it had--

Justice Scalia: Simply because he didn't want to answer the questions, or because--

Mr. Paz: --They may--

Justice Scalia: --the... the questions would incriminate him--

Mr. Paz: --That's correct.

Justice Scalia: --in a criminal proceeding.

Mr. Paz: That's correct.

Justice Scalia: Well--

Mr. Paz: But... but there was no criminal proceeding--

Justice Scalia: --Well... yes.

There wasn't any yet pending.

I mean, I think we all understand that you... that you acquire some pre-trial Fifth Amendment rights to... to remain silent, but whether that means that there has been a Fifth Amendment violation before the entrance is... evidence is introduced in trial is... is a separate question.

Mr. Paz: --I--

Justice Scalia: Nobody questions that... that there are some aspects of our Fifth Amendment law which... which allow you to plead the Fifth Amendment before the evidence has been introduced in trial.

Mr. Paz: --And... and once the... the right has been given to the... to the American people to plead the Fifth Amendment in any pre-trial proceeding, including an... an interrogation at... after a... after a shooting such as this, and after the person is the sole suspect of a horrible crime, then obviously that is part of the criminal case.

That is part of the entire criminal process.

If we would say we only have a Fifth Amendment right to remain silent if we introduce it into a court... into a court proceeding, then Mr.... persons like Mr. Martinez who were never charged with a crime would have no remedy.

Justice Scalia: But it doesn't have to be part of the criminal case.

I mean, as... as your bankruptcy example indicates.

Mr. Paz: I agree.

I agree, Justice Scalia.

I think it's important that we try to focus on what really are the bright lines here.

We have three bright lines that were violated by... by Sergeant Chavez in this case.

The first is clearly coercion that goes back to... to the early cases.

The second bright line is that there was... there was an invocation in this case.

Mr. Martinez twice said, I don't want to talk.

Leave me alone until they give me medical treatment.

There was invocations implicitly.

When he first opened his mouth, he says, leave me alone.

Leave me alone.

I'm dying.

Those are the first words out of his mouth.

That's an invocation.

No reasonable police officer, no... no basically trained police officer could believe that questioning a fellow in his condition was permissible.

Justice Kennedy: This... this question is somewhat like Justice Scalia's question.

Suppose the same facts so far as the hospital was concerned, but that the... that the incident involved a kidnapping and the injured person, your client, was a witness to the kidnapping.

Chief Justice Rehnquist: We wanted to know what the kidnapper looked like so we could get the child back.

Mr. Paz: Then it's clearly... he's not a suspect.

Clearly, it... questioning is... is obviously needed.

It's necessary.

Of course.

But... but--

Justice Kennedy: Well, if... if the questioning... and suppose he says, go away, I'm sick, I'm sick.

And they said, no, no, we want your answer.

Why is there coercion in... no coercion in that case--

Mr. Paz: --Because he's--

Justice Kennedy: --but coercion in your case?

Mr. Paz: --Because he's not a suspect.

Because he's... he isn't the sole--

Justice Kennedy: But that's... that's a Miranda question.

Mr. Paz: --I think not.

Justice Kennedy: And... and it's a... well, it's also a basic Fifth Amendment question.

Mr. Paz: It is.

Justice Kennedy: But why isn't... why isn't the element of coercion the same in each case?

Mr. Paz: Because the... the constitutional obligation.

When the person is a suspect, the constitutional obligation rises above.

That's the difference.

Justice Breyer: Well, that... for purposes of a damage action, not for purposes of Miranda, or what's admissible.

But for purposes of a Miranda action, should a suspect be in a better position than a totally innocent witness insofar as the police beating him up is concerned?

Mr. Paz: No, I would think not.

Justice Breyer: No.

All right.

Unknown Speaker: Well, if they're... if they're the same, then I... I guess it would be... you'd get to the same result.

Justice Breyer: If they had beaten him up or been coercive, it should be the same problem whether he's the witness or the suspect.

And if they've gone past whatever point is reasonable, I guess there should be damages.

And if they're doing it for a good reason because they want to stop an attack or something, well, that's just the way it is.

And... and that's... I'm trying to figure out if that's what the law is and what the right words are to get to that place and how you deal with this mass of... of constitutional rules, if... if that's the proper result.

Mr. Paz: I think the proper result is... is given... given Justice Kennedy's hypothetical, the proper result is if this is a... a witness who has information about some exigent circumstance, then there... the Fifth Amendment doesn't attach at all.

And obviously the officer is not going to use leading questions, coercive questions to get information.

The basic concept of getting information under those circumstances is you want it to be trustworthy.

You don't want the officer putting words into the person's mouth and brow-beating them to come up with something that's a bad lead.

So obviously we want to have the kind of questioning that would be, in fact, seeking the truth as opposed to putting words into someone's mouth as what occurred in this case.

The... I'd like to address a point that's been raised, and... and it may not be totally necessary.

I'd just like to make the distinction that the... the basis, the entire heart of the discussion that coercion is somehow permissible unless the cases are introduced into a criminal case or into a criminal trial are... are the... the immunity cases.

In the immunity cases, they... they... I believe that the defense has... or that the petitioners have totally confused the grant of immunity and coercion in a public trial after a grant of immunity where a person is told, you must answer the questions.

And... and the distinctions is one is an inquisitional situation where if the officer has a person alone and they're forcing them to answer questions, there is no public trial, there is no judge there to make sure that they're... they're not being... there is no overreaching, there is no brow-beating.

The person who was even under a grant of immunity can say, I'm not going to talk, and face the consequences of going to jail and sit in jail with dignity and say, I'm not going to talk.

I believe that it's more important to assert my right not to speak than to be... than... than sitting in jail.

Our law still doesn't allow the court or the jailers to use coercion to extract their statement.

A person in this country still could have the dignity to say I don't want to speak and I'll take the punishment, and if it's just punishment, that it's been done by a court, then that is not coercion, the kind of inquisitional coercion that this... that this Court and the United States has always said we don't tolerate.

Are there any other questions?

Justice Ginsburg: Going back to your earlier distinction between the suspect and a witness, if someone is suspected of kidnapping a child, and that child is not going to live without some medication... I believe this example was brought up in one of the briefs... and the suspect, whatever answer, will certainly be incriminating, the police may not exercise any coercion to get the suspected kidnapper to tell where the child is so the child could get life-saving medication?

Mr. Paz: I believe that there can be some questioning, and I think that the questioning has to be... even if it's forceful questioning, there must be limits.

And it's... certainly it's a balance because it has to take into account what is the circumstance of this person.

The danger in saying I agree with that hypothetical, Your Honor, is that what if the person is the wrong person.

What if the suspect really isn't the person who kidnapped the person?

What if they're just wrong and they got the wrong person?

That's the danger, and that's why we have to--

Justice Ginsburg: And on the other side is... is the life of a child.

Mr. Paz: --That's correct.

And it's... it's always a difficult choice, but we have... we have to--

Justice Scalia: --it's difficult at all if they know that this is the fellow that did the... they have all sorts of evidence.

They know this is the guy that... that buried the child, or deprived the child of medication or whatever.

It's not a hard question at all.

Mr. Paz: --Then I think... I think that there is... we have to look at Quarles for guidance and, again, it has to be the degree of the... the degree of coercion that is permissible.

It's difficult to say that any coercion is permissible.

But again, given... with the limited hypothetical and limited facts, it's... it's difficult to make a judgment at this point.

Justice Scalia: Mr. Paz, what do you... what do you do with the Murphy case that's relied upon so extensively by... by Mr. Robbins?

As I understand that case, it was a State legislative commission which accorded immunity to the witness under State law, but of course could not accord immunity under Federal law.

And we held that the witness, nonetheless, had to testify, and we said, of course, if the feds try to use the evidence, it will not be admissible because it was... it was obtained under coercion.

But we, nonetheless, allowed the State to compel the testimony.

Now, were we allowing a Fifth Amendment violation?

Mr. Paz: No, Your Honor.

That... that was, as I understood, that the... the use immunity that was granted in... in Waterfront was extensive with the privilege.

It was allowed... that is, as I understand the reading of the case, was that the privilege that... that the... the immunity that was granted was sufficient to cover both any State prosecution as well as Federal prosecution.

Justice Scalia: No, no, no.

That wasn't the case.

That was the whole problem.

The State could not grant immunity from Federal prosecution.

It... it granted immunity only from State prosecution.

And we said, nonetheless, the State could... could lock the person up until he testified.

And the only consequence would be that if he did testify, it would not be introducible in Federal trial because it... it had been coerced.

Now, I... you know, it's a bizarre case, but it does seem to stand for the principle that Mr. Robbins asserts, which is that there's no Fifth Amendment violation until the evidence is introduced.

Mr. Paz: We all make mistakes, Your Honor.

[Laughter]

Justice Scalia: You think... you think that was one of our mistakes.

Unknown Speaker: [Laughter]

Justice Breyer: Did you... did you come up anywhere in your... in your research on this with anything that suggests that... that once the person is a suspect, and once he's in custody of the police, that the criminal case has begun?

Mr. Paz: Yes.

Justice Breyer: Or is it clear that that isn't?

Is it clear that the criminal case that the Constitution refers to is... is not really begun until it's what we'd call technically is a criminal case, the filing, you know, indictment, or... et cetera?

Mr. Paz: I... I think there was good language in... in Colorado versus Connelly.

Justice O'Connor wrote a concurring opinion I think that covers the point quite well that said that... and there was also the--

Justice Breyer: It says that... what?

That the criminal case had begun at the time he was in custody?

Mr. Paz: --As I recall, the... the discussion was that there had been an argument that the... that Mosley's statement... that that by using Mosley's statement, because there had been no police coercion, that it was permissible because the purpose of the... of the rights, the Fifth Amendment, was to prevent police misconduct and coercion.

And... and in that context there was a... there was a discussion about... that the... that the... that there was... that because the rights protect outside of the criminal case and outside of the trial, that there was no... there would be no deterrence.

There would be no reason to enforce it at that point.

Also there was Michigan versus Tucker.

Both Michigan and... and Colorado versus Colony... Connelly both discuss about a two-part inquiry.

Should... should we... and the Court indicates in both of those cases that there's an analysis of whether the police officer conduct violated the Fifth Amendment, and then secondly, what is the remedy.

So really, those two cases talk about the difference between the right pre-trial in the custodial interrogation setting, as well as... as does Miranda, and the difference between the remedies that the court considered.

Any further questions?

Thank you.

Rebuttal of Lawrence S. Robbins

Chief Justice Rehnquist: Thank you, Mr. Paz.

Mr. Robbins, you have, I think it's, 3 minutes.

Mr. Robbins: Thank you, Mr.... Justice Stevens.

Let me just quickly make a couple of points.

It seems to me that petitioner can win this case the hard way or the easy way.

The easy way is recognizing that this body of law is, as one of the members said this morning, a complex of constitutional issues with cross currents that cut in a variety of directions, that in light of Verdugo Urquidez, in light of Sacramento against Lewis, it cannot be said that any of these constitutional principles was sufficiently clearly established to warrant the rejection of qualified immunity.

But I want to win it the hard way.

First, because under Sacramento against Lewis, the standard for substantive due process is intent to harm.

That wasn't pled.

That wasn't tried.

There's no such argument before you today.

No one thinks that if Sacramento against Lewis applies, there can be a substantive due process claim at all.

That's why it wasn't in the complaint.

And no one here before you is suggesting intent to harm.

Now, on the Fifth Amendment, Justice Kennedy, I'd like to take one more crack at the concern that you've articulated because I think it is... it is in fact possible to square those concerns with the holding in Murphy against Waterfront Commission which, as far as I can tell, is perfectly good law and consistent with what this Court said in footnote 8 of Balsys about the fail-safe of use immunity provided directly by the Fifth Amendment.

So long as the government has not compromised the availability of use immunity under the Fifth Amendment, there hasn't been a Fifth Amendment violation.

In each of the penalty cases that are suggested by your hypothetical, that's what the government has done.

They have said to the witness, you may not have immunity.

You may not assert your Fifth Amendment.

If you assert your Fifth Amendment right, we're going to put you in lock-up right now.

The Court has consistently said, you know, if you forfeit the use immunity and actually put a guy in jail because he insists on it, that's as good as use.

That's a protection that stems from the Fifth Amendment itself.

And that's... that explains all of the so-called penalty cases.

The police... the Garrity case in New Jersey, the two Lefkowitz cases out of New York.

That explains... what is, in fact, going on there is someone is being punished or penalized for the assertion of a privilege, including the right against use.

But as long as the fail-safe in the words... Justice Souter, that you used in... in footnote 8 of Balsys, as long as the fail-safe of use immunity has not been compromised, as it has not been in this case, there is not yet a full Fifth Amendment violation, which can only happen when there's a use in a criminal case.

And that is exactly the point that this Court in Verdugo Urquidez said in the passage that the Ninth Circuit decided to call dictum and ignore.

That was a big mistake.

And on that ground alone, it's the Fifth Amendment portion of its decision--

Justice Stevens: But, Mr. Robbins, why couldn't... why couldn't--

Mr. Robbins: --that should be reversed at the first threshold.

Justice Stevens: --Why couldn't you view the continued questioning under the circumstances of this case as tantamount to punishment when you have locked somebody up who won't answer questions?

Mr. Robbins: Well, I... I think because... well, for one thing, the availability of use immunity is still there.

What you... what I think it would... what I think... what I think it would amount to is continued coercion of a statement which arguably at some threshold, once you cross it, does indeed become too coercive to render the statement admissible.

But that's when the Fifth Amendment fail-safe steps in and says, you may not use it.

That would violate the Fifth Amendment.

But because the fail-safe wasn't compromised in this case, as it was in the line of cases suggested by Justice Kennedy's hypothetical, there cannot be a Fifth Amendment, and we don't even have to reach the question of qualified immunity.

Justice Stevens: Thank you very much, Mr. Robbins.

The case is submitted.

Attribution:

The Oyez Project

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Correctional Services Corp. v. Malesko - Oral Argument

Fri, 09 Jan 2009 14:50:25 +0000

Case:

Correctional Services Corp. v. Malesko

Media File:

00-860_20011001-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF CARTER G. PHILLIPS ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in No. 00-860, Correctional Services Corporation v. John Malesko.

Mr. Phillips.

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

The issue in this case is whether an action for damages under Bivens should be applied to a private corporation acting under color of Federal law.

Like many cases, where you come out on a case like this, I think in many ways depends on where you begin, and the parties have put forward to this Court fundamentally conflicting paradigms with respect to the best way to analyze Bivens based on this Court's prior decisions.

The respondent and the court below essentially concluded that Bivens is a ubiquitous remedy that ought, generally, to be available in order to maximize recoveries and to maximize, or at least optimize, deterrent values, and that it is our burden essentially to try to ascertain whether there might be some conflicting or some exception to the Bivens doctrine that would get us out from under liability in the... in this particular case.

The--

Mr. Phillips: Mr. Phillips, do you... this... this involves only an action against the corporation not against its employees.

Mr. Phillips: --That's correct, Justice O'Connor.

Mr. Phillips: Would... if the action were brought as a Bivens action against the employees, do you concede that there would be a Bivens action against them?

Mr. Phillips: We have always assumed, from the first day of this litigation, that a Bivens action would lie against the individual employees.

Mr. Phillips: Well, there's a difference between assuming it arguendo and conceding it.

Mr. Phillips: Well, for purposes of this litigation and for purposes of my client, there's no question we would concede that an action would have legitimately been... been raised against them.

To say in a future case whether or not a private employee might raise an argument as to whether Bivens should be extended is a separate question.

Mr. Phillips: Now, if that's... if that's true and that concession holds, if the employee is sued for a wrongful act, under State law would it be permissible in your view, just under standard principles of derivative liability, to hold the corporation for that tort, for the tort of its own employee?

Mr. Phillips: You mean under a theory of respondeat superior.

Mr. Phillips: Yes.

Mr. Phillips: As a matter of State law, it's going to depend on the State.

Most States I think do recognize respondeat superior liability.

Mr. Phillips: So, State courts... State courts could do that without interference with any Federal policy or... or without any superseding Federal law to the contrary.

Mr. Phillips: Well, obviously, there's going to be at least the potential argument raised with respect to Boyle and whether or not the... the decision to hold the individual liable under those circumstances is preempted under Boyle.

But I think the argument here is slightly weaker than it was in Boyle, and it probably depends to a certain extent on... on the... on whether or not the Federal Government in fact is dictating what both the... what the employer and the employee are doing with respect to--

Mr. Phillips: Well, if that's true, the employer, I assume, would routinely be named in the suit.

So, you're not doing a whole lot by saying that the employer is independently liable for its own... for its own participation in the... or alleged participation in the tort.

Mr. Phillips: --Well, I think you're doing an extraordinary amount, Justice Kennedy.

And the Government's brief, I think quite rightly, points out at page 20 in footnote 10, that the availability of a corporate defendant significantly changes the mix with respect to any kind of litigation.

And actually, if you look at the three cases that postdate this Court's decision in FDIC v. Meyer, all of those are cases in which the only defendant who was named happened to be the corporation.

The individuals were not named under any of those circumstances.

Mr. Phillips: But Mr.... Mr. Phillips, if the... if the proper way of looking at this is the principal agency relationship, when you're dealing with the Federal Government, the Federal Government is the principal, the agent is the officer.

Here, when the Government contracts, the principal agency relationship exists with the corporation.

So, I don't see why it doesn't follow that the agent... the agent in this case is the corporation... why the agency liability doesn't carry over.

Mr. Phillips: The... the premise of your question, Justice Ginsburg, I think is where the... where the mistake lies in the final outcome of the decision.

This Court made quite clear in FDIC v. Meyer that it's not a principal agency relationship because there's no question that the Federal Deposit Insurance Corporation was the agent of the United States Government for purposes of what it did in that particular context.

The Court said that's not the right analysis.

The right analysis is to go back and look at the Bivens action and make a judgment with respect to whether or not the litigation, as it comes to this Court, adequately serves the two primary purposes of Bivens; that is, that there is relief available and that there is an effective deterrent in place.

If those... if those are satisfied, then the issue of whether you should extend Bivens to a new category of defendants, this Court said, should be answered in the negative, saying that there is no reason to add additional defendants under those circumstances.

Mr. Phillips: Mr. Phillips, I wish somebody here were arguing on behalf of the employee.

It's... it's certainly in your interest to say, well, of course, there's liability on the part of the employee.

And it's... it's in the interest of... of your opponent to... to say the same.

I'm not... I can see us deciding this case on, you know, well, after all, there's a suit against the employee.

Shouldn't we face that in a... in a case in which somebody is... is arguing that the employee is not liable?

Mr. Phillips: No, Justice--

Mr. Phillips: And there are arguments to that effect.

I mean, after all, the... the employee you say is an agent of the United States, but if... if he's acting under color of Federal law as an agent of the United States, he's only an agent of the United States because he's... he's an agent of... of your client.

So, he's sort of an agent of an agent.

It would seem very strange to me to hold... to hold the employee and not to hold your corporation.

Mr. Phillips: --Well, the question ultimately comes down to this, Your Honor, is that does it make any more sense in this context to resolve this issue at this point in time than it did to decide the FDIC v. Meyer case at that point in time.

Because, again, we didn't have the employee involved in the litigation as it came to this Court.

He had fallen out in that litigation, just as the employee had fallen out in this litigation.

And what the Court said was, we should analyze and, indeed, have to resolve the conflict as to whether a private corporate defendant ought to be liable under these circumstances.

So, that issue needs to be resolved.

And, what's more, if the Court puts off for another day deciding the liability of the employee, it doesn't affect whether my client ought to be held not responsible in a Bivens action because either one of two things will happen.

Either you will conclude that private employees are, in fact, susceptible to an action under Bivens, in which case the adequacy of the remedy and the adequacy of the deterrent by having that direct lawsuit means that there's no reason to extend Bivens to my client.

Or you'll conclude that the distinction is between public and private actors and that we have special reasons giving us hesitation and caution into extending the Bivens action, since it's an implied cause of action and not a congressionally adopted one, into the sphere where the private actors are acting under color of Federal right.

Mr. Phillips: Strictly speaking, Mr. Phillips, for you to say that you're making a concession that the employee... I mean, that's like a lawyer representing A saying he concedes B would be liable.

Mr. Phillips: I was only--

Mr. Phillips: I mean, it's not much of a concession.

Mr. Phillips: --I was simply answering Justice Kennedy and Justice O'Connor's question.

They phrased it in the form of a concession, to be sure.

Mr. Phillips: I know they did.

Mr. Phillips: I'm not giving up much in that regard.

But as I say, the important element here, at least in my judgment, about how all this plays out is that if the Court decides that employees are amenable to suit, there's no reason to sue the corporation.

If they decide they are not amenable to suit, it's going to be because of the public/private distinction.

And again, under that theory, we're not amenable to suit.

Mr. Phillips: Mr. Phillips--

--Well, it could be on... on the basis that they're an agent of an agent, that we're not going to track it that far down.

I mean, you... it's your corporation that has been hired directly by the Government, not the individual employees of your corporation.

I mean, that's certainly another basis on which one could draw--

Mr. Phillips: That would be an argument, but in order to do that, Justice Scalia, you would then have to abandon what was one of the principal legs of Bivens in the first instance, which is that the litigation against the private individual and the deterrent value of litigation against the private individual is the most significant way to achieve the overall objectives--

Mr. Phillips: --Well, I don't know that we would have to abandon that because the... the concern, as I understand it, that the action against the individual has a more significant deterrent effect than the action against the agency, was a concern that was expressed in the context of dealing with a public agency.

Here we're dealing, in the case of your client, with a private corporation.

And I would suppose that the deterrent effect of holding the private corporation liable for the acts of its employee would be very significant.

I assume that a private corporation like yours is going to be very careful about employees who, in effect, saddle it with significant liability.

So, on the deterrence theory, it seems to me you... you would lose the argument.

Mr. Phillips: --I think the flaw in your analysis of the deterrence theory, Justice Souter, is that you're looking to figure out what is sort of the optimal answer for deterrence.

And the way I read this Court's decision in FDIC v. Meyer is that what we satisfy ourselves about is, is there an effective deterrent and an effective damages remedy in place and available to the individual plaintiff in a particular instance.

And that... it seems to me that's the gap-filler role that Bivens calls on the Court to... to provide.

When you go beyond... I'm sorry.

Mr. Phillips: I'm sorry.

You finish.

Mr. Phillips: But when you go beyond that, it seems to me you then assume much more of a legislative role.

Then you're trying to balance the relative optimal deterrence values.

Then you have to take into account the effect on the Federal fisc or the relationship between the... the Federal contractor and the Federal Government.

And that's a series of questions, I submit to Your Honors, you ought to leave to Congress.

And that's exactly what the Court said in Meyer.

It analyzed and said, questions of optimal deterrence, questions of effect on the Federal treasury, those are issues that we think are better dealt with by Congress as long as we have an adequate--

Mr. Phillips: Yes, but if you carry... if the carry the logic of that argument far enough, then there would be no liability at all because we know that if we hold, for example, the individual liable, there is going to be a tendency there to shift that liability either by insurance or by respondeat superior and insurance, ultimately to the cost of contracting.

And we know, even in the governmental situation, if you hold the individual liable, chances are there is going to be some kind of liability mitigating mechanism, whether it be insurance or whatnot, that ultimately is going to find its way into the wage structure.

So, if... if we start getting too fussy about that, we better call the whole thing off and... and overrule Bivens.

Mr. Phillips: --Well... obviously, we don't ask the Court to overrule Bivens.

At least, we make that argument in the brief.

But the... I think the answer to that is there are two components of Bivens.

One is, is there in place the gap-filler adequate remedy?

Is there a damages remedy and a deterrent effect from that damages remedy?

Is that in place?

Then sometimes, even though that's in place, there will be a serious question as to whether or not, nevertheless, special circumstances suggest that there ought to be caution.

And it's frankly the... the respondents burden to satisfy both elements of that.

What I'm suggesting to you in this context is you don't have to look at what the impact would be on the Federal Government at the end of the day.

What you have to look at is whether there is an adequate remedy in place, and if you didn't have that, I think there would be a serious--

Mr. Phillips: How is this adequate remedy?

The... as far as deterrence is concerned, I thought Richardson explains why the deterrence considerations with the private company work perfectly, but they don't work at all where the principal is the Federal agency.

And that's what I think Justice Souter was pointing out.

Mr. Phillips: --Right.

Mr. Phillips: As far as alternative remedy is concerned, which alternative remedy?

If you mean would there be a remedy under State law, that of course exists in Bivens too.

If you mean that you could sue the private person under Bivens but not the company, if that's what you mean, the individual but not the company--

Mr. Phillips: Correct.

Mr. Phillips: --well, the next case the individual, if we say you can sue the company, would say the same thing.

So, I mean, you see it's six of one, half a dozen of the other.

The private person would say you have an adequate... do you see my point?

Mr. Phillips: Well, you made two... you made two points, Justice Breyer.

Mr. Phillips: The private person... you... you could have... if... if you're going to allow corporations, they say, oh, no, you have a private remedy against the individual, which I'm sure you conceded for that reason.

The individual would say, oh, no, you have a perfectly adequate remedy against the corporation.

I concede that you have a perfectly valid remedy, yes.

[Laughter]

What?

He would say, I concede that you have a perfectly--

[Laughter]

Exactly.

That's right.

Mr. Phillips: Indeed, I may be making the argument--

Mr. Phillips: So, why then, given that conundrum, deterrence: Richardson.

Adequate remedy: the problem we stated.

Conclusion: make it a parallel to 1983.

Mr. Phillips: --Well, now you've made three points, Justice Breyer.

And let me try to take them up in... in turn.

First of all, with... with respect to Richardson, I mean, that's an immunity case, and the Court is in a world where it has to resolve optimization in the immunity context.

That's a judge-made set of rules, and this Court is obliged to resolve it in the best way that it can under those circumstances.

It's a fundamentally different question about whether you hold the defendant liable in the first instance in a private... privately implied cause of action derived directly under the Constitution.

We could differ and disagree about what's the right method of... of achieving optimization, but I don't think you can read Richardson as saying categorically that you will... you will lose all your deterrent effect.

To say that is I think to both abandon what you said in Bivens and clearly abandon what you said in Meyer.

With respect to the ability of the private person to come in and argue the next time around, his argument I think, frankly, is going to be a tough one because what he's got to say is even though you have now held the corporation not to be liable... I'm assuming for purposes of the moment that I win here... that... that we, nevertheless, also ought not to be liable.

And, again, as I said earlier, I think the distinction there is between the... having a remedy in place that is in any meaningful way effect or not, and therefore it is a tougher argument for the private employee under those circumstances to make that particular argument.

And then your last point with respect to section 1983 simply disregards what I perceive to be the fundamental difference between having a congressional enactment that comprehensively regulates a particular area provide liability against any person and sets up a set of rules in... in order to effectuate that particular remedy and the situation we face in Bivens where, heretofore, we have never imposed... this Court has never--

Mr. Phillips: And... and--

Mr. Phillips: --I'm sorry.

Mr. Phillips: --in 1983, too, in Monell we rejected the idea there could be any sort of respondeat superior liability.

You had to show that the... there was a policy maker involved and that sort of thing.

Mr. Phillips: That's absolutely correct, Mr. Chief Justice.

Mr. Phillips: Is that not present here, Mr. Phillips?

Because the policy of saying people who live above... below the fifth floor, that's a policy set by the employer.

So, this is a case where it's not an assault by a guard.

This is a case of policies set by the corporation itself.

Mr. Phillips: Well, there are two answers to that, Justice Ginsburg.

First of all, no policy gets set by a corporation as such.

All... all policies, just like all actions of corporations, have to be undertaken by individuals.

Somebody had to have adopted that policy.

But second of all, I don't read the respondent's complaint here to have alleged any policy of the corporation was at fault here.

The... the complaint itself specifically says there was an exception made for the respondent so that he could take the elevator.

A specific employee who was named as a defendant--

Mr. Phillips: Not in... not in the written policy.

It wasn't written down and that's why this guard didn't get it.

But anyway, at this stage, we have to construe the complaint most favorably to the plaintiff.

Is that not so?

Mr. Phillips: --Well, I... you can construe it most favorably to the plaintiff, but not necessarily to embrace a complete different theory of the case that is far from clear.

And this is... and remember, this was written by counsel.

This is not a pro se complaint we're talking about.

This was counsel's complaint.

I think if they had meant for this to be a policy or practice case, they would have said so.

But I think the more fundamental point here is... is that... is that there has to be a policy maker.

If that policy was unconstitutional, then it's still available to the plaintiff in a Bivens action to sue that policy maker directly for having adopted the unconstitutional policy and to sue the employee for having implemented the policy in an unconstitutional fashion.

So, there are adequate remedies, which means that the remedy against us is inappropriate.

If there are no further questions, I'd reserve the balance of my time.

Mr. Phillips: Very well, Mr. Phillips.

Mr. Lamken, we'll hear from you.

ORAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

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

When an inmate in a federally operated facility is subjected to a constitutional deprivation, that inmate has a remedy against the individual Federal officers who committed the constitutional deprivation.

There is no indication that that Federal remedy is inadequate for--

Mr. Phillips: Are you making that as arguendo, or are you conceding that?

Now, your brief seems to make a concession to that effect.

Mr. Lamken: --In the first instance, we think it should be assumed arguendo because if there's a reason not to subject the individuals, the private individuals, to liability under Bivens, it would be that private individuals have so few immunities and so few defenses, compared to their governmental counterparts, that there's no reason to infer a Federal cause of action.

If it's true with respect to them, then it's a fortiori true with respect to the corporation as well.

Mr. Phillips: Why couldn't you say the same about joint tortfeasors?

Mr. Lamken: Pardon?

Oh.

Mr. Phillips: Why couldn't you make the same kind of argument about joint tortfeasors?

You'd say there's no reason to hold two.

We have one.

Mr. Lamken: Well, in fact, with respect to joint tortfeasors, you have two separate actions.

They're both liable for their--

Mr. Phillips: Why wouldn't the second... you'd say we'd only give you one, whoever you sue first, because it's adequate.

Mr. Lamken: --Well, you need to deter both of the joint... the actions by the joint tortfeasors.

Mr. Phillips: And here we have to deter the policies of the corporation.

Mr. Lamken: Yes, but the corporation is an unusual tortfeasor in this sense, in that it cannot act except through other individuals, through its employees.

So long as you deter--

Mr. Phillips: But that's true across the whole law of torts.

I mean, I've been lumbering along for half a century under respondeat superior.

I thought this... this was a deterrent to the employer if the employer is liable for the employee's wrong.

Why is it suddenly different?

Mr. Lamken: --Well, if this were a common law court or a legislature, I could certainly see adopting the common law rule.

But the Court... this is not a common law court, and what... Congress has the principal role of establishing causes of actions, Federal cause of action, for damages.

So, the role of the Court is not to establish--

Mr. Phillips: It just rings... it just doesn't ring true to me that there's no deterrence by holding the corporation liable.

I... I thought the whole law of torts was based on a contrary assumption.

Mr. Lamken: --Well, in fact, Your Honor, if you look at, for example, the fifth edition of Prosser & Keeton on Torts, William Prosser tells us that that argument is makeweight, and that the real reason for holding the corporation liable under respondeat superior is to ensure that the costs of accidents are incorporated into the price of products and, therefore, spread to society at large.

In a context like this one, where you have one purchaser, the Government, and the cause of action is unique to where the Government is the purchaser of the service, that type of rationale can't hold water.

This Court is generally very cautious about imposing liability for the purpose of distributing money--

Mr. Phillips: Except that one purchaser gets its money from everybody.

I... I think nobody can spread... can spread the cost as well as the Government.

[Laughter]

Mr. Lamken: --Yes, Your Honor.

But it is typically... this Court is typically most cautious about establishing rules that would have the effect of taking money from the treasury, which is under Congress' control and to be spent for the public good and spending it according to--

Mr. Phillips: That's... that's a different argument which... which you make, that we shouldn't--

--May I ask you--

Mr. Lamken: --That... that--

Mr. Phillips: --It would be, in effect, the same as holding the Government liable.

Mr. Lamken: --Well, in this case, where you have a uniquely governmental purchaser and a uniquely governmental cause of action, it does tend to have that effect, Your Honor.

Mr. Phillips: May I ask you a hypothetical that Mr. Phillips' last argument suggested to me?

Supposing you have a case in which an executive sets the policy that everybody has to climb the... the six flights of stairs every day.

Then the executive quits.

Five years later, an employee is compelled to climb the steps because that policy is in place.

Whom can he sue?

Mr. Lamken: Well, Your Honor, when... when prisoners in public institutions, federally operated institutions, encounter precisely that situation--

Mr. Phillips: No.

I'm assuming, of course, there's a corporation involved here.

Mr. Lamken: --But it shows that this... that type of situation is hardly unique to a private corporation.

It... it occurs all the time in Federal institutions.

And he would be able to sue first any employee who enforced the... the policy.

Mr. Phillips: All the employee is doing is carrying out his instructions.

Mr. Lamken: Right, but there is under Bivens no Nuremberg defense.

Each... one of the teachings of Bivens is that the responsibility for respecting constitutional rights is personal and individual, and therefore, liability for violating constitutional rights is also personal and individual.

It ill-serves that notion of personal responsibility to shift the liability from the... from individual... individuals who violate constitutional rights to some other source of money such as the shareholders or the Government.

Mr. Phillips: Supposing the policy also said any employee who fails to carry out this policy gets fired forthwith.

Mr. Lamken: That would be the same thing if a... if an individual Bureau of Prisons employee--

Mr. Phillips: --the individual liable for--

Mr. Lamken: --Individually liable.

Plus you also get to sue the policy maker and anybody who exhibited deliberate indifference in carrying on that policy.

It's precisely the same rule that exists in the Federal context when you have a... a Bureau of Prisons-run facility.

Mr. Phillips: --Why does it make a large difference whether you sue the CEO or the corporation itself?

Practically in terms of your interest as the Government money, if the corporation is going to pick up the tab, why does the Government care?

Mr. Lamken: Well, Justice Ginsburg, I think the rub is in the question, if the corporation is going to pick up the tab.

The corporation will not necessarily pick up the tab.

The Government, for example, does not routinely indemnify its employees before a judgment or even necessarily after judgment.

On occasion, we both decline to indemnify them.

Sometimes we decline to represent them.

Sometimes we criminally prosecute them ourselves.

The point of the matter is to avoid moral hazard, to ensure that there is that deterrent effect, both corporations and the Government alike are wise not to indemnify their employees in advance and refer only to indemnify in those circumstances where it's both in the corporate interest and in the interest of ensuring that the corporation or the individuals--

Mr. Phillips: You also may get larger judgments against the corporation than... than against Jack Armstrong personally.

No?

Mr. Lamken: --That is one of the difficulties and that is one of the reasons why there is concern that individuals, if given the opportunity, will choose to sue only the corporation and not the individuals.

And as Mr. Phillips pointed out, in the three post-Meyer cases where this issue has come up, in each of them, the individual chose to sue only the corporation and not the individual.

And, therefore, the direct deterrent effect on the individual, the direct deterrent effect that exists and operates within the Federal Government, would be absent in the other context if the Court were to recognize a Bivens against corporations as well as the individuals who violate--

Mr. Phillips: If... if the Government--

--If we reject your position and impose Bivens liability on the corporation, I assume Congress can't do anything about that absent some supplemental scheme that's equally effective?

Mr. Lamken: --Your Honor, it's not clear the degree to which Congress can replace Bivens liability.

I would believe that Congress would have the ability to either... if this Court were to decide not to have corporate liability, Congress could act to establish that liability, or if the Court were to say that there is--

Mr. Phillips: The other way around.

Mr. Lamken: --The other way around is a more difficult question.

I don't believe this Court's cases are clear.

However, if Congress does establish an alternative remedy, I believe the Court would be very likely to respect it unless it is clearly inadequate for the purposes.

Mr. Phillips: I don't understand that.

If Congress established an alternative remedy, we might say that the Constitution no longer requires the Bivens... the Bivens remedy.

Mr. Lamken: No, Your Honor.

As I read Bivens--

Mr. Phillips: But if Congress just... just decides that we're wrong in saying that there's a Bivens remedy here, what could... what could Congress possibly do about it?

I mean, if... if there is a Bivens remedy here, it's one that's demanded by the Constitution.

Right?

Mr. Lamken: --Well, Your Honor, it depends on how you read Bivens.

Bivens itself doesn't purport to be compelled by the Constitution, that the Constitution requires it.

It very much relied on cases like J.I. v. Borak where the Court felt that it was in a position to sort of assist in the vindication of constitutional rights, even if it were not mandated or compelled by the Constitution.

Where the Court... where the Court uses its discretion to do that, however, the Court must be particularly cautious about it so that it does not usurp the role of Congress as the principal creator of... of causes of action for damages under the Constitution.

If there are no further questions.

Mr. Phillips: Thank you, Mr. Lamken.

Mr. Pasternak, we'll hear from you.

ORAL ARGUMENT OF STEVEN PASTERNAK ON BEHALF OF THE RESPONDENT

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

The question before the Court today is whether the Bivens cause of action is applicable to a for-profit corporation carrying out a core function of the Federal Government.

There's no dispute that in operating the Le Marquis Prison, CSC was performing a core governmental function.

There's an important distinction, both as a matter of history, constitutional law, and common sense, between Government and private corporations, between the Government way of doing things or the Government model and the private market model.

The Solicitor General so recognized 4 years ago in the oral argument in Richardson v. McKnight.

And the distinction exists due to the differences in accountability, its mission, and the degree of control that exists over the employees.

As far as accountability, the Bureau of Prisons, as a Federal Government agent, is accountable to Congress and to the public, as opposed to a private for-profit corporation, like CSC, which is responsible to its shareholders.

It has no one appointed onto its board from either Congress or the President.

Mr. Phillips: Well, Mr. Pasternak, if Bivens remedies are available against the employees of the corporation, why isn't that enough?

Mr. Pasternak: Because of the mentality that exists as far as the corporation, Your Honor.

It's the corporation that has a direct relationship with the Federal Government.

It's the one that has the contract.

Mr. Phillips: Yes, but the corporation can only act through its employees, and if those employees are subject to Bivens liability, if they are, why isn't that enough to deter any unconstitutional conduct?

Mr. Pasternak: It wouldn't be sufficient because the employees are at-will employees.

Their job is on the line.

Their promotions are on the line.

They're following the directions as far as the corporation in order to get ahead.

While the--

Mr. Phillips: How can you generalize that the employees are at-will employees?

I mean, that would vary perhaps from case to case.

Mr. Pasternak: --In the State of New York, they're at-will employees.

Mr. Phillips: But we're deciding a case not just on the basis of the State of New York, but maybe in some other States, they have a 3-year contract.

Mr. Pasternak: It may vary from State to State.

It may vary from individual to individual, but the focus still has to be that it's the corporation that has the control, and to determine whether or not there's a breach as far as the employee's contract or whatever, it's the one that's setting the policies that the individuals have been following.

Mr. Phillips: Mr. Pasternak, do you think running a municipally owned utility is a core governmental function?

Mr. Pasternak: It's possible that it may be.

Mr. Phillips: May be.

What about running a national park or a public park?

Is that a core governmental function?

Mr. Pasternak: Getting further removed.

I think it might be, but again, it's not a prison situation.

Mr. Phillips: We're going to develop a whole new area of constitutional or quasi-constitutional law deciding case by case what is a core governmental function and what isn't a core government... you assert that only... only those corporations that are performing core governmental functions would... would be subject to Bivens liability, not all corporations who are under contract with the Government.

Mr. Pasternak: If I may respond.

As far as the 1983 analysis or under the Federal Tort Claims Act, the same type of analysis has to be done to determine whether or not you have a Government actor and then whether or not there was a violation that takes place.

In our fact pattern here, there's no real question that in operating the prison, it is a core governmental function.

They are authorized to act because the... the Government has contracted with the corporation and has embodied it with the power, in order to act and to run that facility.

Mr. Phillips: Have... is there a whole line of cases under section 1983 dealing with this subject of what is a core governmental function?

Mr. Pasternak: There's not a whole line of cases, but there is... there are cases, Your Honor, that have to be addressed as far as either a Federal Tort Claims Act case or a section 1983 as to the issue of whether or not Amtrak, for instance... whether it would be acting as a Government agent or not.

Mr. Phillips: Does it have to do with whether it's performing a core governmental function or not?

It has to do with whether it's a Federal agency or not.

That's quite a different question from whether it's performing a core governmental function.

I'm talking about a concededly private corporation, and... and you want us to decide case by case when... when you hire a private corporation to manage concessions at a... at a national park, whether that is a core governmental function or not.

Mr. Pasternak: I think anytime you're dealing with a corporation as opposed to a Government agency, there are different things that come into play as far as what their motives are.

Mr. Phillips: I thought you just wanted us to decide a case involving prisons, which can be run by a State, by the Federal Government, or can be contracted out by either.

Mr. Pasternak: That is what our fact pattern is.

Mr. Phillips: And this is a substitute for a Federal prison just as sometimes Federal prisoners are housed in State prisons.

Mr. Pasternak: That's correct.

Mr. Phillips: And would there be liability in that situation?

Suppose this halfway house had been run by the State of New York.

Mr. Pasternak: Then there would be liability for the violation of the Federal Constitution, and there would be no difference.

In fact, this particular facility housed both State and Federal prisoners--

Mr. Phillips: And as to the... so, if... if Mr. Malesko had been a State prisoner?

Mr. Pasternak: --Then he would have his claim.

We would literally have to be checking the dog tags of the individual housed at this particular facility under the same fact pattern to determine, under the CSC's argument, whether or not there would be liability.

And we submit that that's the wrong analysis to make, that a Federal prisoner should certainly have equal, the same rights as a State prisoner.

Mr. Phillips: May I clarify a point that I raised to Mr. Phillips?

Is your complaint one of a pattern or practice attributable to the corporation as distinguished from the action of the individual guard?

He said that you did not plead any kind of policy on behalf of the corporation.

Mr. Pasternak: There are different elements as far as what was pleading in the complaint.

There was initially a pro se complaint that was filed.

The only substitution that really took place at the time of the pleading was to name the individual guard.

That was ruled to be untimely by the court because Mr. Malesko should have known... arguably should have known or should have been trying to find out who that individual was.

The problem that exists, obviously, is trying to identify who the individuals are that set the corporate policy.

As far as the specific policy, there was the policy of putting Mr. Malesko up on the firth floor, as opposed to a lower floor.

Mr. Phillips: Was that pleaded as a policy?

Mr. Pasternak: Not pleaded directly as a policy, no.

Mr. Phillips: You say not pleaded directly as a policy.

What do you mean by that?

Mr. Pasternak: Well, again, we're going back to the language of the pro se complaint.

Mr. Phillips: Yes.

And that's what I was asking you about.

What did the pro se complaint say about it?

Mr. Pasternak: He did not allege it as a policy per se.

He alleged it that it was improper as far as the housing.

We have the situation where you have him housed--

Mr. Phillips: In fact, he did allege that he was permitted to use the elevator usually, didn't he?

Mr. Pasternak: --He did.

Mr. Phillips: Yes.

So, he couldn't have been complaining about the policy then.

Mr. Pasternak: Well, there's still a complaint that would exist... I mean, there is a possible claim as far as the ADA and just the general logic of housing somebody with a known heart condition on the fifth floor where he would be susceptible to being ill in the event of a fire.

I mean, it doesn't make any sense, as they acknowledged in discovery, in order to have someone housed on that higher floor if there's a danger that exists.

It just doesn't make any sense.

Mr. Phillips: I thought his heart attack made it hard to climb stairs, but going down stairs might be different.

[Laughter]

I would like to hear directly your... your response.

The Chief Justice had a point I hadn't thought of, which is true, that in Monell, there isn't direct respondeat superior liability in a case involving an entity that does not have sovereign immunity, namely the municipality.

All right.

How... how does that play out here?

Mr. Pasternak: Here--

Mr. Phillips: What is that... should there be respondeat superior?

Is it necessary to parallel the Monell?

What's your opinion?

Mr. Pasternak: --I would argue that under either situation, we would satisfy the requirement.

Under the respondeat superior, we would certainly satisfy it.

Under the Monell standard, it's the failure to adequately train and supervise the guards.

Mr. Phillips: All right.

So, you can go either way.

But what in your opinion is the correct rule of law?

Mr. Pasternak: If we're looking for parallelism between the two, then it would make sense to have the Monell standard, but it not necessarily has to follow because under common law, we would have the respondeat superior.

I would argue for the respondeat superior and to have it as a normal liability as you do in normal cases.

Mr. Phillips: Well, we rejected parallelism in Richardson.

Parallelism... symmetry is very difficult to achieve in this area as of this point, no matter what we do.

Mr. Pasternak: It was rejected and symmetry is difficult to achieve.

However, we are seeking symmetry in the sense that a private corporation should be held accountable the same way it is acting under a contract with the Government and the same way a State prisoner would have the same remedy against the corporation--

Mr. Phillips: Well, you're arguing the so-called parallelism with section 1983 actions.

But it's been pointed out that was a congressional enactment, and there is no parallel enactment for Bivens type claims.

That was a Court-created doctrine and it's been rather limited.

Mr. Pasternak: --It has been limited.

It is Court-created, in order to address deterrence, but it has been applied to the situation of a nongovernmental... nongovernment or to a nongovernment agency.

In this situation, the question that arises is where does a private for-profit corporation fall on the spectrum.

Is it more akin to a Government agency which has to be responsible to Congress, to the President, and to the public, or is it more akin to a regular Federal employee?

We would submit that it's closer to a Federal employee, only it has certain negatives worse than a Federal employee in the sense that it has a duty, a fiduciary duty, to try and maximize profits, a factor that would not normally enter into the situation of a Federal employee who's just going along and doing his job and fulfilling his requirements.

But here you have a specific fiduciary duty to maximize the profits.

They also... the person who were in control.

There, the corporation is the one that controls its employees and sends the directives as far as hiring, firing, promotions, benefits.

It is the one that has the control and can send the signals on to each individual employee.

So, as far as where it falls in the scheme, we would submit it is more akin to a Federal employee, only there are greater dangers which would warrant the imposition of the Bivens liability in order to have the proper deterrence.

Mr. Phillips: Why shouldn't we leave this to the Federal Government, to the Congress, to determine, rather than doing it ourselves?

Mr. Pasternak: For the same--

Mr. Phillips: I mean, we can say this is a totally different situation from what Bivens, whether it was right or wrong, decided.

That decided a case where you have a Federal officer acting.

These are not technically Federal officers.

If there is going to be a cause of action, Congress can create it.

If Congress hasn't created it, there's no cause of action, which is the usual situation in the world, isn't it?

Mr. Pasternak: --Oftentimes.

However, the issue here is the Federal employee under Bivens is acting because the Government has delegated that responsibility to him to act.

In a sense it's a contract.

He's been hired to act.

So too, you have the corporation who has been hired by the Federal Government pursuant to the contract in order to act and to satisfy what the requirements are.

Mr. Phillips: It may be logical to extend it.

It may well be.

And if it's logical, presumably Congress will do it.

And also, there... there is undoubtedly a State law cause of action in negligence that would lie against both the employee and the employer under respondeat superior.

Mr. Pasternak: There would be a common law cause of action.

However, that would not necessarily address the separate constitutional violation that occurred that needs its own deterrence.

Mr. Phillips: Would there have been a State cause of action against Federal agents acting under... under Federal law?

Mr. Pasternak: You would have the issue as far as normally you would have the immunity that would be granted under the State law, and you would have the problems in that direction.

But we do not have--

Mr. Phillips: Which means that there's a special reason for the court to invent a cause of action that does not appear anywhere in the Constitution or in a statute for Federal agents who perhaps can't be sued under State law.

But when you're not talking about Federal agents... you're talking about private employees... normal tort law undoubtedly applies.

And why... why can't we leave it there?

And... and if Congress wants to extend an additional cause of action, let... let Congress do it.

Mr. Pasternak: --Since we are dealing with a violation of the Federal Constitution, we would submit that there should be one uniform body of decisions coming out as far as what that Federal law should be and how it should be interpreted, that we should not be subjected to the vagaries of the differences in the various States as to their rules as far as procedure, discovery, but there should be one... one body of law encompassing, from the Federal side, a violation of a Federal constitutional right.

It's not sufficient to just leave it to the States.

Mr. Phillips: Well, is it clear that the employee would be liable under State law in light of Boyle v.--

United Technologies?

Mr. Pasternak: In McKnight, the argument... rejected the argument of Boyle, as far as a corporation being... not being liable and a danger as far as the public fisc.

In this type of a situation, we would submit that it would be appropriate to find the corporation liable and that the dangers to the public fisc are minimal, certainly more minimal than you would have in the normal Bivens case, we would submit.

Mr. Phillips: Well, of course, McKnight rejected parallelism, and... and you... you want it.

McKnight is not your best precedent.

Mr. Pasternak: Not entirely, but we are seeking to have the parallelism also as far as a... rights of a Federal prisoner and a State prisoner, to both be able to go and sue the corporation that is--

Mr. Phillips: But you have an anomaly either way because why shouldn't the symmetry be between someone who is a Federal prisoner in the Federal prison and someone who's a Federal prisoner in a private prison?

You recognize that there would be no action against the Bureau of Prisons if the Bureau of Prisons had been the jailer.

So, why should it be... why shouldn't that be the symmetry?

Mr. Pasternak: --Because the Correctional Services Corporation is not the Government.

It operates under a different set of rules and regulations.

Mr. Phillips: But you want it to be like the State government, because if it were a State... if a State were running this prison, then there would be liability.

Mr. Pasternak: Yes, but what I'm looking for is it for not... for it to be recognized by this Court that the private corporation, just like the State, is not the Federal Government.

There is no Federal Government immunity that applies.

That's the reason we can sue the States if there's a violation.

So too, we should certainly be able to sue a private corporation, a private corporation which is operating under a different set of rules and regulations than is the norm for the Federal Government and for a Federal agency.

Mr. Phillips: With respect to the adequacy of a remedy in the State court, is it not so that the liability would be greater as to a private employee because the private employee would not have a defense of qualified immunity that would be available to a Federal officer?

Mr. Pasternak: There would be less defenses raised as far as a private individual.

That's correct.

Mr. Phillips: And that would tend to make the State law remedy more adequate?

Mr. Pasternak: Possibly more adequate but still inadequate in order to address a Federal constitutional violation.

Mr. Phillips: Well, you're saying that... I think you're saying the State law remedy simply doesn't address the constitutional violation.

The State law remedy may be a State tort remedy, but it's not an Eighth Amendment remedy.

Is that you're--

Mr. Pasternak: That is correct.

Mr. Phillips: --You know, there's one puzzling thing about this case.

You don't really cite the Eighth Amendment in your complaint, as I read it, do you?

That is, it isn't an Eighth Amendment claim where you're claiming deliberate indifference on behalf of the prison officials?

Is that the nature?

Mr. Pasternak: It does... it is an Eighth Amendment, but it is not cited.

Mr. Phillips: And then, therefore, your burden in the Federal claim under the Eighth Amendment is heavier than an ordinary negligence case, isn't it?

So, by going into Federal court, you... you've assumed a higher burden than if you brought a negligence case.

Am I correct in that?

Mr. Pasternak: Well, both theories would be applicable as far as being... bringing the suit.

There would be a higher standard in the Federal court as far as the deliberate in difference--

Mr. Phillips: Right.

Mr. Pasternak: --a standard which we submit we would... my client, in filing the suit pro se, satisfied.

He would also be satisfying a lower standard as far as the negligence as well.

Mr. Phillips: Was this complaint ever amended since your client gained representation, or are we still operating under the pro se complaint?

Mr. Pasternak: It was amended only for the purposes of... of attempting to name Mr. Urena as a defendant, and then there was a proposed second amended complaint which would be naming additional defendants, which... and I believe also different causes of actions, but that was denied at that time.

Mr. Phillips: At... at... it's puzzling why there wasn't enough time to identify that individual, that Mr. Urena.

I could understand the pro se litigant having a limited ability, but once lawyers came into it, why wasn't... why was it so hard to find out who was John Doe I?

Mr. Pasternak: My appearance came after the time period.

Mr. Malesko had the case, and there was a motion that was initially made to dismiss the case.

It was only after that case, that that motion was denied, that my... that I came into the case.

So, he had the case pro se for the entire time period where he would have had to identify who the John Doe was and would have had to know how to conduct the discovery in order to ascertain who the John Does were and the difficulty that he would have, as far as the corporation's responsiveness to identifying who Mr. Urena was, who set the policy as far as the elevator, who set the policy as far as the medication, who set all of the policies.

It's not an easy burden for someone to try and identify who the specific person is that would have to be sued, which is why the suing of the corporation is a more manageable one from the plaintiff's point of view.

It would also be a more manageable one from the defendant's point of view, we would submit, also because it would allow the corporation to be the one who's controlling the litigation.

It would be avoiding potential conflicts that exist by naming the individual employees and having them go out and retain their own counsel.

It would limit the... it would reduce the cost of the litigation for the defendant because you're ultimately looking at the corporation, and it would only have to have one set of attorneys as opposed to a multiple set of attorneys.

So, the cost to defend would go down as far as the corporation.

If we're also operating under a claim under Federal law, then the rules of the game, as far as the discovery, as far as the motion practice and general procedure, would also be under the Federal law as opposed to the State law, so that it would be easier for the corporations to control their costs because they would know how to be defending this type of an action.

And in fact, hopefully, these types of actions would be decreasing as the liability would be there.

There are certain programs that would be going into place by the companies to make certain that everybody has the proper training in order to avoid these types of constitutional violations.

Indeed, that's one of the reasons that we submit that there would really be no danger to the public fisc.

In the normal situation, you have a suit against a Government employee where the Government afterwards comes in and it either has provided counsel and will also pay any judgment that exists.

Mr. Phillips: Mr. Lamken said that's not necessarily so, that the Government would pay.

Mr. Pasternak: Not necessarily so, but it is usually the case that happens.

So too, you have a situation where CSC has acknowledged that it normally does indemnify its employees.

And in our situation, there's a contract that exists between the Bureau of Prisons, which is a Federal agency here, and the private for-profit corporation, CSC, which required CSC to indemnify the Bureau of Prisons.

In addition, it required CSC to have insurance.

So, before any danger could take place to the public fisc, the first thing that would happen, as far as a judgment which would be rendered, is that it would be coming from the insurance company.

The insurance company would then have to make a determination, is this something that would justify an increase in premiums or can it be more properly addressed solely by the implementation of special programs and trainings and seminars to the individual employees?

If it were to increase its premiums, then the corporation would have to make a determination whether or not to pay it or to seek other insurance to get a better rate.

Only if that rate is increased, then the corporation would then have to turn around and say, well, is this a cost that we should be absorbing or to try and pass it along to the Federal Government?

Mr. Phillips: All insurance companies are going to increase rates if the corporation... if they know that the corporations are going to be liable.

Mr. Pasternak: Well, right now, respectfully--

Mr. Phillips: I mean, you know, they're... they're not dumb and they're competitive.

If corporations are not liable, the rates are going to be lower.

If corporations are liable, the rates of all the insurance companies are going to be higher.

That's going to be passed on to the United States Government.

I mean, you know, that has to be... that has to be the outcome.

Mr. Pasternak: --But no one is... respectfully, no one is arguing that there could not be a theory for CSC to be liable under common law, respondeat superior, or under the ADA or any other theory for the corporation to be liable.

It's only a question under what theory the corporation would become liable.

So, that the damages, or the claims against the private corporation, would still exist.

They would still have to be defending the claims.

They would still ultimately, we would submit, be found liable for it.

Mr. Phillips: You can't have it both ways.

You're now telling me that you don't really need these cause of action... causes of action because there... there are other ways to get relief out there, which the insurance companies are already taking into account.

I mean, there's either a substantial difference in what you're urging this Court to adopt or not.

If there's a substantial difference, it's going to come out of the Government's pocket.

If there isn't a substantial difference, why should... why do we have to create a cause of action that does not appear in the Constitution or in a statute?

Mr. Pasternak: If I may, I don't think that it necessarily comes out of the Government, because, A, you have the insurance, and B, if the rates get increased to the company, then the company then has to turn around and bid it out to the Federal Government, and the Federal Government can turn around and go through a different contractor.

So, you have a different situation as far as the ability to pass it along, as opposed to the Federal Government where it comes in and indemnifies the employees--

Mr. Phillips: This other contractor that it would pass it on to would not be subject to the same law that... that we hold today?

Mr. Pasternak: --He would be subject to the same law.

Mr. Phillips: And therefore, his rates would be higher too, wouldn't it?

Mr. Pasternak: Well, we would also... anytime an insurance company is setting rates, they're going to be looking to the past history of the individual applicant to ascertain what the potential is and what programs are in place in order to try and control what those potential dangers are.

Mr. Phillips: Mr. Pasternak, compare for a moment, if you will, the elements of damages you would be seeking under the kind of claim you have in mind and the elements of damages you might be seeking under a State... State law negligence action as... as to amounts, amounts of money.

Are there elements that you could recover for under the Federal claim that you couldn't recover for under a State negligence claim?

Mr. Pasternak: As far as amounts, it's difficult to quantify as to what it is.

As far as the Federal claim, we would have the claim of violation of the Federal Constitution.

Mr. Phillips: Yes, but what you want as a result of the claimed violation is money damages, I take it.

Mr. Pasternak: That is correct.

Mr. Phillips: And I'm... I'm asking you would the money damages be any different under... under a theory of negligence as opposed to the theory you're proposing.

Could some element of damages be permitted under one and not under the other, or would they be the same?

Mr. Pasternak: I think it would depend on how a jury viewed the elements--

Mr. Phillips: Well, but I... I mean... I realize one jury can give you one result and one another.

But let's suppose it's the same jury.

Or just... just... I mean, the testimony as... as to physical suffering and that sort of thing, it would be pretty much the same, wouldn't it?

Mr. Pasternak: --That would be.

Mr. Phillips: Except you might have punitive damages under State law, mightn't you, if... if indeed it was... it was gross negligence or indeed virtually... an intentional harming of... of the prisoner?

Under many State laws, you'd be able to get punitive damages, wouldn't you?

Mr. Pasternak: There would be a potential under certain situations under State law to obtain punitive damages.

Mr. Phillips: And you can't... as far as I know, we haven't held that punitive damages are available under Bivens, have we?

Mr. Pasternak: That's correct.

Mr. Phillips: A State cause of action... could... could a State just incorporate the Eighth Amendment standard as a matter of State tort law?

Mr. Pasternak: I'm sorry.

I didn't--

Mr. Phillips: Could the State, as part of a State cause of action, simply incorporate the Eighth Amendment as part of a State tort standard?

There could be no reckless indifference or you're... you're liable under State law.

Mr. Pasternak: --It could.

The States would have the power to do whatever it pleased.

Each State would have its own decision making.

Mr. Phillips: So, then you don't need the Bivens cause of action even for the Eighth Amendment because States are free to enact it if they choose.

Mr. Pasternak: But that would leave to each individual State to ascertain and decide whether or not there should be a remedy that exists as far as a Federal constitutional violation, which is a separate and distinct harm that needs to be addressed.

Mr. Phillips: Is the same thing true about other Bivens actions?

Mr. Pasternak: This Court... yes, it is.

And this Court has routinely held that just the fact that there is a common law claim that might exist is not sufficient in order to find that there should not also be Bivens liability.

Mr. Phillips: Well, you have no authority to say that a State can create a cause of action against a Federal officer.

Mr. Pasternak: Not as to a Federal officer, correct.

In here, though, where we have a private corporation, who is operating pursuant to its contract with the Government, where it has a separate motive, a fiduciary duty in order to maximize its profits, and there the danger to the Federal fisc is less, we submit, or certainly no greater than if there were an additional Bivens situation, we would submit that the greatest deterrence that could exist is to go and permit the suit against the corporation and not impose the duty in order to try and ascertain which employee would it be, whether or not it's a former employee who set a policy who's no longer there, but to permit it because it is the corporation who has control of its individual employees based on the relationship, whether it be for a limited contract and what contract terms are or whether it be an at-will employee, and also based on respondeat superior, that we need to recognize that we are dealing with a private corporation.

We are not dealing with the FDIC or the Government or a Government agency.

In light of the fact that there's a direct relationship of contract that exists between the Government and the corporation, which is allowing it to act, that this Court should find that there is Bivens liability and the case should be permitted to proceed on that basis.

Thank you.

Mr. Phillips: Thank you, Mr. Pasternak.

Mr. Phillips, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF CARTER G. PHILLIPS ON BEHALF OF THE PETITIONER

Mr. Phillips: Thank you, Mr. Chief Justice.

I'd like to address what I think are sort of two pivotal points here.

One, derive... I derive from Justice Kennedy's question asking Mr. Pasternak about the effect of the Richardson decision because it seems to me the Court, obviously, should be concerned about what its prior precedents tell us about the appropriate way to proceed.

He concedes, too, that Richardson, a case on which he relied very heavily in his brief, frankly does not provide him with much comfort.

I would have asked him, in... in turn, the extent to which he derives comfort from the FDIC v. Meyer decision in which this Court, it seems to me, essentially addressed the same issue we have here and told litigants going forward look to the private employee, look to the employees as the primary source to obtain remedies and to obtain maximum deterrence.

And once you satisfy that, then you're done with the inquiry because the Court specifically addressed in Meyer the... the question of do you... do you extend Bivens to a new category of defendants.

And that takes me to the second point I think is worth keeping in mind, and that was the question that Justice Scalia asked, which is why don't we simply leave this to Congress to resolve at the end of the day.

And it seems to me a... an intricate debate about questions of indemnification, where we don't know what the final answer is about who has what rights of indemnification, questions of respondeat superior where we don't even know specifics about what... what causes of action may or may not be available, questions of the availability of punitive damages, all of these questions are left on the table completely unknown at this point.

It seems to me, in the context of that kind of a circumstance, the Court was correct in Meyer in saying that we should leave these questions to Congress, and if Congress acts, then you can seek out the kind of parallelism between 1983 and a Federal cause of action, or if you don't, presumably Congress will have explained to you why there are disparities between the various approaches.

It seems to me that the best solution for this Court is to recognize that a hands-off approach is the final answer.

Mr. Phillips: Mr. Phillips, can I ask one quick question?

Do you concede, for purpose of... of review of the case and based on your question presented, that the complaint states a cause of action?

Mr. Phillips: For purposes of where the case is right at the moment, yes.

Mr. Phillips: Yes.

Mr. Phillips: I think on remand, obviously we would fight... if... if the case were to go forward, we would continue to fight that issue.

Mr. Phillips: Mr. Phillips, is it,... is it correct... and some of the questions, including my own, have assumed that you can't sue a Federal offer in State... you can't sue a Federal officer for a tort committed in the course of his official duties.

I'm not sure that's right.

You can't sue him in State... or you can sue him in State court, but it is removable to Federal court.

Mr. Phillips: It's immediately removable.

Mr. Phillips: But there's... there's no Federal prohibition against the suit, is there?

Mr. Phillips: Well, there will be a preemption issue that's going to immediately arise as to whether or not he's immune... whether he's immune.

And... you know, if it's within the scope of his responsibilities, then he'll have... he'll have an immunity--

Mr. Phillips: Qualified immunity, but... but you--

4 if it's not, you... you can sue him and... and the only prohibition is, if he wants, he can remove it to Federal court.

Mr. Phillips: --That's correct.

Mr. Phillips: Okay.

Mr. Phillips: Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Phillips.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Morrison - Oral Argument

Fri, 09 Jan 2009 14:50:15 +0000

Case:

United States v. Morrison

Media File:

99-5_20000111-argument.mp3

Related Transcript:

1999_99_5_argument.xml

Transcript:

Argument of Julie Goldscheid

Chief Justice Rehnquist: We'll hear argument now in No. 99-5, United States against Antonio J. Morrison and Christy Brzonkala v. Antonio Morrison.

Ms. Goldscheid.

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

Congress enacted the civil rights remedy of the Violence Against Women Act to remove one of the most persistent barriers to women's full equality and free participation in the economy discriminatory gender-based violence.

A bipartisan Congress concluded that gender-based violence substantially affects the national economy based on a 4-year legislative record through which it found that gender-based violence and the fear of that discriminatory violence deters women's travel interstate, restricts women's choice of jobs and ability to perform those jobs, reduces national productivity, and increases medical and other costs.

Each of these findings was fully supported by evidence.

For example, Congress heard from women whose batterers kept their partners from working, who wouldn't let them leave home if they did work, or who inflicted visible injuries so that they were afraid to go to work or were physically unable to show up.

Justice Scalia: Ms. Goldscheid, were all of these instances instances of gender-based violence?

Mr. Goldscheid: Not...

Justice Scalia: As I understand it, this law doesn't apply to any... to any rape or any... any violence against women.

It is only when the woman is... is selected because of her sex.

Mr. Goldscheid: That is absolutely correct.

The statute limits each individual case to claims in which a woman could...

Justice Scalia: Now, all of these... all of these instances that you're referring to that have such an effect on interstate commerce, are they all instances in which you have somebody who just hates women and is doing it for that reason?

Mr. Goldscheid: Perhaps not each and every instance, but Congress...

Justice Scalia: Most of them?

Mr. Goldscheid: Congress looked at the record as a whole and explicitly made a finding.

In the 1994 conference report, Congress specifically found that crimes of violence motivated by gender have a substantial adverse effect on interstate commerce.

Justice Scalia: Well, that's nice, but... but the instances on which that finding was based that you're now alluding to don't... aren't limited to... to gender-based violence.

Mr. Goldscheid: The finding that Congress made was rational.

Justice Scalia: I know.

I'm not talking about the finding.

I'm talking about the evidence that supports the finding.

Mr. Goldscheid: The evidence that supports the finding was in the record.

Congress also specifically found that some acts of discriminatory violence could, in fact, be discriminatory.

Justice Scalia: Well, let me... let me ask a...

Mr. Goldscheid: They cited the case of Meritor.

Justice Scalia: a similar question.

It... it follows from my last one.

If indeed non-gender-based violence against women or, for that matter, against men also has a substantial effect on interstate commerce, I suppose Congress could enact a general criminal statute against... against violence, a Federal... a Federal rape law, a Federal robbery law.

Right?

A Federal murder law?

Mr. Goldscheid: This case is entirely distinct from the hypothetical that you propose because by...

Justice Scalia: Oh, I'm aware of that.

I'm... but that's why I posed the hypothetical.

Mr. Goldscheid: By requiring discriminatory... a showing of discriminatory motivation in each instance, the Congress specifically removed these cases from the kind of constitutional shoals that the Court in Griffin v. Breckenridge was worried about.

Justice Scalia: But the justification for the statute that you're now giving us is a justification that would allow general Federal criminal laws on all subjects because all crime affects interstate commerce.

Mr. Goldscheid: As we...

Justice Scalia: Is that not... is that not so?

Mr. Goldscheid: It's entirely possible that all crime might affect interstate commerce, but that does not lead necessarily to the conclusion that...

Justice Scalia: Well...

Mr. Goldscheid: a general tort law of the type you suggest would be constitutional.

As we set forth in our briefs, there are other factors...

Justice Scalia: I don't see why.

I don't see why.

If all that is necessary that there be some effect, even though these are not economic matters we're talking about, but that there be some effect on interstate commerce, you have a Federal Government that can legislate in the entire realm of criminal law, which is certainly not what the Founders thought they were creating.

It's very clear that they didn't think the Federal Government had general police powers.

Mr. Goldscheid: And we are not suggesting that Congress would have that authority.

Justice Scalia: Oh, I think you are suggesting that.

That's the point of my question.

Tell me why you are not suggesting it.

Is it because you think that violence in general does not substantially affect interstate commerce, although this little narrow category of violence, namely not just violence against women but violence motivated by hatred of women, that little area, substantially affects commerce.

My goodness, certainly murder, rape, robbery affect interstate commerce much more than that.

Mr. Goldscheid: Two responses to your question, Your Honor.

The first is that this Court long has held that especially when... when Congress is looking at a general social problem of the type with which it was concerned here, Congress can regulate one step at a time, and that's what it did.

So, by regulating a subset of the general activity that it was looking at, it's consistent with this Court's holdings.

In addition...

Justice Scalia: That... that would be a good response to an objection that Congress was being discriminatory in selecting only this area of... of crime and not the entire area of crime.

But that wasn't my question.

My question is, if they can do this, surely a fortiori they could enact a general Federal robbery law.

Mr. Goldscheid: And that point goes to the second part of my response to your earlier question.

Justice Scalia: Good.

It should have been your first.

Mr. Goldscheid: I'm sorry.

Which is that, as we set forth in our brief, there are other considerations to assessing whether or not a law that regulates intrastate non-commercial activity is constitutional.

And the heart of that inquiry is whether or not the law intrudes on an area of traditional State concern.

And we simply don't have that here.

This law...

Justice Scalia: Where do you get that principle from?

You see, I had thought that we had a Supremacy Clause in the Federal Constitution so that if Congress does have power under the Commerce Clause to pass a law, it automatically has power to sweep away all State laws that... that interfere with it.

Mr. Goldscheid: Congress certainly does have the authority to... to preempt State law in areas in which it has power.

Justice Scalia: So then what difference does it make that this exercise of Commerce Clause power happens not to preempt State law?

It seems to me it makes no difference at all.

If... if it is a valid exercise of Commerce Clause power, they can preempt State law.

Mr. Goldscheid: The inquiry derives from this Court's concern in the Lopez decision about obliterating the distinction between what is truly national and what is truly local.

And the standards that we have set forth in our brief identifying issues such as what was presented to Congress here, the fact that the problem with which Congress was concerned is discrimination, which is uniquely and traditionally an area of Federal concern, the fact that in this case the States have come forward and have said that they need Federal help in resolving the problem... Attorneys General from 38 States testified to Congress that the Violence Against Women in general, and the civil rights remedy in particular, was a law that would help them resolve this problem that they found to be very serious and entrenched and perplexing.

And, of course, you know that nearly three-quarters of the States' Attorneys General filed briefs with this Court in support of this law here.

And the law itself works no usurpation of any area of traditional State concern.

It leaves the traditional areas of divorce, child custody, equitable distribution expressly and entirely undisturbed.

Justice O'Connor: Well, presumably Congress could also, under your theory at least, legislate in those areas too.

If... if there's bias against women and they're not receiving adequate alimony or it's not enforceable in court in the States, then it would also have an effect on commerce.

Would it not?

Mr. Goldscheid: It might have an effect on commerce, although that scenario... if you're suggesting a scenario that... where the Federal Government would propose to overtake, say, wholeheartedly a divorce law, that would be stepping into the shoes...

Justice Ginsburg: Make it just an alternate forum as here.

You can bring your property distribution claim in State court or Federal court.

On your theory Congress, I suppose, could do that.

Mr. Goldscheid: It might well be a harder question because you are talking about an area that is more traditionally within State concern as compared to discrimination which is historically within the realm of the Federal Government.

What the law here regulates... it builds on this Court's... this country's history of anti-discrimination laws through which Congress has provided means of redress for individuals...

Justice Ginsburg: But the... but the case of marital distribution would also be based on discrimination, that is, a documented legislative history that shows that women are getting the short end of the stick in marital property distribution.

Mr. Goldscheid: And if there were such a legislative record, that would certainly be a closer case to what we have here than an over-arching, overall regulation of divorce law.

Justice Souter: All right.

Well, what if... what if Congress did pass a general murder statute?

Is it your position that... that it would be unconstitutional because it did trench upon a traditional sphere of... of State criminal regulation?

Mr. Goldscheid: It would be very different from our scenario here.

And I... I think the answer would be...

Justice Souter: Well, different enough to be unconstitutional?

Mr. Goldscheid: I... I think the answer would be yes.

First of all...

Justice Souter: And is the criterion tradition?

Mr. Goldscheid: It would be several things.

First of all, it would... it would well run afoul of this Court's decision in Griffin v. Breckenridge which said that absent a showing of discriminatory animus or discriminatory motivation in each instance, a Federal tort law would roll... could run into constitutional shoals.

Second of all, in a Federal murderer tort law...

Chief Justice Rehnquist: Thank you, Ms. Goldscheid.

Mr. Goldscheid: Thank you.

Argument of Seth P. Waxman

Chief Justice Rehnquist: General Waxman, we'll hear from you.

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

The innovation of this Court's decision in United States v. Lopez was to reiterate that under the Commerce Clause there are judicially enforceable limits on Congress' authority and to explicate what those limits are.

And we think that the statute at issue in this case satisfies those limits in the following respects.

Chief Justice Rehnquist: General Waxman, is the Government supporting this... the constitutionality of this legislation both on Commerce Clause grounds and on section 5 of the Fourteenth Amendment?

Mr. Waxman: Indeed, we are, Mr. Chief Justice, and I'm prepared to make the Government's argument with respect to both.

I thought I would start on the commerce just to fill in some of the many questions that were answered.

Justice Kennedy: Let me just comment.

Your colleague had a very brief time to answer our questions.

And it... it seemed to me that when she was being pressed upon whether or not a murder statute could be enacted, she would immediately talk about discriminatory animus going to the... to the Fourteenth Amendment question.

Just confining yourself to the Commerce Clause...

Mr. Waxman: Okay.

Justice Kennedy: aspect of the case, can you address the questions the Court was asking about murder statutes and why this should be different?

Mr. Waxman: Yes.

Justice Kennedy: Just with reference to commerce.

Mr. Waxman: Yes, I will do it just with respect... with reference to commerce.

When Congress... as this Court explained... in explaining... the explanation for why it's different requires a somewhat long answer, but I have... I do have the question firmly in mind.

[Laughter]

Believe it or not, I had the question firmly in mind weeks before I came up here.

[Laughter]

My answer with respect to... let me just get to the chase and then give you the explanation.

A murder statute would be far more difficult to defend under Lopez, but without knowing what Congress found and what the factual premises were for such a statute and whether it was preemptive or... or complementary I'm not able to say, as an a priori matter, constitutional or unconstitutional.

But our defense of this statute doesn't rely on a conclusion that that would be constitutional for the following reasons.

In Lopez, this Court explicated what we take to be a four-part test in judicial scrutiny of legislation that Congress passes under the substantial effects prong of the Commerce Clause, but which is not itself either economic or commercial or part of a legislative effort to regulate or protect the specific market.

And Lopez was the first such case that this Court considered, and this one is quite arguably the second.

And what the Court said in Lopez, as we understand it in both the majority opinion, joined by five Justices, and in the concurring opinion that you... that you authored, was that Congress must... the Court must independently find four things: first, that Congress did act to protect interstate commerce

In Lopez, it was not at all clear that that was true.

The act didn't even regulate violence.

It regulated possession and only within a school.

It looked much more like an effort to regulate what schools should be doing.

Secondly, the Court...

Justice Scalia: Whereas this one is squarely directed at commerce.

Mr. Waxman: This one is squarely directed at violent conduct as... okay.

I'm coming to the next part of the test.

[Laughter]

The Court has to find also independently... and... and this was first I think explicated in Wirtz v. Maryland.

The Court must find that Congress had a rational basis to conclude that the regulated activity substantially affected commerce.

Third, the Court itself must find independently... and this I think is an innovation of Lopez... that the harm on Congress was direct and not attenuated when the activity being regulated is not itself economic.

And fourth... and this is, I think, what gets most to the question about the... the murder hypothetical.

Fourth, the Court has to find that upholding the regulation at issue does not require the Court to embrace a rule that would create what the Court said in... in Jones & Laughlin, a completely centralized Government by obliterating the distinction between national concerns and those that are truly local.

Now, the difficulty in... in other words, when Congress is... is acting with its Commerce Clause authority in this unique area where the underlying activity is not itself economic, the Court undertakes an evaluation that is not characteristic of the type of evaluation that it takes in the ordinary Commerce Clause situation where Congress is seeking to regulate a channel or an instrumentality or an activity that's inherently economic in itself, and it looks to the Federal versus the local side of the balance.

And here, unlike the...

Justice O'Connor: Well, the Court has been helped many times by finding some kind of jurisdictional hook that the conduct that took place was carried out in... in interstate commerce.

There is no such hook here.

Mr. Waxman: There is no such hook here and quite deliberately on Congress' part.

And let me answer that question and then explain the essential distinction with the murder statute.

Here Congress could have put a jurisdictional requirement that the act of gender-motivated violence affect commerce or substantially affect commerce.

And under Lopez, there would be no question of Congress' constitutional authority to do that.

But we submit that it is both not constitutionally necessary under Wirtz and the... Perez and the other cases that suggest that under the substantial effects test, it is appropriate for Congress to regulate where the class of activities substantially affects interstate commerce rather than the particular discrete action.

And that's really important here in terms of the effectiveness of this remedy for two reasons.

One... the two reasons that are quite specific to gender-based violence.

One, there are many instances of gender-based violence that don't take place in the work place or on the way to work that in fact, in and of themselves and in the fear that they instill in women, have a substantial effect on the interstate economy.

And some of them were mentioned by my colleague.

If I can go... and therefore, we think that a jurisdictional element in this case as, for example, didn't exist in Perez or in Wirtz or, for that matter, really even in Heart of Atlanta Motel, because Congress in that case simply decreed that any commercial establishment that accepted a transient guest sufficiently affected commerce... so, we don't think it's necessary, and we don't think it would be as effective.

Justice O'Connor: Well, of course, in Heart of Atlanta, you... you did have commercial businesses, the running of motels and restaurants and so forth...

Mr. Waxman: Very, very...

Justice O'Connor: as I understand it.

Mr. Waxman: very true, and we don't step back from that at all.

It was important for this Court in Heart of Atlanta Motel and in Katzenbach v. McClung to ensure itself that there was a substantial effect on commerce.

My only point...

Justice O'Connor: But your... your approach seems to me would justify a... a Federal remedy for alimony or child support or other things of that... or contract disputes because we now have a record that there's bias in State courts against women.

So, any woman entering into a contract perhaps Congress could say should have remedies in Federal court, and under your theory that would be fine.

Mr. Waxman: No.

I... I don't think under...

Justice O'Connor: No?

Mr. Waxman: my theory it would be fine.

The fact that... and I think it... it would run into problems under at least three of the factors that I've identified with respect to Lopez.

The fact that there... Congress has, of course, made no such findings.

But with respect to...

Justice O'Connor: It has made findings about bias against women in State courts.

Mr. Waxman: Indeed.

And it has found with respect to gender-based... the criminal prosecution of gender-based violence that the bias, the archaic prejudices and improper stereotypes affect the outcomes of those prosecutions or potential prosecutions in a significant number of cases.

If there were to be...

Justice Scalia: To remedy which in part it gave the States $1.9 billion to... to spend...

Mr. Waxman: Indeed, as... as part of the package that includes...

Justice Scalia: These States that are... that are just bad actors.

Mr. Waxman: Yes, as part of this... well, Justice Scalia, I... if I can just respond to your last comment.

I don't think that it is a fair reading of this statute or the findings that support it or the legislative record to suggest that Congress was on a tear to deal with the States as bad actors.

The findings apply equally to the treatment that victims of gender bias... gender-based violence get in Federal courts as well, and it's not our submission that States themselves are... have a policy of discriminating against or depriving women.

Justice Scalia: I thought that's what you had just said, that...

Mr. Waxman: No, no.

Justice Scalia: State courts...

Mr. Waxman: There... Congress found, largely by reference to the submissions by 21 State task forces and testimony of State Attorneys General and prosecutors and police, that archaic prejudices and improper stereotypes by people in the criminal justice system in a significant number of cases were affecting outcomes.

And I don't think that that could fairly be said with respect to domestic relations matters, but even if it could, Justice O'Connor, there are other significant differences here.

If this were a statute that were targeted at the core of a... of an area in which the States by history and tradition lay claim, it would raise, in this unique area of Commerce Clause regulation outside of an economic activity, a very substantial concern on the State side of the federalism balance.

Chief Justice Rehnquist: If we're... if we're talking about archaic stereotypes and so forth, are the plaintiffs going to be any better with juries in Federal court?

I mean, they come from the same pool that State court juries come from.

Mr. Waxman: Mr. Chief Justice, they... they may or may not be, and Congress didn't base its establishment of the remedy on a conclusion that they would be.

The... the establishment of the remedy... the reason that the remedy were thought by... was thought by Congress to be sufficiently efficacious... no one thinks it's going to eliminate the problem of gender... gender-motivated violence.

The reason it was thought to be sufficiently efficacious to try as part of a multi-year, multi-statute scheme is, number one, it gives the plaintiffs... it gives a category of people that Congress found may not have always had a fair chance at vindication... an alternative forum.

It gives them a civil forum.

It gives them the option of pursuing that in a Federal court under different rules with different burdens and with certain advantages and disadvantages.

And it was... this does, I think, get in... somewhat into our Fourteenth Amendment argument, but it was thought to provide a remedy with respect to both the Commerce Clause problem that commerce sought... Congress sought to address and the Fourteenth Amendment problem by providing this category of people a means to... an alternative means to obtain vindication and redress...

Justice Ginsburg: General Waxman...

Mr. Waxman: in a choice of forums.

Justice Ginsburg: from what you say, I take it that there would not need to be a jurisdictional peg for the criminal provisions of this act.

There is in fact, but am I correct in understanding you to say that that was not necessary?

Proper perhaps but not necessary.

Mr. Waxman: I... I'm not... I'm not saying that and I'm not sure that the criminal provisions of the act would satisfy this Court's standard... unlike the civil provisions would satisfy this Court's standard in Lopez without a jurisdictional provision, and here's why.

The criminal provisions of the statute are not analogs of the civil remedy provision.

The criminal provisions of the statute, which were included in a separate title and considered separate... entirely separately, address themselves to the crossing of State lines for the purpose of engaging in domestic violence or violating State protective orders.

The crossing of State lines is not just the traditional jurisdictional element whereby Congress gets to grab authority.

It's the element... it's... it's the actus reus, if you will.

And if Congress were to essentially impose a remedy... without the... without the jurisdictional element in those statutes, Congress would be doing what I think was suggested it might be doing if it directed... by Mr. Chief Justice... if it directed itself at simply saying, well, they're biased in domestic... in divorce cases, let's federalize it.

That, unlike this, would be an act in which Congress, acting in this special Commerce Clause area, would be directed directly... would be aimed directly at what the States traditionally do, and that would change the balance that I think this Court has... certainly the concurring opinion in Lopez suggests has to occur when Congress is operating at the limits of its Commerce Clause authority.

Justice Scalia: General Waxman, can you give us a single opinion in which this Court has suggested that some activities under the Commerce Clause are valid on the part of the Federal Government where they do not displace State action, but would be invalid if they do displace State action?

I'm alluding to your... your dichotomy between, I think you said, preemptive versus complementary Federal laws.

This is a new view of the Commerce Clause to me.

I had thought if the Federal Government has Commerce Clause power, it has Commerce Clause power.

Now, you're saying that it has it in some areas but only if it doesn't displace the State... State action.

Is that... is that the theory?

Mr. Waxman: Justice Scalia, I was with you entirely until the Court decided Lopez, and I think what the... and I think the reason I was with you is that the Court had never considered the... as it... as it explained, the exercise of Commerce Clause authority in an area in which it wasn't channels or... or instrumentalities of commerce, and under the substantial effects, it wasn't even activity that's economic itself or activity that protects or regulates a market.

And what we understand this Court to have announced in Lopez is that when Congress does that, there has to be a... an assurance that upholding the... the regulation does not require the Court to embrace a completely centralized government.

Justice Scalia: Where does it say that in Lopez?

I had thought what Lopez said is if the congressional action in this area is intruding into an area that is the States' exclusive concern under the Constitution, it can't do it.

I didn't see that the opinion said, well, Congress can sort of slice the bologna and say, we're going to intrude but not too much.

Where does it say that?

Mr. Waxman: Well, I... perhaps I don't have the... the opinion with me right here.

Perhaps on rebuttal...

Justice Scalia: Well, if it's the only opinion you're relying on, I... I would really, you know, like to know what language suggests that.

I...

Mr. Waxman: There is language both in the...

Justice Scalia: must have signed on to it unconsciously.

Mr. Waxman: There is language both in the majority opinion and particularly in... in the concurring opinion.

I read it from the majority opinion by the... the Court's analysis saying this... Congress is regulating under the substantial effects test and this is not activity that's economic or part of a regulation of a market.

It doesn't have a jurisdictional element, and... and then the Court goes on at great and persuasive length... if we were to accept the Government's two arguments in this case, it would obliterate the distinction.

The concurrence adds that in the instance in which Congress seeks to regulate with respect to that type of activity, it is appropriate, it is required to inquire the extent to which the Federal balance is changed.

And our submission here today is not only that this act falls on the appropriate side of the line, but that the creation of a bright line test, which is quite inconsistent with this Court's historical Commerce Clause experience that simply says if you're operating in the substantial effects area and it's not economic or identifiable to a particular market, it's invalid would be a very unwise rule for a number of reasons.

There are lots of non-economic activities that themselves have nothing to do with commerce or... or the economy that help regulate a market.

Drug and firearms possession laws, for example.

There are economic activities that threaten markets.

I'm thinking of the Federal Access to Clinic Entrances Act and, you know, acts that prohibit, you know, blocking the entrance to an exchange of some sort.

And there are other acts that deal with... directly with activities that themselves aren't economic but that themselves have substantial effects on commerce.

Justice Kennedy: If you defend the scheme as being an analog and the same and therefore not a displacement, then that seems to me to cut against your Fifth Amendment... Fourteenth Amendment argument because you're not adding any additional remedy.

It seems... it seems to me you're caught on the horns of a dilemma there.

Mr. Waxman: Well, let me... let me shift ground briefly to the Fourteenth Amendment.

Our submission with respect to the... I take it your question goes to why this is an efficacious remedy at all with respect to the Fourteenth Amendment violation that we've identified.

Is...

Justice Scalia: Yes, because you've defended it as saying it's just the same under theCommerce Clause.

Mr. Waxman: Well, no, no, no.

I...

Justice Scalia: And now you get to the Fifth Amendment, you're going to say, well, it's different.

Mr. Waxman: If I... if I said that it was just... just the same... just the same as what these plaintiffs already have available to them in State Courts, I... I mistook.

The... the Federal remedy that Congress has enacted provides them something that they didn't have before.

Now, it can be argued that they already... they already had the right to have their crimes prosecuted and in all States they already had the right to pursue a tort remedy.

But this is different.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

Mr. Waxman: Thank you.

Argument of Michael E. Rosman

Chief Justice Rehnquist: Mr. Rosman, we'll hear from you.

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

The question in this case is whether the enumeration of congressional powers in the Constitution provides principled, substantive limits to those powers.

For each of the two powers that are at issue today, petitioners ask this Court to go beyond its previous holdings and to enlarge those already substantial powers even further.

With respect to the Commerce Clause, this Court has not yet held that Congress can regulate any violent crime non-economic in scope and without any jurisdictional element tying it to interstate commerce in the specific instance.

With respect to section 5, this Court has not yet held that Congress can remedy violations of the section 1 prohibition against State denials of equal protection by regulating purely private behavior that could not possibly violate section 1.

Under these theories, Congress could justify laws... virtually any laws... in domestic relations law, crime, tort, areas that are traditionally governed by State law.

And as Justice Scalia noted earlier, because the power to regulate is the power to preempt, Congress could occupy the fields in these areas and relegate the States to a trivial and unimportant role in our Federal structure.

With respect to the Commerce Clause...

Justice Kennedy: The Government argues, Mr. Rosman, that... that we're in a new regime after Lopez and that what we should do for non-economic matters is not to say that absolutely the Commerce Clause power exists or doesn't exist, but rather it may exist so long as the Government doesn't go too far in displacing State activity.

What... what's wrong with that regime?

Mr. Rosman: Because it's been... as you noted earlier and... and as I just mentioned, it's been the traditional jurisprudence of this Court that the power to regulate is the power to preempt.

That is to say, if Congress has the power to regulate, it can displace State law to the extent it chooses.

Justice Stevens: But what if the Federal statute expressly says, this will not preempt State laws whatsoever?

Mr. Rosman: This statute, Your Honor?

Justice Stevens: What if... what if a Federal statute had that provision in it?

Mr. Rosman: Well, the Gun-Free School Zones Act had that provision and it was still unconstitutional.

So, I would not think that would be of significance.

What the Court focused on...

Justice Stevens: Well, if that's not significance, then the question of whether there's preemption or not is not significant either.

Mr. Rosman: That... that's correct.

Justice Souter: Oh, okay.

Mr. Rosman: It's not significant.

That would be our position.

Justice Breyer: Well, then this... this Court has had a... what I think is an unfortunate 150 or 200-year history of trying to draw some kind of line, as you are, between local and interstate effects.

Most of those have failed.

What's your line?

Mr. Rosman: Well, we think that Lopez best drew the line between economic conduct... that is to say, conduct which is connected to or arises out of a commercial transaction... and other conduct.

Justice Breyer: So, then your view is that if it turns out that, to use one of the Government's examples, people are in their own houses cooking up biological warfare or it turns out that in their own fireplaces, they pollute the air in a way that will, through global warming, swamp the east coast... or, you know, use any of their other imaginative examples... Congress is powerless to act?

Mr. Rosman: Well, with respect to the first example, Justice Breyer, I think Congress' power to suppress insurrections would...

Justice Breyer: Well, you see my point.

My point is that there are many, many, many instances of non-commercial activity, when you collect them all together, that could have overwhelming effects on interstate commerce.

And so I want to know if you think in any of those myriads of examples... I won't be too far-fetched... the Congress is powerless to act simply because the cause of the major economic impact is itself not economic.

Mr. Rosman: Yes, Justice Breyer.

We think that is the best reading of Lopez.

Justice Breyer: Then the drug laws are also unconstitutional?

Mr. Rosman: The vast majority of Federal drug laws regulate the sale, manufacture, and possession with intent to sell of drugs.

Justice Kennedy: Yes, but what about...

Justice Breyer: Any of the Federal Government's is forbidden from regulating Federal drug laws for your own use in your own house.

Mr. Rosman: Unless... well, I do know, Your Honor, that 21 U.S.C. 801 has made various findings that tried to connect the possession of drugs to the interstate sale of drugs.

Whether that would distinguish Lopez or not, I don't know.

I think it would not.

Justice Breyer: So, if I reject your idea that Congress is powerless to act where the amazingly strong commercial activity... I see.

Sorry.

Where the... where the non-commercial activity has an overwhelming effect on interstate commerce, if I say I believe there Congress is power... empowered to act, at least in some cases, would you lose?

Mr. Rosman: No, I don't think so.

I think if you would... if you read Lopez as permitting the regulation of some non-economic conduct, I think it would have to be non-economic...

Justice Scalia: And you don't read it that way?

I'm not sure what your reading is.

Mr. Rosman: No, I do.

I do read it that way.

I... I read... I read Lopez as precluding the regulation of non-economic conduct.

I was responding to Justice Breyer's question which I thought the presumption of which was that Congress could regulate non-economic conduct.

And I was responding by noting that you could read Lopez, I suppose, to permit the regulation of non-economic conduct, but it would have to be in a way that differs from... the effect would differ from the effect that virtually important problem has on...

Justice Breyer: All right.

Then suppose if you're going to... if you're going to take a less extreme position, as I think you are, in this answer, what about a test that said, where a traditional activity of a State is at issue, what we will do is require that Congress address the federalism problem and explain why it believes in this traditional area a Federal solution is needed?

Mr. Rosman: That's an interesting solution, Justice Breyer, but I don't think it really relates to the text of the Constitution which permits Congress to regulate commerce among the States.

Justice Ginsburg: Mr. Rosman, on that point, you're not challenging, are you, any of the findings that Congress made that this is, indeed, a problem that affects the national economy because it impedes women's mobility, it impedes the jobs that they can take, the times of day that they work?

You're not challenging any of those findings, are you?

Mr. Rosman: I think we're challenging them, Justice Ginsburg, in the sense that Justice Scalia suggested earlier on today, in the sense that all of the studies that were done to support that finding are much broader and don't really relate to the specific conduct, gender-based, animus-motivated violence, which is the subject of this particular statute.

Justice Souter: What... what about the... the finding that there was a $3 billion effect on... on the gross national product for goods and services, of what I understood to be gender-based violence?

Is... is that... is that too far from the... from the causal connection that would satisfy you?

Mr. Rosman: Well, first, of course, this statute doesn't regulate simply gender based conduct, but gender based and animus-motivated conduct.

Justice Souter: Right.

It regulates a subset of it.

Mr. Rosman: I don't... I don't...

Justice Souter: What about the relevance of the $3 billion figure?

Mr. Rosman: Your Honor, findings could be made about virtually any activity and its effect on interstate commerce: marriage, divorce, virtually all crime

It has...

Justice Souter: But I think what that means is you're going back to the argument that you simply cannot regulate anything but economic activity as such because if you extend regulation beyond that, there is no stopping point.

That's really your...

Mr. Rosman: That's certainly our primary argument today.

That's correct.

Justice Souter: But if... let's assume that your primary argument, that pure position, is not accepted, is... is there something insufficient about the $3 billion finding to support this kind of legislation?

Mr. Rosman: I think what we were speaking about just a moment ago, the fact that the statute doesn't regulate the particular conduct...

Justice Souter: Well, it regulates a... a subset of it, the animus kind of violence.

And... and I would suppose that... I don't know that the Government made this argument, but I would suppose that it could reasonably be argued that from a finding that gender-based violence resulted in a... in a $3 billion effect on... on the economy, loss in gross product, that... that one could also infer that probably the substantial or... or a very substantial part of the... the violence that goes to produce the $3 billion effect was animus-based violence.

At least most... most gender-based violence I presume is animus-based violence.

Mr. Rosman: Well, I think that's the assumption that Congress made, and I'm not sure...

Justice Souter: Isn't that a... isn't that a reasonable assumption?

Mr. Rosman: I'm not sure that it is.

Justice Souter: Why not?

Mr. Rosman: Well, I... I'm not sure that Congress had any basis for believing it.

I think that's the best way of putting it.

Justice Scalia: What makes you think it's the assumption Congress made?

I... I'd assumed just the opposite, that it was very clear in the... in the legislative history that Congress understood it was... it was just addressing a... a narrow... a narrow spectrum of violence against women and wasn't enacting a general rape law.

Mr. Rosman: Correct, Justice Scalia.

What I was...

Justice Scalia: So, why do you think that Congress made the assumption that all... all rape or all violence against women is... is what you call gender-based?

Mr. Rosman: Well, I think that they concluded that it somehow constitutes a significant part of the economic effects of it.

But as you point out, that's contrary to their equally... well, it's contrary to the conclusion or the statements that are made in the legislative record...

Justice Souter: Well, but the...

Mr. Rosman: that this stuff does not constitute...

Justice Souter: No.

Finish your answer.

Mr. Rosman: does not constitute a significant part of gender-based animus...

Justice Stevens: What is your view of the proper standard this Court should employ to determine the accuracy of congressional findings?

Do we review the whole legislative history and decide for ourselves whether the evidence supports the findings, or what do we do?

Mr. Rosman: I think this Court... it's unclear after Lopez precisely the standard by which one reviews...

Justice Stevens: I'm asking what your view of the proper standard is.

Mr. Rosman: Actually, Justice Stevens, we don't think it much matters because the relationship that... between the conduct being regulated and... and the amount of commerce being affected is what defeats this... not...

Justice Stevens: Then do you agree that we should assume the findings are valid, or not?

And if not, why not?

Mr. Rosman: I think, Justice Stevens, that there's reason to question the findings with respect to gender-based, animus-motivated violence, but it does not affect our argument one way or the other if you do assume it.

Justice Stevens: So, in other... you say we should take the case on the assumption that findings are supported by the evidence.

Mr. Rosman: I don't... I don't believe the findings are supported by the evidence, but as I've said, we don't think that's...

Justice Stevens: But then I asked you what standard should we use to determine whether or not there are findings supported by the evidence.

Mr. Rosman: I see what you're saying.

In determining empirical effects, effects on the national economy, this Court can review under a rational basis test.

The question whether or not, though, the activity being regulated substantially affects interstate commerce is somewhat different.

This Court focused on two factors in making that determination in Lopez.

First, the nature of the activity being...

Justice Stevens: Well, Lopez doesn't address this question because there were no findings in Lopez.

And what I'm particularly interested in is your view of, one, what is the standard by which we should review the findings, if they're going to be reviewed, and secondly, does it matter whether we accept the findings or not?

And I'm not really clear on what your answer is to either of those questions.

Mr. Rosman: The answer to the second question is that it doesn't matter, and it doesn't matter...

Justice Stevens: Which means we can accept the findings and decide the case on the assumption they're valid in your view.

Mr. Rosman: Yes.

You can... you can still... you can still accept the findings and nonetheless affirm the judgment of the Fourth Circuit.

Justice Kennedy: Do you know of any case of ours that turned on the existence or non-existence of congressional findings?

Mr. Rosman: I do not, no.

Justice Kennedy: Do... have we said...

Justice Stevens: Have you read the Lopez opinion which makes quite a point of the absence of findings?

Unidentified Justice: [Laughter]

Mr. Rosman: I have, Justice Stevens, and I don't think it does make that much of a point of the absence of findings.

I think that the Fifth Circuit opinion in Lopez made a great deal of the absence of findings, but I think that this Court wrote a much, much different opinion.

This Court focused on the nature of the activity being regulated and the absence of a jurisdictional element.

It was set forth in the very first paragraph of the opinion and repeated throughout.

The possession of guns around schools was a non-economic activity, and that was so even though schools themselves buy things and employ people and, no doubt, have to divert resources when the violence is threatened.

Justice Scalia: Mr. Rosman, I'm concerned about, you know, the line you're... you're urging us to adopt that it has to be an economic activity.

I mean, you know, what about a gang that... the Jesse James gang that... that robs interstate trains?

That's what they do.

Violence directed against the actual organs of commerce.

We... the Federal Government would have no power to control that?

Mr. Rosman: Well, presumably that would fall under Congress' power to regulate the instrumentalities of commerce.

Chief Justice Rehnquist: Well, from Jesse James' point of view, it was economic.

[Laughter]

Mr. Rosman: Yes.

That's... it certainly was.

There are going to be, Justice Scalia...

Justice Scalia: Oh, I see.

So, all robbery is economic activity in your... in your estimation.

We can have a general Federal robbery statute because, after all, it's economic activity.

Mr. Rosman: I'm not sure that's the case because robbery is sort of... if you think of commerce as voluntary exchange, robbery is not commerce.

Justice Scalia: Well, but surely you have to broaden your... your argument to say beyond mere economic activity.

It has to be... you have to allow some ability of the Federal Government to reach activity that is directed against commerce whether it's economic activity in and of itself or not.

Mr. Rosman: Oh, the... the standard in Lopez and what I had understood the definition of economic activity to be was activity that arises out of or is connected to commercial activity.

Justice Souter: So, would you say that if an act of violence were... were committed simply for the... for the purpose of... of slowing the flow of goods in... in interstate activity that in fact that would, therefore, be subject to... to congressional regulation?

Mr. Rosman: I think that would constitute economic activity as the Court defined it in Lopez.

Justice Souter: Or even an act of violence on an interstate train or on an airline traveling interstate.

Mr. Rosman: Yes.

That's... that's correct.

If the purpose of the act is to disturb commercial activity...

Justice Souter: No, I don't care about its purpose.

That isn't its purpose.

The purpose was to get money from the passengers, but... but in fact it occurred in... in the stream of commerce.

Mr. Rosman: Well, I think the purpose is of some consequence, but I would agree with you that the particular examples that you identified would probably constitute economic conduct, as the Court identified it in Lopez.

Justice Souter: But your test, in any case... you've changed... not only you've changed it, but you've... you've modified your statement of your test to this extent.

Originally I thought the test was Congress could regulate only economic activity as such under the substantial effects prong.

But I take it now you're saying it may regulate economic activity as such and it may regulate non-economic activity if that activity was intended to affect economic activity.

Mr. Rosman: Well, that's... it certainly can do that, Justice Souter.

And I had understood... I had understood Lopez, when he characterized or described economic activity, to include activity connected to a commercial transaction, and I think that would fall...

Justice Souter: By... by intent for...

Mr. Rosman: Yes.

Justice Stevens: May I give you one example I'd be interested in your views on?

Assume a person wants to grow marijuana in his back yard for his own use and for no other purpose.

Could... does Congress have the power to prohibit that activity?

Mr. Rosman: I don't think so, Justice Stevens.

Justice Stevens: That's what I thought your view would be.

Mr. Rosman: And... and I would...

Justice Scalia: As opposed to wheat?

I mean, marijuana is different from wheat?

Is that...

[Laughter]

Mr. Rosman: Well, it... it... I was... I was going to provide that caveat, Justice Scalia...

[Laughter]

Justice Souter: Yes, but let's... let's assume...

Mr. Rosman: that... that in...

Justice Souter: let's assume the marijuana grower says I want to grow it in my back yard solely for my own use because I am sick of being gouged by the interstate marijuana market.

[Laughter]

Doesn't... doesn't that pass muster with you?

Mr. Rosman: There's always going to be some close cases.

I think the specific...

[Laughter]

I think the specific example...

Justice Souter: I thought I gave you an easy one.

[Laughter]

Justice Scalia: That's not a close case under our precedents.

It's not a close case at all.

Justice Souter: Well, I think it is a close case.

Justice Breyer: What if wheat... he's growing wheat in his back yard to eat?

Justice Stevens: Let me just pursue this, please, for this one thing.

Regulating a lawful market in wheat is one thing.

Regulating a... commerce in something that's forbidden to be sold is quite a different thing, and that's why I think you're quite right in saying that under your theory you could not... Congress would not have the power to prohibit mere possession of marijuana even though they would have the power to regulate possession and growth of wheat.

Mr. Rosman: I think there is that difference, Justice Stevens.

Thank you.

And what I was trying to say is that...

Justice Scalia: I see.

You... you read the Commerce Clause that Congress has the power to regulate lawful commerce.

Right?

Unlawful commerce, the sky is the limit.

[Laughter]

Congress has no power to regulate that.

Is that it?

Mr. Rosman: If... no, it has the power to regulate unlawful commerce.

The question is the... is the possession... the regulation of possession so necessary to the prohibition of marijuana in interstate commerce that Congress should be able to reach it, just as it was able to reach the growing of wheat in Wickard.

That's the question that needs to be answered before I could come up with a definitive response to the hypotheticals that have been given to me.

Justice Ginsburg: Mr. Rosman, can we return to gender-based violence?

Mr. Rosman: I'd like to, yes.

[Laughter]

Justice Ginsburg: And I thought you said, at least for purposes of this argument, you're willing to accept the findings that Congress made that this does, indeed, deter women's full participation in the national economy.

In taking a look at what Congress did here, they didn't do the things that this Congress has said they can.

They didn't commandeer any State legislators.

They did not displace the State legal system.

They just provided an alternate remedy in an alternate forum.

Now, why can't Congress do that if they say, here's the effect on commerce?

We're not taking over the States' domain.

We are just complementing what the States do.

It's another auxiliary action just as giving them money for training is permitted.

Why isn't that satisfactory?

Mr. Rosman: First, Justice Ginsburg, as we spoke about earlier, it's our view that the power to regulate is the power to preempt so that whether or not Congress has exercised that power in a specific instance ought not to determine whether something is within Congress' commerce power.

Second, we do think that this statute does displace some State policies in the same way that the Gun-Free School Zones Act displaced some State prerogatives.

After all, the Gun-Free School Zones Act didn't preempt anything at all, and yet this Court held that it was beyond Congress' commerce power.

What's being regulated here, of course, is conduct...

Justice Ginsburg: Could you just tell me what... what is the clash here?

Because I'm not sure I understand it.

Mr. Rosman: For example, there are various assumptions under the common law between... about parental immunities and torts between people in the same family.

This statute says when you consider whether or not something is or is not a felony, you must disregard the relationship.

Justice Ginsburg: And if you're in a State that... that has a similar statute, then there's no clash.

Mr. Rosman: If a State had a similar... I'm sorry... a statute that disregarded the relationship?

Justice Ginsburg: That was just like the Federal remedy.

Mr. Rosman: Yes, by... by definition if they have exactly the same statute, there would be no clash.

But virtually all States have a basic common law presumption about contact and torts within a family that this statute asks the Federal Government, the judiciary, to ignore.

Justice Ginsburg: Well, let's lay aside that for a moment and take this case that's before us.

There's no question of family relationship here.

Mr. Rosman: No, just as there was no particular conflict in Lopez.

There was a statute in Texas which did the same thing as... as the Federal statute.

Justice Scalia: May I ask you another question about a modest change in this statute?

Say... assume this statute had a requirement of proving a jurisdictional fact in each case, such as in a gun case, you have to prove the gun traveled in interstate commerce.

Supposing here a part of the cause of action was that the plaintiff had to prove that as a result of the act she sued on, she was unable to enter the labor market or unable to go to school or something like that.

Would that save the statute in your view?

Mr. Rosman: It would certainly be a different statute.

Justice Scalia: I understand it would be different.

Do you think it would save the statute in your view?

Mr. Rosman: I think... I think the jurisdictional element was one of the two elements that Lopez identified, and that, yes, it could very well.

Justice Kennedy: My question is, do you think it would save the statute if it had that element in this case?

Mr. Rosman: Without a little more knowledge about the exact jurisdictional element that you'd be adding, I think it would be impossible to say for sure.

But yes, it would be a much closer case and Congress, I think, by adding jurisdictional elements in general... your general idea of saving this kind of statute by adding jurisdictional elements we agree with.

Justice Kennedy: Can we talk for a few minutes about the Fourteenth Amendment argument?

Mr. Rosman: Sure, I'd love to.

Justice Kennedy: Suppose that Congress finds... and there's substantial evidence for the finding... that if black people are assaulted, prosecutors do not treat the crime as seriously as they do if there's a white person assaulted.

Could Congress pass a two part statute, severable: one, making it a Federal crime to assault a black person on... on account of his race; two, giving a civil remedy to a black person who was assaulted so that the black person could sue the white person

Mr. Rosman: Well, they certainly could do so, Justice Kennedy, but they'd be doing...

Justice Kennedy: Under its Fourteenth Amendment powers.

Mr. Rosman: Oh.

Then I think the answer is no, that they could not.

And the reason derives from the text of the constitutional provision.

The constitutional provision states that Congress shall enforce the prohibitions in section 1.

The prohibitions in section 1 are against the States.

It says no State shall do this, no State shall do that.

Justice Kennedy: Would you agree that in my hypothetical I've established that there is a general denial of equal protection?

Mr. Rosman: Yes, in your hypothetical I believe there was.

Justice Kennedy: But you're saying...

Mr. Rosman: Assuming that States were acting...

Justice Kennedy: that Congress is so limited in the remedies that it can choose, that it cannot create a private cause of action, which is really in a sense... we can argue about this, but in one sense less intrusive on that States?

Mr. Rosman: Well, the Fourteenth Amendment is intrusive on the States, Justice Kennedy, and this Court specifically considered statutes along the lines of what you're describing in United States v. Harris and the civil rights cases.

Congress...

Justice Breyer: I wouldn't think they made the argument that Justice Kennedy advanced; that is, as I understood his question, there is a clear finding that the State in its courts or in its legal system says where a black man and a white man are fighting it out in our legal system, the white man always wins, for example.

And so, to remedy that situation, to remedy that... nothing to do with the white man who's always winning... to remedy the failure of the court system to apply the law equally, we create an optional Federal remedy.

That's what I took as his basic question.

And my response to your answer would be could you explain it.

Why isn't that a perfectly good remedy for a State's failure to follow the Equal Protection Clause?

Mr. Rosman: First, as we've set forth in our brief, we think that's exactly the situation that existed in the civil rights cases.

Justice Breyer: That may be.

If it is, they didn't address the argument, and therefore, I would like to know the reasoning as to why that isn't a remedy for the State's deprivation of equal protection of the law.

Mr. Rosman: Because the text of the statute says that Congress will enforce the prohibitions...

Justice Breyer: They are enforcing the Equal Protection Clause.

The Equal Protection Clause... State, treat black people and white people alike.

State, you have failed to do that.

Therefore, we enforce that by giving the black person this Federal remedy.

Mr. Rosman: I don't believe that would be enforcement litigation because it would be doing... legislation... it would be doing nothing to the States to get them to comply with the Fourteenth Amendment.

It would be as if Congress decided that instead of having schools in the south to segregate in the 1950's, they would offer separate Federal schools.

That would not be enforcement legislation.

The proper... proper interpretation of section 5 is that Congress must do something so that the States are no longer engaging in the conduct which violates section 1.

Justice Scalia: You're saying section 5 does not provide, as a remedy for the State's failure to abide by the Constitution, the Federal Government's abolition of the Federal system.

Mr. Rosman: That's correct, Justice Scalia.

That's a very succinct way of putting it.

Yes.

Justice Ginsburg: Mr. Rosman, can... can I ask why, if we have in so many fields involving discrimination, parallel State and Federal regulation, public accommodations, employment, we don't say that that's a traditional area for the States just because they got there first, which they did?

In both areas there was State legislation before Federal.

So, if you can have harmonious legislation for public accommodations, for employment, then why not here?

Mr. Rosman: I take it we've moved back to the Commerce Clause, Justice Ginsburg.

And I think the answer to your question is because this isn't commerce.

The reason that there was harmonious legislation on both the Federal and State level in the examples that you described is that Congress is regulating commerce.

This is not commerce.

This is violence.

This is interpersonal violence, the kind of thing the States have always had the exclusive province of regulating since the start of our country.

Justice Souter: Going... going back to section 5, I take it on... on your view any civil remedy provided by Congress exceeds the section 5 power then.

Mr. Rosman: Any civil remedy...

Justice Souter: Yes.

Mr. Rosman: against private individuals?

Justice Souter: That... that may be brought by a private individual against a perpetrator.

Mr. Rosman: Against a private perpetrator.

Yes.

The answer to your question is yes.

Justice Souter: Okay.

Justice Scalia: Well, a private perpetrator who was engaged in a conspiracy that was acting under color of law?

Mr. Rosman: I had understood Justice Souter's question to refer to someone who was not acting under color of State authority.

You're quite correct.

Justice Scalia: But any private individual who... who is participating in a State's violation of an individual's rights can be sued privately.

Mr. Rosman: As this Court has been... has repeatedly said under section 1983.

But what Justice Frankfurter said in his plurality opinion in United States v. Williams is that an individual's interest in receiving a fair trial in State courts cannot be constitutionally vindicated by Federal prosecution of private persons.

That's essentially what this statute is trying to do, to create substantive Federal law to remedy State violations of the equal protection.

It is not enforcement litigation.

And, indeed, the various statutes that we spoke about just a moment ago, title VII, Equal Pay Act... thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Rosman.

The case is submitted.

Attribution:

The Oyez Project

Featured:

West v. Gibson - Oral Argument

Fri, 09 Jan 2009 14:50:14 +0000

Case:

West v. Gibson

Media File:

98-238_19990426-argument.mp3

Related Transcript:

1998_98_238_argument.xml

Transcript:

Argument of Barbara B. McDowell

Chief Justice Rehnquist: We'll hear argument now in Number 98-238, Togo West v. Michael Gibson.

Ms. McDowell.

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

The Equal Employment Opportunity Commission has the authority to award compensatory damages in the administrative process to redress violations of title VII by agencies of the Federal Government.

That authority is conferred by two provisions of title 42 read together.

The first is section 2000e-16, which authorizes the EEOC to award appropriate remedies in the administrative process against Federal agencies that violate title VII.

The second is section 1981a, which authorizes awards of compensatory damages in title VII actions against the Federal Government.

Chief Justice Rehnquist: But it doesn't specifically say by the EEOC in that section, does it?

Mr. McDowell: No, it doesn't, Mr. Chief Justice, but we believe that the two sections, read together, provide the EEOC with that authority.

Essentially, by waiving the Government's sovereign immunity with respect to compensatory damages, that made compensatory damages also an appropriate remedy that may be awarded in the administrative process by...

Chief Justice Rehnquist: So many administrative agencies award compensatory damages?

Mr. McDowell: Yes, they do.

Agencies themselves award it, and the EEOC on appeal also awards them in the administrative process.

Justice Kennedy: In those instances is there judicial review from the amount... from the agency award?

Mr. McDowell: If an employee or applicant for employment is dissatisfied with the award that's made at the administrative level, he can bring an action de novo in district court.

Justice Kennedy: What about the Government?

Mr. McDowell: The agency does not, though.

Justice Kennedy: So in the other statutory instances that you mentioned in your answer to the Chief Justice, I'm curious to know, are there any instances in which the Government is bound and cannot have judicial review of the amount of compensatory damages awarded by an agency?

Mr. McDowell: There are other statutory schemes that are somewhat similar.

For example, the Federal Employees Compensation Act, which compensates employees who are injured and killed on the job, doesn't have a judicial review mechanism.

Chief Justice Rehnquist: So the Solicitor General is arguing here for the proposition that the Government is subject to unreviewable damage awards on the part of the EEOC.

Mr. McDowell: Essentially, yes, Your Honor, that Congress made that determination in 1972 when it provided that only employees and applicants for employment can challenge EEOC awards.

Chief Justice Rehnquist: But at that time there were no compensatory damages available.

Mr. McDowell: That's correct, Your Honor, but there were back pay awards and other sorts of awards, including reinstatement, promotion and so on, that in many senses are more intrusive to agencies than compensatory damages.

Presently, of course, back pay and compensatory damages are both available in the administrative process and the back pay awards exceed the compensatory damages award by a factor of at least three.

Justice Souter: The Government would have the usual appeal if the damages were awarded in the district court.

Mr. McDowell: That's correct, Your Honor.

The court of appeals construed section 1981a as limiting the Government's waiver of sovereign immunity to proceedings in court in which a jury trial would be available.

That position is incorrect for at least three reasons.

First, the court of appeals' position is inconsistent with the administrative exhaustion requirement of section 2000e-16(c), which is a condition on the Government's waiver of sovereign immunity under title VII.

Justice Stevens: May I just clarify one other thing about the damages.

Supposing that the employee is dissatis... gets damages from the EEOC but he's dissatisfied with the amount.

Is it your view that the employee can go... still file an action seeking greater damages?

Mr. McDowell: Yes, Your Honor...

Justice Ginsburg: Okay.

Mr. McDowell: he may.

Justice Ginsburg: And one further clarification.

Is the EEOC a necessary stop for the employee, or can the employee go upon the agency to court?

If the agency says no, no discrimination, or discrimination but no back pay, can the employee skip over the EEOC?

Mr. McDowell: Yes, Your Honor.

The EEOC is an optional choice, although it certainly is a choice that is made by most employees in the process.

For example, in fiscal 1997 approximately 1,000 cases were filed by employees in court.

Approximately 7,00 appeals to the EEOC were taken.

That suggests that the EEOC is a desirable route for a large number of employees.

Justice Souter: It might have made sense for Congress to say, if you want damages you go immediately to court, and if you don't want damages, you can go to the EEOC.

Mr. McDowell: It might have made sense, but Congress did not say that.

Congress didn't disturb the administrative exhaustion requirement, which had always been understood to enable an employee or applicant to obtain full relief in the administrative process.

Justice Ginsburg: But you say... it's not exhaustion once it's an option that the employee can go there or not, and the second leg of your argument that I'm having difficulty with, I don't understand the extent of your exhaustion, waiver, or whatever.

Suppose the employee never asks the agency, it just said to the agency, you discriminated me... against me on the basis of sex, and the agency said, and he doesn't specify damages.

It was a he in this case.

Does he forfeit compensatory damages by not asking for it before the agency, or does the forfeiture come only from not asking for it before the EEOC?

Mr. McDowell: It would be our position in that situation that he would forfeit that by not asking for them at the agency level as well.

Justice Ginsburg: Is it true that most of these people at the agency level are not represented by counsel?

Mr. McDowell: I believe that's correct, Your Honor, at least a large number of them are not.

That's not to suggest, however, that most of them aren't asking for compensatory damages.

Indeed, they are.

Justice Ginsburg: Well, a lay person, really, terms like compensatory damages, they're not familiar with those words.

Does the agency or the EEOC have some kind of set of counsel, instructions, advice that says, when you file a complaint with us, this is what you can complain about, these are the possible remedies, so then we could say, well, the employee saw that, it's an intelligent action?

Mr. McDowell: There's no requirement that an employee be specifically advised of what sort of remedies he can receive.

However, the EEOC does have procedures that agencies are required to follow, that if an employee says anything to indicate that he has suffered compensatory damages, if he mentions emotional distress, for example, if he mentions that he's seen a doctor, the agency is supposed to make further inquiry to see whether a compensatory damages claim is indeed appropriate in that case.

The agency and the EEOC are not allowed to rely on an employee's failure to use particular magic words to request compensatory damages.

Chief Justice Rehnquist: Well, how does the agency know, then, what amount of compensatory damages are being sought when it's defending these charges in the EEOC?

Mr. McDowell: Well, presumably the employee, if he has made a claim for compensatory damages, bears the burden of proof, and the EEOC has held this, of establishing both the amount and the nexus to the alleged discrimination.

Chief Justice Rehnquist: Does the employee file some sort of a paper that says, you know, I want $ 50,000 in compensatory damages before the... in the EEOC proceeding?

Mr. McDowell: Well, the second step, actually the administrative process is the filing of a formal complaint at the agency level and that typically, as in this case, asks the employee what relief are you asking for, and in this case Mr. Gibson requested back pay.

He didn't request compensatory damages.

Chief Justice Rehnquist: And so... but under your view he didn't waive compensatory damages by not asking for them?

Mr. McDowell: That's... the view that the EEOC has taken is that he doesn't necessarily have to request them in his complaint or in particular words...

Justice O'Connor: Well then, how...

Mr. McDowell: but he does have to identify the need for compensatory damages at some point.

Chief Justice Rehnquist: How does the agency know how to defend against a complaint like that if it doesn't even request compensatory damages?

Mr. McDowell: Well, typically that is why it's our position that the employee does need to waive the compensatory damages claim if the...

Chief Justice Rehnquist: I thought you said just a minute ago he didn't have to.

Mr. McDowell: No, certainly he does.

He doesn't have to say compensatory damages in so many words, or he doesn't necessarily have to say compensatory damages in his complaint, but at some point in the administrative process he certainly does have to put the agency on notice.

Chief Justice Rehnquist: Well, but could it be at the very... I mean, if he doesn't have to do it in his complaint, which is where most claims for compensatory damages are made, could be doe it at the very end?

Mr. McDowell: Well, then there would have to be an investigation to determine the amount of his claim and whether it is connected with the alleged discrimination, so at some point there would be a fact-finding process.

In many of these cases there's actually an administrative hearing before an EEOC administrative judge at the agency level, and at that point, at times the evidence that's taken on compensatory damages claims can be quite extensive, including reports from competing psychiatrists, and so on.

Justice Scalia: Doesn't it put the agency in a rather peculiar position?

It's defending against a claim, and at the same time you're telling us that it will advise the plaintiff exactly what claim he has.

You see that if he sees that... if the agency sees that there's a basis for a compensatory claim, the agency will tell them to make a compensatory claim?

Mr. McDowell: The EEOC has held that it's appropriate when an employee indicates that he suffered that kind of damage to make further inquiry to see if what he is really seeking are compensatory damages...

Justice Scalia: I thought you said... I thought you were referring about the agency by which he is was employed.

He initially goes to that agency, doesn't he?

Mr. McDowell: That's correct, yes.

Justice O'Connor: Now...

Mr. McDowell: And there's a...

Justice Scalia: And you say he has to make the compensatory claim before that agency, as well.

Mr. McDowell: Yes, although the EEOC has said that in some instances he may defer raising the claim if he's not aware of it until he gets to the EEOC level, the second level.

In that case, if he raises it first before the EEOC, the typical procedure is for it to be remanded.

Justice Scalia: But he ordinarily has to raise it before the employing agency, right?

Mr. McDowell: Yes.

Justice Scalia: And you're saying that the employing agency is going, what, out of the goodness of its heart, to advise him that he has a compensatory claim which it should pay?

It puts the employing agency in a strange position.

It's both defending against the claim, and supposedly advising the plaintiff as to what claim he should make.

Mr. McDowell: Yes, he does, it does, and...

Justice Ginsburg: Well, Ms. McDowell, this...

Mr. McDowell: the EEOC has felt that...

Justice Ginsburg: the requirements, this is a peculiar kind of thing, but the... isn't the agency required to have an EEO officer who, when people complain about discrimination, is there to aid the person, so you have the agency both as being assistant to the complainant, and the agency is the adversary, but am I wrong in thinking that the agency is obliged to have an EEO counselor?

Mr. McDowell: Yes, and that's the very initial phase of the whole EEO process, is informal counseling, and this is an effort to try to resolve these complaints before a formal complaint is filed.

Justice Ginsburg: By the agency that would be the adversary?

Mr. McDowell: Yes.

Justice O'Connor: The informal counseling.

Mr. McDowell: Yes, that is a counselor of that agency, yes.

Justice Ginsburg: And that's kind of a conflict of interest, where the agency is counseling the employee, and presumably that's to tell the employee what his rights are, and then the agency ends up being the target of whatever complaint the employee files, but the agency does have that obligation, to be a counselor to the employee.

Mr. McDowell: That's correct, and as a practical matter there are different people performing these different functions within the agency.

The EEO counselors are supposed to be independent of those who are making the determination on the merits of a claim when it comes to that.

Justice Kennedy: Turning back to the sovereign immunity basic issue, are there any of these other statutes in which the agency has discretion to determine the scope of a sovereign immunity waiver?

Mr. McDowell: We're not arguing that the agency has the discretion to determine...

Justice Kennedy: Well, I thought you argued Chevron deference as to what is an appropriate remedy.

Are you withdrawing that part of your argument?

Mr. McDowell: We don't perceive that we were making precisely that argument, Your Honor.

It's our position that there does need to be a clear waiver of sovereign immunity, and that was made here in section 1981, that the question of appropriate remedies by leaving this broad language in the statute enabled the EEOC to determine...

Justice Kennedy: Well, your brief says... your brief quotes the Chevron rule that you can fill in gaps that are left.

It seems to me that you're saying that we should defer to your discretion in determining the scope of the waiver.

Are there... is there any other statute when an agency is allowed to do this?

Mr. McDowell: Not that we're aware of, Your Honor, no.

Returning to the administrative exhaustion requirement of section 2000e-16, that requirement has always been understood to provide a mechanism for full relief in the administrative process to enable employees and agencies not to have to go to court to litigate these issues.

It would be inconsistent with that statutory design to require an employee who still, everybody agrees, must go to the administrative level to exhaust his claims of liability and equitable relief, then to have to go to the district court to seek compensatory damages.

Justice Ginsburg: What would happen if the employee goes to the agency, gets counseled by the EEO advisor, who doesn't say anything abut the various types of damages, skips over the EEOC, goes directly to the court, at that point the employee has a lawyer and asks for back pay, compensatory damages, whatever.

Would there be any forfeiture in such a case?

Mr. McDowell: Yes, Your Honor.

the employee would still be required to have raised his claim for compensatory damages at the agency level.

Justice Ginsburg: Even though we are envisioning an uncounseled employee, and an officer in the agency who has the obligation to advise this uncounseled person about his rights?

Mr. McDowell: There's an obligation to advise about rights, but there's no requirement to advise about what remedies he should be requesting in the administrative process, so yes, we would say that his failure to exhaust administrative remedies by not requesting compensatory damages from the agency would require the dismissal of his claim.

That wouldn't necessarily mean that his claim would have to be dismissed with prejudice, however.

It's our position that the exhaustion requirement itself is jurisdictional to the extent that the issue must be raised before the agency, but the time limits for exhaustion are not, so in cases where justice might require, the district court could dismiss a case without prejudice to enable the employee to try to go back to his agency and exhaust the remedies that he failed to exhaust before.

Justice Ginsburg: It seems to me that if the EEOC is monitoring their system, it's very odd that there aren't instructions, as there are in many cases.

Agencies will give a party appeal instructions, if you don't like what we do you can go here, and not to tell an uncounseled employee who just says, I want money, what the options are, and for the Government to be advocating that kind of a forfeiture, that kind of a waiver, an unintelligent waiver, seems to me strange.

Mr. McDowell: Well, in many circumstances, Your Honor, somebody who is seeking relief from the Government is required to inform himself or herself of what the statutory remedies provide.

Certainly in this case...

Justice Ginsburg: Yes, well, usually when we go to court, that's a different kind of setting, but here we're before the agency, where it's supposed to be not an adversary relationship at first, at the very first stage.

It's an... the agency says, here, we'll give you a counselor.

The counselor will tell you all about what your rights are.

And then you say, well, the counsel should have told him that he waives something he didn't know about.

It just strikes me as strange.

Mr. McDowell: Well, as we say, it wouldn't entirely preclude an employee who could establish once he went to court that he had a good reason for not having raised the claim before.

It's our understanding that most employees are quite well-informed of their ability to obtain compensatory damages.

Currently, I understand, of those cases that are appealed to the EEOC in which compensatory damages are theoretically available because they're under title VII of the Rehabilitation Act that in excess of 80 percent involve requests for compensatory damages, so I don't think the situation you posit of employees being uninformed of his rights...

Justice Ginsburg: Well, who is informing them, then, if they're now asking for something that a lay person would... that term, as you said, that magic term wouldn't spring into the head of uncounseled... so you said... and that may be what's happening now, but are they being advised by someone that there is this possibility?

Mr. McDowell: Well, as I indicated previously, once an employee puts the agency on notice that he suffered emotional loss, medical expenses, something of that nature, then the agency is supposed to make inquiry, but as a general matter in every case across the board there's no instruction from the EEOC that employees have to advise... employers have to advise employees of any particular remedies that are available to them, whether it's back pay or a statement of compensatory...

Justice Stevens: May I ask you a factual question just to... in... you said I think there are 7,000 complaints with the EEOC every year.

Are those involving Government employees?

Mr. McDowell: That's correct, yes.

Justice Stevens: And in 80 percent of those, damages have been awarded by the EEOC?

Mr. McDowell: No.

In 80 percent of those cases there's a claim for compensatory damages, which suggests simply that employees are aware of...

Justice Stevens: And... but what roughly is the percent in which claims of compensatory damages are made, do you know?

Justice Scalia: Well, that's the 80...

Mr. McDowell: That's the 80 percent.

Justice Stevens: Oh, that's the 80 percent?

Mr. McDowell: Yes.

Justice Stevens: Oh, I see, but they're... now, does the EEOC write some kind of an opinion when it disposes of these cases?

Mr. McDowell: Yes, it does.

Justice Stevens: And they're all reported, are they?

Mr. McDowell: They're reported on West Law.

They're reported through other mechanisms as well.

They're not reported in a volume like F Supp. though.

Justice Stevens: And there are cases in which the EEOC has awarded damages, and then the employee later sued and got more damages in court?

Mr. McDowell: I'm not aware of any actual cases in which that happened.

However, theoretically that's a possibility...

Justice Stevens: I see.

Mr. McDowell: because an employee if dissatisfied can go to court.

Justice Scalia: How many cases before the agency request compensatory damages?

Justice O'Connor: Do you know that?

Mr. McDowell: I'm not aware of that at this point, no.

Justice Scalia: And that is probably a much greater number of cases than the cases that go to the commission.

I mean, most of the cases resolved finally at the agency level?

Mr. McDowell: Most are.

There were approximately 26,500 cases resolved at the agency level in fiscal '97 as opposed to 7,000 cases that were appealed, so one would think a lot of cases are going away at the agency level.

About a quarter of the cases are settled at the agency level for relief that could include compensatory damages.

Chief Justice Rehnquist: Can the agency award compensatory damages?

Mr. McDowell: Our position is yes, Your Honor.

Justice Stevens: Well...

Mr. McDowell: However, the Eleventh Circuit has held otherwise.

Chief Justice Rehnquist: And what would be the authority for that, the statutory authority?

Mr. McDowell: The statutory authority would be the same as the authority that applies to the EEOC itself.

There's further authority in section 2000e-16 saying that the agencies are those who have the primary responsibility in the Federal Government of enforcing equal employment opportunity.

Chief Justice Rehnquist: Well, does it say anything about awarding... the agency awarding appropriate relief?

Mr. McDowell: No.

There's nothing about the agency itself awarding appropriate relief, although there is authorization, of course, to the EEOC to award appropriate remedies and for the EEOC also to promulgate rules and regulations.

Chief Justice Rehnquist: Yes.

That doesn't help you much with the agency, though, does it?

Mr. McDowell: No, it doesn't.

Justice Scalia: And it would be a very strange scheme, it seems to me, if you don't have to ask for compensatories at the agency level but you do at the EEOC level, especially since you could come directly from the agency to district court if you wanted to.

Mr. McDowell: That's correct, and that's why it's generally our position that one must raise it at the agency level.

Justice O'Connor: I see.

Mr. McDowell: There are those...

Justice Scalia: Yes, but it really is one hypothesis built on another.

I mean, you have questionable authority for requiring it to be raised before the EEOC, and your only authority for requiring it to be raised and allowing the original agency to grant compensatory damages is, God, if you allow it at the EEOC it doesn't make any sense not to allow it at the agency.

Mr. McDowell: Well, there's one other point, Justice Scalia, and that is that everybody agrees that an agency can settle a claim for an amount that includes compensatory damages.

The general rule there is that an agency can settle a claim for any sorts of damages that could be awarded ultimately in court, and so many of these cases in which compensatory damages as actually are paid over at the agency level involve settlements...

Justice Scalia: Well, we're...

Mr. McDowell: so there's a reason to exhaust just for that purpose.

Justice Scalia: We're talking a lot of cases that will be dumped directly into district courts.

I mean, more than the, what was it, 7,000 from the EEOC.

It may well be that a large number of cases that never got to the EEOC that were resolved at the agencies with compensatory relief would not be resolved there any more but would have to come to the district courts if the plaintiff wanted compensatory relief.

Mr. McDowell: That's correct, and if the court decided the case in a manner that precluded the agencies from awarding it as well.

Chief Justice Rehnquist: Is there any sort of a contested proceeding before the agency?

Justice O'Connor: I mean...

Mr. McDowell: Yes.

Chief Justice Rehnquist: really the only... I thought the only way an agency could handle the case would be to settle it or else to deny relief.

Mr. McDowell: No.

The agency conducts an investigation and ultimately issues a decision on the merits if the case hasn't previously been settled or dismissed on procedural grounds.

The employee can request a hearing as well before an administrative judge of the EEOC.

That is requested in a third to a half of all cases.

Chief Justice Rehnquist: Does the... do we find cases in which the agency awards compensatory damages against itself?

Mr. McDowell: Yes.

It's not a large number of cases, but there are some.

Justice Breyer: Could you focus for just a second, please, on the jury trial argument?

I take the argument against you as being that 1981 says that in an action brought under 717, and this is an action brought under 717, a party can ask for compensatory damages, so you would have thought they could.

But it says in (c) that if a complaining party seeks compensatory damages any party may demand a trial by jury, and since it's obvious the EEOC is not a place where you'd have a trial by jury, it's obvious that this doesn't apply to the EEOC, the waiver that's in 1981.

That's the argument, and I'd like you to respond to that argument.

Mr. McDowell: We think that the most appropriate construction of the jury trial provision as applied to Federal employee cases is that if, indeed, a case reaches district court because the employee was not satisfied with either the administrative agency's award or the EEOC's award, then either party can, indeed, request a jury trial, but this doesn't foreclose the EEOC from doing it.

Justice Breyer: Now, has that ever been determined?

I ask that because the argument continues, the Government isn't going to be able to ask for a jury trial.

They're going to be bound by the EEOC.

Do you mean that a private party files the complaint for compensatories, they're denied, and then does the whole thing over again in the trial court?

Is that your position, that that's what that provision means?

Mr. McDowell: Yes.

It's important to know...

Justice Breyer: Has it ever been interpreted?

Mr. McDowell: Pardon me?

Justice Breyer: Has it ever been interpreted authoritatively?

Mr. McDowell: No, not that I'm aware of.

Justice Breyer: But the Government's position is that means that if you don't get compensatories before the agency, you have a right under that provision to have the issue done anew in the trial court.

Mr. McDowell: That's correct, yes.

It's important to recognize that the jury trial provision is a general provision.

It was not directed specifically at the Federal Government.

It's part of a provision that applies to all title VII cases whether against the Government or against private employees.

This provision is already in the legislation that became section 1981a before Senator Warner offered his amendment to extend compensatory damages to Federal employees as well.

Justice Stevens: Of course, the words appropriate remedies were also in 2000e-16 before they included compensatory damages, weren't they?

Mr. McDowell: That's correct, and Congress was certainly award of that provision at the time that it enacted section 1981a.

If it had intended at that point to limit the available remedies to appropriate equitable remedies, presumably Congress would have said so, but it didn't.

Justice Stevens: No, but the amendment in 1981a, the jury trial point, it emphasized it focuses on actions for damages.

You think of a judicial proceeding, and that indirectly is amending in your view also the authority of the EEOC under 2000e-16.

Mr. McDowell: Yes.

Justice Kennedy: Yes.

Mr. McDowell: It's also important to recognize that all of this legislation was enacted against a historical background of Congress' historical aversion to jury trials on monetary claims against the Government.

Certainly that's reflected in the Tucker Act and the Federal Tort Claims Act, where a condition of the Government's waiver...

Justice Stevens: Yes, but the Government... there is a right to a jury trial on both sides once you get to court, in your view.

Mr. McDowell: That's correct, so this is a somewhat different provisions but in order to jump from the existence of this provision to a condition on the waiver of sovereign immunity is a greater...

Chief Justice Rehnquist: Well, but this is less favorable to the Government than simply having no jury trial for either party.

Here, the plaintiff gets to go to district court if he's dissatisfied.

The Government doesn't get to go at all.

Mr. McDowell: Yes, and that's a choice that Congress made back in 1972, Your Honor.

Chief Justice Rehnquist: You say that Congress made this choice when it favors your position, but then you say that traditional sovereign immunity principles suggest that the Government doesn't like jury trials.

The Government certainly would rather have a jury trial than no trial at all, I would think.

Mr. McDowell: Well, Congress decided otherwise when it determined that finality was more important than whatever extra accuracy would be obtained by judicial proceedings with respect to equitable relief, back pay and so on, under title VII.

That's...

Justice Scalia: Of course, when the Government has no trial at all, it's the Government's own fault, right, because it's the Government itself which has given judgment against itself at the agency instance, right, so...

Mr. McDowell: Well, to a certain extent...

Justice O'Connor: Yes.

Mr. McDowell: one could look at it that way.

Justice Scalia: You could blame it on itself.

Unidentified Justice: [Laughter]

Mr. McDowell: If there are no further questions, I'd like to reserve the remainder.

Argument of Timothy M. Kelly

Chief Justice Rehnquist: Very well, Ms. McDowell.

Mr. Kelly, we'll hear from you.

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

I'd like to address initially Justice Ginsburg's concerns about the issue as to how an employee goes about requesting compensatory damages.

I think if you take a look at the appendix, the joint appendix in this case, at the two fold-out pages in the center, I believe pages 23 and 24, you'll see the actual EEO form that Mike Gibson filled out back in 1992 when this case initially arose, and you'll see in that form that there's really no place for an employee to indicate that he wants compensatory damages.

The only question that's asked on this form relating to any kind of remedy at all, it asks not what injury you suffered, but what corrective action are you seeking.

It's our position that this request for corrective action is in direct lineage with the interpretation of the Federal employee section of title VII, which has always held that only equitable remedies were available for either Federal employees or private employees of discrimination until the 1991 act was passed.

Justice Souter: And I suppose it goes to the obligation to raise the issue at the agency level.

I mean, if I were reading that form I would not get a hint from the section referring to corrective action that it might be appropriate for me to ask for damages.

Mr. Kelly: And that's exactly our position both in the district court and in the Seventh Circuit with respect to Mike Gibson's exhausting his administrative remedies and the argument that the Government ought to be estopped from raising the bar of exhaustion in this particular case, because the facts are undisputed that Mike Gibson was never advised of a right to compensatory damages.

Chief Justice Rehnquist: Mr. Kelly...

Mr. Kelly: Yes, Your Honor.

Chief Justice Rehnquist: the records, your client's name is Michael Gibson on the record.

Is there any particular reason you refer to him as Mike?

Mr. Kelly: Only because that's how I know him, Judge.

Chief Justice Rehnquist: Well, this is a court, not a jury.

Mr. Kelly: Mr. Chief Justice, and I apologize.

Justice Scalia: You have a bad form there.

Maybe they should amend the form.

Mr. Kelly: Well...

Justice Scalia: The fact that that doesn't clearly say... and I agree with you, corrective action does not suggest compensatory damages.

It suggests back pay, reinstatement, and so forth, so they should devise a new form.

Mr. Kelly: Well, and...

Justice Scalia: I mean, they have to make... well, I'm... I shouldn't be critical.

This may win your case, but it doesn't... but not on the ground that you're arguing for, not on the ground that the statute doesn't require it to be asked for.

Maybe on the ground that your client was misled or something, but...

Mr. Kelly: Well, and Justice Scalia we have argued all three of those grounds.

The Seventh Circuit decided the case on the sovereign immunity issue, but we have maintained the argument that Mike Gibson was deceived, and in fact that Mike Gibson...

Justice Scalia: Well, we didn't grant cert on that, did we, and if it came to that we would probably... my guess is remand to let them figure that out.

Mr. Kelly: You did not, Your Honor, but the opinions of this Court indicate that it's the judgment that's reviewed not the reasoning of the court of appeals, and all of the arguments that we've presented are strong reasons to affirm the judgment of the court of appeals if not according to the same reasoning, and we do agree with the reasoning of the Seventh Circuit.

I point this out because not only did the form draw Mike Gibson in a different direction, the regulations, the EEOC regulations specifically require the agency and the EEOC to advise Mike Gibson of his rights and to oversee this instruction of pro se litigants through the administrative system, and that was never done.

Justice Scalia: Well, that... I repeat, that's really not the issue that we're interested in.

Why don't you assume for purposes of your argument that this form were required to be corrected, as the Government would doubtless say it ought to be, to say what... not what corrective action are you seeking, but what remedies of any sort, including compensatory damages, are you seeking.

Then what would your argument be?

Mr. Kelly: Well, in that event, Your Honor, we have argued also that Mike Gibson invoked the compensatory damage remedy by telling the investigator from the Veterans Administration that he was seeking a monetary cash award.

The EEOC has ruled that a request for an appropriate cash reward is a request for compensatory damages, and for the agency to take the position that monetary cash award is a request for compensatory damages, and appropriate cash reward is not a request, or vice versa, we think is a return to the hypertechnical exhaustion requirement that predates giving Federal employees access to the Federal courts in 1972.

With regard to the sovereign immunity issue, we have argued not only the jury trial provision of section 1981a, and I believe that the... Ms. McDowell misreads section 1981a(c), because the jury trial provision does not begin with, if a case gets to Federal district court, then you have a right to trial by jury.

It says, if a complaining party...

Chief Justice Rehnquist: Where are you reading from, Mr. Kelly?

Mr. Kelly: I'm reading from section 1981a(c).

Justice Scalia: And where will we find that in the brief?

Mr. Kelly: Your Honor, that's in the appendix to the cert petition, page... that's page 32a.

Chief Justice Rehnquist: Thank you.

Mr. Kelly: The statute says, if a complaining party seeks compensatory or punitive damages, then either party may demand a trial by jury.

In this case, it must be conceded that a Federal employee asking for compensatory damages at the administrative level is a party seeking compensatory or punitive damages.

The definition of complaining party specifically includes both actions and proceedings, and so that provision must refer to all instances when a party...

Chief Justice Rehnquist: And yet clearly no party can demand a trial by jury before the EEOC.

Mr. Kelly: Clearly, which is why we interpret section 1981a to provide for compensatory damages at the Federal district court level, not at the administrative level.

In addition to the right to a jury trial, section 1981a(a)(1), which is on page 31a of the appendix, provides in the operative language granting the right to compensatory damages for compensatory damages in an action, and skipping down to the bottom of the provision, in addition to any relief authorized by section 706(g) of the Civil Rights...

Chief Justice Rehnquist: This is (a)(1) you're reading from?

Mr. Kelly: This is (a)(1) of 1981a.

In addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964.

Those provisions, both by referring to an action as opposed to a proceeding, and by referring to the judicial remedy provision of title VII, which is 706(g), specifically refer to actions, civil actions in Federal district court, and not to administrative proceedings.

In title VII, as the Court recognized in New York Gaslight Club v. Carey, in general the term action refers to civil action, and when Congress is referring to more general issues of State and local and administrative enforcement, it almost always uses the word, proceeding, or proceedings.

Justice Breyer: Well, I don't... I... going back for a second to your jury trial, which is the point that is confusing me at the moment, I might agree with you... I don't see how... the Government originally said that if it's not an administrative action there'll be a lot of extra time, expense, disruption, delay to give them... you remember that in their brief, or petition for cert....

Mr. Kelly: I do, Your Honor.

Justice Breyer: All right.

I accept that that's not so if you're going to give two bites at the apple to every plaintiff, but in their brief on the merits here they don't say the plaintiff gets two bites at every apple.

What they say is, maybe there isn't a jury trial right, but they say may... in footnote 19, do you remember that?

When they go into that, they say, maybe there is, maybe there isn't.

It says, arguably, at least, the Federal employee is not proceeding under this section.

Do you remember that?

Mr. Kelly: In...

Justice Breyer: And it's under this section you get the jury trial right.

Mr. Kelly: And it's...

Justice Breyer: My question is, can you elucidate that a little bit?

I mean, I'd get your point completely if it's really true there's a jury trial right, but I'm not sure they've conceded that in their brief, and so I'd like a little bit of elaboration on the assumption that there isn't a jury trial right for a plaintiff who says, I want... he says to the agency, I want a compensatory action.

You get that before the agency, but maybe you don't get it in court.

I've got it on the assumption you do get it in court, but what if it isn't, if you don't have a jury trial right?

Mr. Kelly: I'm sorry, Justice, I'm not understanding in what circumstance you might not get a jury... the right to a jury trial if you went to court.

By my reading...

Justice Breyer: What they say in their brief is, a Federal employee may not be proceeding under this section, within the meaning of section 1981a(c)(1), which he seeks compensatory damages under the administrative process.

He is instead proceeding under 42 U.S.C. 2000e-16(b), which, as discussed above, gives the EEOC the authority to enforce title VII remedies.

Maybe I didn't understand that properly.

Mr. Kelly: As I understand the Government's argument, it is that they're proceeding under section 717, or section 2000e-16, that is, rather than under section 1981a, and I think that there are several problems with that approach.

Justice Scalia: Mr. Kelly, before you describe the problems, did you understand that to... the Government to be saying that there's no right to jury trial in the court?

I thought that this was just an explanation of why there is no right to jury trial before the agency.

Mr. Kelly: That's the way that I understood it, Your Honor.

Justice Breyer: Maybe that's the explanation.

Maybe that... okay.

Sorry.

Justice Scalia: Skip it.

It's the only reason I didn't underline footnote 19 in red when I read the brief.

Justice Ginsburg: We can ask the Solicitor General to clarify that, but it seems absolutely clear that when you're in district court you get a jury trial.

That's what Congress provided, and... but your reading of this does seem to me a little strange, because you're talking about, oh, they waive sovereign immunity, the Government waives sovereign immunity but only in district court, not at the lower level, and yet Congress is acting in the interest of the Government.

When you get into court with a jury, there is the possibility of a bigger box than what you would get before the agency, so in the Government interest to get the thing wrapped up at the agency level, so if they're going to waive sovereign immunity before a jury, then it seems most likely that they will say, of course we'd rather have it disposed of without making it a Federal case and without the possibility of a jury making the award.

Mr. Kelly: Well, and Judge, I think that the answer to that is that the title VII procedures for Federal employees have always been perceived as primarily a conciliatory mechanism and not necessarily an adjudicatory one.

The idea in the agency is to resolve the problem, get the employee back on track and working, and working at the level that he should be working, and that can be done by offering compensatory damages, by offering equitable relief, and there's no bar in the statute to voluntary mechanisms for achieving that.

What the problem comes in is having the agency award compensatory damages, or having an EEOC force an agency to spend money in compensatory damages to an employee.

I think that there are really four reasons that Congress would have conferred this right in a Federal district court and not in an administrative agency.

The first is the independence and objectivity of the judicial branch.

These employment discrimination suits are mainly intramural events between executive branch officials and their agencies, or between the agencies and the EEOC.

Justice Ginsburg: Before you go onto that, can you go back to what you said before, because I'm not sure I grasped it.

I thought... are you saying that if the agency wants to, it... what authority, in your view, does the agency and EEOC have to... with respect to compensatory damages?

Mr. Kelly: It... Judge, it's... it's our... I'm sorry, Justice Ginsburg, it's our understanding that the Government, like a private litigant, is able to offer relief or damages in settlement in anticipation of a liability.

The liability for compensatory damages at the Federal district court level we believe authorizes the agency to offer a settlement.

This is done voluntarily, not under compulsion, not... and only...

Justice Ginsburg: But I didn't know that the agencies had authority to voluntarily waive sovereign immunity unless Congress sanctioned that.

Mr. Kelly: Well, it's our position that they don't have the ability to voluntarily waive sovereign immunity.

Justice Ginsburg: But you just said that they could make a settlement that included...

Mr. Kelly: And...

Justice Ginsburg: compensatory damages.

Mr. Kelly: And it's my understanding that the Federal Government is able to make a settlement, to engage in voluntary negotiation in the same way that a private party is, which is different than the exercise of Government...

Justice Scalia: There's some general settlement statute, isn't there?

I think there used to be, anyway.

Mr. Kelly: I believe that this is... and there's... the Comptroller General's Office has issued regulations that indicate that a settlement in anticipation of litigation is an appropriate means for...

Justice Souter: Isn't that the answer?

They can always anticipate that at some point the claimant will end up in court, and they know that if the claimant ends up in court, there can be damages, so therefore their settlement authority would include the payment of something with respect to compensatory damages.

That would... isn't that the answer to sort of the waiver problem?

Mr. Kelly: That's much more succinct than...

Justice Scalia: The trouble is, I don't know of any settlement authority to settle for more than is asked for, and what you're allowed to ask the agency for is restitution, you know, back pay and reinstatement.

It's hard to come under a settlement authority when, you know, you're asking for $ 100,000 and the agency says, well, we'll settle for two.

I doubt whether that comes within the settlement authority.

Justice Stevens: May I... I'm sorry, have you answered his question?

Mr. Kelly: I'm not... I'm not sure if it was a question.

Justice Scalia: That's what you're saying, isn't it, that you can come before an agency with no compensatory claims, just reinstatement and back pay, and say, you know, I want $ 100,000 and the agency says, well, you know, we'll settle for two.

Justice Kennedy: Can the agency do that?

Mr. Kelly: Like any other litigants, if the complainant says, if you don't give me $ 100,000 I'll take you to court, I think that the agency has the ability to take into consideration a compensatory damage claim that will be made in the future in order to settle the case in...

Justice Souter: So all he has to say is, I want back pay, I want reinstatement, and I want $ 100,000.

Mr. Kelly: Right.

Justice Souter: And if you don't give it to me, I'm going to go to court.

Mr. Kelly: That's right, and it's clear that Congress... whether he's correct or not in wanting $ 100,000 for compensatory damages, it's clear that Congress gave him the right to go to court whether he gets it or not.

Justice Souter: Are you... you were in the midst of four reasons, and the first one was the, I guess relative objectivity of the court.

Mr. Kelly: That's right.

The judiciary acts as a check in that instance on executive officials awarding nonpecuniary compensatory damages to...

Justice Souter: Yes, but isn't the danger not that executive officials are going to give the bank away, but that a jury is going to give the bank away?

Mr. Kelly: Well, and that's the second reason, Your Honor, and that's the expertise of the Federal district court and juries in awarding compensatory damages.

Compensatory damages have been committed to the judgment of juries and judges for at least a couple of hundred years.

Justice O'Connor: Of course, your...

Justice Scalia: The expertise of juries?

Justice Stevens: That's the reverse Chevron doctrine.

Unidentified Justice: [Laughter]

Justice Souter: Your argument has to be the same, I take it, for punitive damages.

Mr. Kelly: Well, there are no punitive damages available against the Federal Government.

Justice Breyer: You're basically... you've clarified...

Justice Stevens: May I ask a question about this... I really am confused about this statutory scheme, I have to confess.

I had read, before getting more confused during the argument...

Unidentified Justice: [Laughter]

Justice Stevens: the 2000e-16(b) as the kind of authority to EEOC where the EEOC was the original, you might say the nisi prius tribunal, where an original complaint is filed with them, but actually in the system as it actually works, the EEOC is sort of an appellate tribunal.

It reviews what the separate agencies do.

Is there any statutory language anywhere that says that what they're supposed to do, that they have a review function that in fact passes on...

Mr. Kelly: The...

Justice Stevens: and if so, where is it?

Mr. Kelly: The same section, subsection (b), indicates that the EEOC may promulgate rules, regulations, orders...

Justice Stevens: Right.

Mr. Kelly: and so forth.

Justice Stevens: But decide cases on review of decisions by other agencies, does anything say that?

Mr. Kelly: Well, there's a... kind of a glancing blow that idea in section 2000e-16(c), which refers to the procedure that needs to be followed before the case goes to Federal district court.

That refers to the time limits after an agency decision, and if...

Justice O'Connor: I see.

Justice Scalia: Yes, right.

Justice Stevens: I see.

Mr. Kelly: there is an appeal to the EEOC...

Justice Stevens: Thank you.

Mr. Kelly: then the time limit after the EEOC.

Justice Breyer: Do you just... one quick thing.

Surprisingly enough, you did clarify the role of the jury in my mind.

The other thing I'm not certain on is, I gather in... historically speaking there's... what I heard was the Government say about 80 percent of these types of complaints before the EEOC do ask for some kind of compensatory damages in some way or other.

Have you any rough idea as to how many cases they were granted in?

Is this zero?

Is this the first one?

Is it... do we have any rough idea of what the history is?

Mr. Kelly: There are some published statistics.

Unfortunately, the EEOC doesn't keep its statistics according to the number of compensatory damages cases where awards were made, and so it's impossible to say how many... in how many cases compensatory damages were awarded, but there has been money awarded both at the EEOC level and at the agency level for compensatory damages, according to the statistics.

Justice Breyer: So there's some kind of practice and history of them awarding compensatory damages.

Mr. Kelly: Well, beginning in 1992 with the Jackson decision, which by the way is not published, and was not published in West Law or any of the private reporters, not all EEOC decisions are published in those sources, but beginning in 1992, agencies grudgingly began to award compensatory damages, or at least consider awards of compensatory damages in certain cases, and the EEOC generally has remanded cases for consideration of compensatory damages rather than awarding them itself, but there are some cases where the EEOC has awarded compensatory damages.

Justice Breyer: Can you go back and finish your fourth... I mean...

Justice Scalia: Three and four.

Our attention span is really not that long.

Unidentified Justice: [Laughter]

Justice Scalia: I'm glad you didn't have seven or eight points, because... what are three and four?

Could you tell us quickly?

Mr. Kelly: The third reason I think is parity of Federal employees and private employees, and in this situation, finally I think Congress has managed to put Federal employees and private employees on an equal standing with regard to compensatory damages.

When they've attempted that in the past they've failed for various reasons.

Chief Justice Rehnquist: But they have not put private employers and Federal employers on a parity, have they, for damages?

Mr. Kelly: They... with respect to...

Chief Justice Rehnquist: So far as the right to go from the agency to court.

Mr. Kelly: With respect to all of the damages except punitive damages, I believe that they are on a parity.

Chief Justice Rehnquist: Well, a private employer can appeal an EEOC award to the district court, can it not?

Mr. Kelly: The EEOC doesn't make awards against private employers.

The function of the EEOC in private cases is entirely conciliatory in mediation.

There's no...

Chief Justice Rehnquist: So it has to go to court itself to...

Mr. Kelly: Those cases go to court, or they're settled before they get to court.

Justice Ginsburg: And how does it work with the legislative employees, because that's yet another scheme.

We have the private sector, we have the Federal Government, and what is for the legislative employees?

Mr. Kelly: Well, the congressional Accountability Act sets up I think yet another scheme, administrative scheme for awarding compensatory damages, and that's an election system.

After 90 days, the Federal... or the congressional employee has the option of either staying in an administrative process where the administrative agency is explicitly given the power to award both equitable and compensatory damage type relief, or he can elect to go outside the administrative system and straight to Federal district court.

Justice Ginsburg: In the... for the legislative employee, if he elects the administrative route, the EEOC route, is... can he, as in the case of an executive employee, go to court at the end of the line for de novo review if he's dissatisfied?

Mr. Kelly: No.

It's not technically the EEOC that he goes to.

It's an administrative agency within the Congress.

Justice O'Connor: Right.

Mr. Kelly: But no.

Those cases are appealed...

Justice Ginsburg: So it's self-contained.

It's either, you get court route, or you get the administrative route, but you don't get, as with executive employees you can go to the EEOC if you want to, but you've always got a right in the end to come to court.

Mr. Kelly: That's correct, Judge.

Justice Scalia: I give up, Mr. Kelly.

I'm not going to wait for your fourth point.

Mr. Kelly: The fourth...

[Laughter]

Justice Scalia: I have a question that has perplexed me.

What happens when you... when a claimant brings an action or a proceeding before... administratively, is unsatisfied with the result, and therefore may institute suit in district court for the back pay and the reinstatement remedy, right?

Mr. Kelly: Correct.

Justice Scalia: Now, that same claimant under your system, if he had a compensatory damages claim, would have filed a compensatory damages claim in district court.

Mr. Kelly: Correct.

Justice Scalia: Do those two district court actions now proceed separately?

Mr. Kelly: It's my understanding that the Federal employee is still required to exhaust administrative remedies with respect to the equitable relief and therefore it would not be until after the administrative process was exhausted...

Justice Scalia: Right.

Mr. Kelly: that he would make both the claim for equitable relief and the compensatory damages...

Justice Scalia: Why?

Why would he make them all together?

I mean, why couldn't he file a suit immediately for the compensatory relief while he's asking for the other relief administratively, if there's no exhaustion requirement?

Mr. Kelly: Well, it would be difficult to point to the statute and say what the answer to that question is, but in Brown v. General Services Administration this Court interpreted section 2000e-16(c) to mean that the Federal employee is required as a prerequisite to going into Federal court to exhaust administrative remedies.

Justice Scalia: But you're telling us there's no exhaustion.

I mean, I thought your whole case was that there's no exhaustion requirement in this situation.

Mr. Kelly: There's no requirement to present the compensatory damage claim to the agency.

There's a right to present a compensatory damages claim in the first instance to the Federal district court.

I believe that there's merit in the suggestion that a Federal employee could bring a compensatory damage claim separately.

I wonder whether...

Justice Scalia: If he brought them all together, if he waited for the agency to deny his back pay and reinstatement claim, and then he could bring them all together and get a jury trial on the back pay and reinstatement, which he would not get otherwise.

Mr. Kelly: I don't think that that's the way that it would work, Your Honor.

Justice Scalia: Well, if you're entitled to a jury, you're entitled to a jury on all the factual questions in the case.

You can't have the jury deciding the facts one way and the judge deciding it another for the other two issues.

I mean, surely the jury would determine all the factual matters, wouldn't it?

Mr. Kelly: I believe that the jury would determine the factual matters in that it would determine whether discrimination occurred and what amount of compensatory damages was available.

Justice Scalia: And...

Mr. Kelly: I think that the judge could then determine, after the jury had decided those facts, based on the facts, whether equitable relief in addition to the compensatory damages was appropriate in that circumstance.

Justice Scalia: But the amount of back pay due, that factual matter would be decided by the jury, I guess, wouldn't it?

Mr. Kelly: The amount of...

Justice Scalia: And the level of reinstatement to which he was entitled, I would assume that's a factual matter.

That would be decided by the jury.

Mr. Kelly: I...

Justice Scalia: I don't know.

I mean, it just changes the scheme a whole lot, that's what I'm saying here, when you pour them all into one action.

Mr. Kelly: I... and I agree that it does change the scheme.

I understand that in at least most cases, in all of the cases that I've seen, the jury's determination as to discrimination and compensatory damages would determine the outcome of the equitable relief except for...

Chief Justice Rehnquist: Well, you don't have to read subsection (c) the way you're reading it.

It says, if a complaining party seeks compensatory or punitive damages under this section, any party may demand a jury trial.

You could read that as limiting the right to jury trial to the demand for compensatory damages.

Mr. Kelly: That's correct.

I was refer... I'm sorry, I was referring to 2000e-16(c), which is the Federal employee section of title VII, not the new compensatory damage remedy, and that provision has been determined by the court in Brown v. General Services administration to require exhaustion prior to...

Justice Ginsburg: But Mr. Kelly, I thought your point was that, to the extent that there are common fact questions like, was there discrimination, how long did it go on, if you have a combined legal and equitable claim, the jury goes first, and the jury's findings of fact become issue preclusive on the judge.

That was settled in Beacon Theaters and Dairy Queen decades ago by this Court.

Mr. Kelly: I believe that's correct, Your Honor.

Rebuttal of Barbara B. McDowell

Chief Justice Rehnquist: Thank you, Mr. Kelly.

Ms. McDowell, you have 2 minutes remaining.

Mr. McDowell: To respond to Justice Breyer's question...

Justice Breyer: No, no, you needn't.

I think I understand it.

The key are the words, this section.

This section refers to 1981, not 717.

Mr. McDowell: Yes.

It is the Government's...

Chief Justice Rehnquist: Okay.

Justice Breyer: You don't need to go further.

Justice O'Connor: You have 2 minutes.

Mr. McDowell: position that there is a jury trial if the case ripens into an action into district court.

It's our position that the jury in that sort of case would determine issues of liability as well as issues of compensatory damages, although equitable relief would continue to be awarded by the Court following the jury's decision.

In terms of the question about the historical practice of awarding compensatory damages at the administrative level, we don't have a count on the exact number of cases.

However, in fiscal 1997, $ 3.5 million worth of compensatory damages were awarded at the agency level.

Since often these awards are quite...

Justice Stevens: Agency level, do you mean EEOC, or the original...

Mr. McDowell: No, the agency level, the initial level.

Since often these rewards are really quite small, $ 500, $ 1,000, $ 2,000, that could be a large number of cases, but we don't have a count on that.

If there are no further questions from the Court...

Justice Ginsburg: Yes, I have one...

Mr. McDowell: Oh.

Justice Ginsburg: further, and that's again on the forfeiture, or waiver, whatever you call it.

It seems that if you are insisting that the employee ask for this before the agency, ask for it before the EEOC, instead of taking it out of a general demand for relief, then you're asking for an exactness in the administrative proceeding that 54(c) says, in court... it says, the court will give you the relief to which you're entitled even if you haven't asked specifically for it.

Mr. McDowell: Yes.

The 54(c) talks about relief that you have actually proven, and that's consistent with the EEOC's position here, that if you have proven compensatory damages in the administrative process, yes, you can recover them, but an agency and the EEOC shouldn't be forced to guess at what damages you may have suffered.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. McDowell.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Kolstad v. American Dental Association - Oral Argument

Fri, 09 Jan 2009 14:50:13 +0000

Case:

Kolstad v. American Dental Association

Media File:

98-208_19990301-argument.mp3

Related Transcript:

1998_98_208_argument.xml

Transcript:

Argument of Eric Schnapper

Chief Justice Rehnquist: We'll hear argument now in No. 98-208, Carole Kolstad v. the American Dental Association.

Mr. Schnapper.

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

The 1991 Civil Rights Act made several fundamental changes in the method of enforcing Title VII and the Americans with Disabilities Act.

Section 1981a(a) authorizes awards of punitive damages if punitive or compensatory damages are sought, and either party has a statutory right to trial by jury.

The determination of whether punitive damages should be awarded proceeds in two distinct stages.

First, Section 1981a establishes several statutory prerequisites which must be satisfied before a jury or, in the case of a bench trial, a judge, is authorized to consider an award of punitive damages.

Satisfaction of the statutory requirements only permits, but does not require, an award of such damages.

Justice O'Connor: Well, is it your position... and I take it that it is... that every case of intentional discrimination should at least go to the jury on the question of punitives?

Mr. Schnapper: That is not our position.

Our position is that there must be proof of either reckless indifference or malice.

And there are a number...

Justice O'Connor: Well, does proof of intentional discrimination suffice for a jury to find punitives?

Mr. Schnapper: Not necessarily.

There are a wide variety of circumstances under Title VII, as well as the ADA, in which one might have intentional discrimination, but not reckless disregard.

Because, for example...

Chief Justice Rehnquist: Reckless disregard of what?

Mr. Schnapper: Of the... of the rights... the federally protected rights of the plaintiff.

Chief Justice Rehnquist: And where do you get that out of the statute... that it should be reckless disregard of...

Mr. Schnapper: I'm sorry... reckless indifference.

I misspoke.

That is the statutory standard: reckless indifference

Chief Justice Rehnquist: But one ordinarily thinks that intentional is a higher level of... of mens rea than recklessness.

And so... but in... in this statute, you have to find intentional discrimination to find liability.

Mr. Schnapper: But there... there could be circumstances, as was true in the Hazen case, in which the... for example, the law was sufficiently unclear as to whether or not a particular act of discrimination, although technically intentional, was, nonetheless, illegal.

The Court noted in Hazen, for example, that there was a BFOQ exception under the ADEA, the same exception as this...

Chief Justice Rehnquist: So, it's kind of like qualified immunity in a...

Mr. Schnapper: Well, it... it's a little bit analogous.

And I think the standard is not as... as stringent as for qualified immunity.

But...

Justice Souter: But, Mr.... I'm sorry...

Mr. Schnapper: If... if you had a situation in which... the standard that we propose with regard to reckless indifference is that the defendant either knew or should reasonably have known that what it was doing was probably illegal.

Now, there are circumstances involving intentional discrimination where you couldn't say that.

Justice O'Connor: Well, do you think that, just in general, that Congress probably intended, as is normally the case, to make it more difficult to get... to be entitled to punitive damages than to gain compensatory damages, really?

Mr. Schnapper: The... the statutory standard for... for punitive damages in many Title VII cases will, as a practical matter, be satisfied by proof of intent, but not all.

The standard is different.

And... but I think we... we would acknowledge that...

Justice O'Connor: Well, you didn't answer my question, though.

Mr. Schnapper: I'm sorry.

Justice O'Connor: Which is, do you think Congress intended for it to be more difficult to get punitive damages than to get compensatory damages?

Chief Justice Rehnquist: .. .

Justice Scalia: I'm sorry to hear you pause.

I... I thought from your briefs that you said yes.

Mr. Schnapper: Well, I... I... I think the textual answer is yes.

I'm... I'm reflecting over the legislative history.

And it's... I can't...

Justice Scalia: Oh, you think Congress may have made a mistake?

Mr. Schnapper: No, no, no.

Justice Scalia: It ended up that way, but they really didn't...

Mr. Schnapper: No.

I'm... I'm... insofar as the... the intent of Congress is... is to be inferred from the language of the statute, the statute sets a different standard.

Justice Kennedy: Well, Mr. Schnapper...

Mr. Schnapper: If that's a question about... about whether it was debated, I think I purport it was not.

Justice Breyer: I see.

Justice Souter: Mr. Schnapper, help me on one thing.

In order to be found liable for an intentional violation, does the... does the defend... does it have to be shown that the defendant was aware of Title VII, or is it sufficient to show that the defendant discriminated, intentionally discriminated, said, I am going to prefer a woman because she is a woman?

Mr. Schnapper: It does not require any knowledge of the law for there to be...

Justice Souter: All right.

Doesn't the punitive damage standard require knowledge of the law?

It's indifference to the defendant's rights.

And I presume that means rights under the statute.

Mr. Schnapper: Yes, it would require either knowledge or... or, as the Court said, I think, in McLaughlin, recklessness in determining what the defendants knew their obligations were.

Chief Justice Rehnquist: Okay.

Justice Souter: So, the... so, the... the reference of the two standards are different.

With respect to the intentionality that is required for liability, all that has to be shown was that there was an intentional discrimination, period.

In order to get punitive damages, there has to be shown that there was either knowledge or indifference to the... the likelihood of a statutory violation.

And... and because you have to, in effect, prove this reference to the statute, the reference to the legal source of the rights, that is more difficult, and that's why it makes sense to say that the punitive damage standard required proof of something more; isn't that the key to it?

Mr. Schnapper: Yes.

Chief Justice Rehnquist: Well, then, if you're correct in that, Mr.... then it... it bears a remarkable resemblance to qualified immunity.

Mr. Schnapper: The... the... the difference, Your Honor, as we formulate the standard, is that the knowledge required here is that the action is probably illegal.

Under qualified immunity, there would have to be a clearly established right.

So, that's a... that's a higher...

Chief Justice Rehnquist: And you would charge... you would charge the jury to find whether or not something was probably illegal?

Mr. Schnapper: If... if, in a particular...

Chief Justice Rehnquist: I mean, you would have to, wouldn't you?

If that's the test, and it's for the jury to decide, you would have to say, You of the jury, would you find this was probably illegal?

Mr. Schnapper: Your Honor, if... if there was a question as to whether or not the action was probably illegal, our view is that that would be a question the judge would have to decide.

Justice Kennedy: But...

Justice Stevens: Is the statute not...

No, but you'd have to charge the jury as to what the defendant knew, whether he thought it was probably illegal...

Mr. Schnapper: The defendant's knowledge or the defendant's lack of care in ascertaining the law would be jury questions.

Justice Souter: Yes.

Justice Kennedy: What...

Mr. Schnapper: But the question of whether or not... what the state of the law in fact was...

Justice Scalia: The jury... the jury...

What about the malice standard?

There... there are two tests.

One is... one is reckless indifference; the other one is malice.

Does malice mean certain knowledge that it's illegal?

Mr. Schnapper: No.

I... I had not yet come to that separate clause.

Our view is that malice can be satisfied by proof of one of three things: ill will, an intent to injure, or an attempt to violate the statute

Those are the... those are the concept of evil motive that are in this Court's opinion in Smith v. Wade.

Justice Scalia: You mean usually... I mean, my goodness... you mean usually there's... there's no intent to injure when you... when you discriminate on this basis?

I would think that exists in most of the cases, doesn't it?

Mr. Schnapper: I think a desire that the victim be injured is not necessarily present in... in a case like this, where the defendant has been found to have preferred to hire... to promote Mr. Spangler because he's a man.

That doesn't necessarily mean they wanted the... the plaintiff to... to... to suffer.

Justice Ginsburg: Mr. Schnapper, you gave one such example.

You said that the... the compensatory damages... now, the jury doesn't have to find probably, they have to find there is a violation.

Then, for punitive, awareness of the legal standard.

And you gave as an example of intentional discrimination... treat a man differently than a woman, the BFOQ defense.

Are there other instances in which there would be intentional discrimination; therefore, compensatory damages would be a must, not a,and yet, not reckless indifference to the plaintiff's federally protected right... that's the statutory phrase?

Mr. Schnapper: Yes, Your Honor.

We've set out in our briefs some 15 different kinds of circumstances in which that might arise, simply on the face of the statute, questions about whether the defendant, for example, under Walters, was covered by the statute, questions about other circumstances in which, for example, religion/ conscience decisions are legal under the statute for certain defendants.

And there are, in addition to the specific statutory issues that we noted there, there continue to be issues that arise in the lower courts as to whether particular practices which are intentionally discriminatory are nonetheless legal under Title VII.

What...

Justice Kennedy: Well, I take it what Congress was trying to do was to tell us that there are degrees of culpability insofar as the defendants are concerned.

Is it relevant to say that a corporation or an association, such as you have here, a corporate employer, has a... has an admirable employment policy and makes... has very, very clear guidelines, you have one employer in a management position who departs, is it relevant to tell the jury that the employer might not be chargeable with those punitive damages if the jury finds certain criteria?

Mr. Schnapper: Yes.

But let me... let me explain why I say yes to that with reference to the two distinct stages of determination on punitive damages.

The circumstances that you describe would not be relevant to the statutory prerequisite, but they would be relevant to the discretion the jury has to exercise in deciding whether to award punitive damages.

Justice Kennedy: How does the... how does the jury... how is the jury instructed?

Mr. Schnapper: Well, at this point in time, with regard to the second phase, the... the practices vary quite widely as to whether juries are in fact given much guidance as to how to exercise that discretion.

But certainly it would be appropriate in the case that you describe to advise the jury that that would be a factor the jury could consider, and it would militate against punitive damages.

Justice Scalia: Mr. Schnapper, what about... what about attribution?

Normally, in... in tort law, a... a higher... what should I say... a higher agency principle is applied for punitive damages than for compensatory damages.

So that if... I mean, an agent of the company can render the company liable for compensatory damages, but not for... not for punitive.

Is that the... is that also true here?

Mr. Schnapper: We don't believe so.

But I should start by saying that's not an issue in this case.

In this case, the culpable officials included the executive director of the defendant, the highest ranking official they had.

Justice Scalia: Well... well...

He's a proxy for the company...

Well, it... it's relevant to the extent that... whose... whose mental condition you have to look to... Wheat, who is a lower one, or... who was the higher one, I forgot his name?

Mr. Schnapper: Allen.

Justice Scalia: Allen.

Yeah, Allen was the highest, and he was the one that... that did the... the non-promotion.

And if we look only to Allen, we... you would instruct the jury differently as to whose mental... whose mental state was relevant.

Mr. Schnapper: I think, if... if one were to look only at agency principles, even... even Wheat would be high enough.

But... but if I could respond in some more detail to that.

Justice Ginsburg: Was... Wheat was the head of the Washington office?

Mr. Schnapper: Yes.

Justice Ginsburg: And Allen was the executive director of the whole operation?

Mr. Schnapper: That's exactly right.

I... I think that mechanically carrying over here the principles of agency law with regard to punitive damages would not be appropriate for... for two distinct reasons.

And I note, to begin with, that this Court indicated in Faragher and Ellerth that... that these kinds of issues had to be determined both by looking at agency law and by looking at the purposes and principles underlying Title VII.

There are two reasons that I... I suggest that... that one couldn't mechanically use agency principles.

The first one is that one of the central purposes that prompted Congress to adopt punitive damages was to assure more effective monetary relief to deter and punish discrimination in the cases of sexual harassment.

If one were to apply mechanically provisions of the restatement of torts to sexual harassment, it would... it would be a rare case, if ever, that you could get...

Justice Scalia: Well, how do I know that that was the reason?

Mr. Schnapper: Because...

Justice Scalia: I mean, all I see is the text of the statute.

And from the text of the statute, it says punitive damages.

I would apply normal punitive damages agency principles.

And... and to tie into Justice Kennedy's question, I would think that a company who has a policy against this... this kind of activity, and if one of its lower employees, even... even an officer such as Wheat... violates that policy, I would think, under normal agency principles, you would not punish the company.

If you wanted to sue... if you wanted to sue Wheat individually, that's a different question.

But, normally, the... the company has to be a bad actor.

And here, the company has this policy, and it's... it's Wheat who violated it.

Mr. Schnapper: Let me... let me take another try at answering this.

With regard to the first part of your question, How would you know that, reading the statute?

The stat... statute has statements of... of purpose and findings, which both refer to the need for additional remedies about sexual harassment.

With regard... a bit of an aside to Wheat... it's not under prevailing law, at least in the lower courts... it's not possible to sue individuals for compensatory and punitive damages.

It's the employer or nobody.

The... in addition to...

Justice Stevens: Mr. Schnapper, may I just interject this thought?

Although references to legislative history won't persuade Justice Scalia, some of the rest of us are interested in what you might say about it.

Unidentified Justice: [Laughter]

Mr. Schnapper: Well, in this case, I would hope I could persuade even Justice Scalia, because this is in fact in the text of the statute.

It's not in Section 1981a; it is in the... in the... in the Public Law that was adopted by Congress.

In... in addition to that, the... I'd note that the... the statute, on its face...

Unidentified Justice: It's not in your appendix A.

Mr. Schnapper: It's... it's in the prologue of the... of the statute?

Justice Scalia: I mean, I don't see it in any of the... in your statutory appendix.

Mr. Schnapper: I... I believe that's right.

It... it's been the Public Law...

Justice Scalia: I'll be happy to look at the Public Law.

Mr. Schnapper: Thank you, Your Honor.

I'd like to reserve...

Justice O'Connor: May I ask... now, the position of the en banc dissenters here supported the notion that it must be the company or the Dental Association itself that acted recklessly or with malice here, was it not?

I mean, that was the position taken, as I read it, by the en banc dissenters.

Mr. Schnapper: I think that's... I think that's probably the right... correct reading.

Our view is that that issue would not go to the statutory prerequisite, it would only go to a guideline for the jury.

Thank you.

Argument of Seth P. Waxman

Chief Justice Rehnquist: Thank you, Mr. Schnapper.

General Waxman, we'll hear from you.

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

This case presents to the Court, in the context of the Disabilities Act and Title VII, very much the same questions that this Court considered under the ADEA in TWA v. Thurston and Hazen Paper Company.

This is a case of statutory interpretation.

And the statute provides explicitly that in cases of intentional employment discrimination under the Disabilities Act or Title VII, punitive damages may be awarded.

Chief Justice Rehnquist: Well, Mr.... General Waxman, that's quite true.

But, obviously, looking at the divided opinion of the Court of Appeals, there are several different possible... possible ways of interpreting that.

And why isn't one possible canon of construction that punitive damages are not favorites of the law?

This Court has held a couple of times that there are constitutional limitations on them.

So, when there is reasonable doubt as to whether they're available or not, the... the Court's answer should be they're not available.

Mr. Waxman: Mr. Chief Justice, it is entirely appropriate for this Court, and other courts, to proceed on the assumption that punitive damages are generally not favored in the law, and that, as this Court demonstrated in BMW v. Gore, there are constitutional limitations on the amount of punitive damages that are awarded.

But in this case, as under the ADEA that this Court considered in TWA and Hazen, Congress has made that determination, and it has explicitly stated what standard the plaintiff must prove before the jury may consider the independent question of whether punitive damages can be considered.

And I think you were quite right, Mr. Chief Justice... I think it was you... to observe that as... as Judge Randolph did in his concurring decision below, that traditionally, at law, reckless indifference, or reckless disregard, is viewed essentially as a lesser included offense of knowledge.

The reason why there isn't a collapse of what was called the two tiers of liability here, as there was... as this Court found there was not under the ADEA, is that the two tests look at two different things.

In order to establish liability for intentional violation, you look at the volition of the defendant.

That is, did the defendant treat someone differently on the... deliberately... on the basis of a prohibited characteristic?

The further question that the jury has to consider in evaluating whether to exercise its discretionary moral judgment to consider punitive damages is the defendant's consciousness of wrongdoing.

Justice O'Connor: Should it be the consciousness of the company itself or, in this case, the Association, or some lesser employee?

Mr. Waxman: Well, clearly, the defendant in the case is the employer.

And although this Court has never directly confronted the issue, the lower courts are unanimous that individual employees or supervisors may not be sued under Title VII and, I think presumably, analogously, under the Disabilities Act.

So, in a case, which I... I agree with Mr. Schnapper, is not really presented here because the two officials that...

Justice O'Connor: Well, I'm asking you for a principle.

Mr. Waxman: Well...

Justice O'Connor: Because I want to keep that in mind as we decide this case.

And what is your position on that?

Mr. Waxman: I think our position on it, Justice O'Connor... let me first say that, following this Court's decisions in Faragher and Ellerth last spring, there has already developed a split in the circuits, between the Fifth and the 11th Circuit, in cases, both coincidentally involving Wal-Mart, over whether the paradigm that this Court created in Faragher and Ellerth should be directly applied to punitive damages, or whether you should do what the... whether you should start from the place this Court began in those cases.

Which is to say, we know we have to look at traditional agency principles and we have to look at the purposes of Title VII.

Now, Justice Scalia was quite right that traditional agency principles apply differently in the case of punitive damages than they do in the case of compensatory damages.

In Faragher and Ellerth, this Court, I would say, expressed considerable doubt over whether somebody who was engaging in... an employee or a supervisor engaging in sexual harassment that did not rise to the level of a tangible employment action could ever be said to be acting within the scope of employment.

And I think that's correct.

But the Court found that a comp... an employer might, nonetheless, be liable because one could say that, with reference to traditional agency principles, the supervisor was aided in the agency relationship.

Now, at common law... and this is reflected in Restatement... the Restatement, Second, of Torts, 909, and the Restatement of Agency, 217(c), which are identical: An employer is vicariously liable for punitive damages only if the employee acted in a managerial capacity within the scope of employment

Now, the... the EEOC, prior to Faragher and Ellerth... and I don't think this Court's opinion changes it any... has taken the position that if a supervisor, vested with the company's authority to hire or fire, fires somebody in an act of intentional discrimination, the company... the jury may consider whether or not punitive damages may be awarded.

Chief Justice Rehnquist: But if the EEOC considers something like that, I mean, it's not on the basis of running jury trials, is it?

Mr. Waxman: Well, no.

But it... it is... the EEOC... these are the instructions that it requests from the jury, and this... this is the position...

Chief Justice Rehnquist: Well, why... why does the EEOC have any business laying down jury instructions?

Mr. Waxman: The EEOC, Your Honor, under Title VII, is a plaint... is a plaintiff in very many of these cases.

Chief Justice Rehnquist: So, you're talking about not the EEOC as an administrative body, but when it goes to court?

Mr. Waxman: Oh, sure.

The EEOC has no authority under the statute to dictate jury instructions.

It does have general enforcement and interpretive authority with respect to Title VII.

The question was, what position has the United States taken?

And the United States is in court most frequently on this in the posture of the EEOC as a plaintiff.

Justice O'Connor: Well, have you answered my question yet?

Mr. Waxman: I haven't fin...

Justice O'Connor: Because I'm not sure you have.

Justice Scalia: You're winding up, though.

Unidentified Justice: [Laughter]

Mr. Waxman: I would... our position, Justice O'Connor, is that in cases resulting in tangible employment consequences, as in this case, the EEOC...

Justice O'Connor: By that, you mean not hiring?

Mr. Waxman: Not fired... not fired, not hired, demoted, promoted.

The way this Court used those terms in Faragher and Ellerth.

In those cases...

Justice O'Connor: Well, that's 90 percent of the cases, but go ahead.

Mr. Waxman: In those cases, we believe that the... the principle expressed in the Restatement, that if the employee acted in a managerial capacity and was within the scope of his employment, the company is liable for punitive damages in the jury's discretion.

And we have...

Justice O'Connor: Is that the same as the traditional agency principles for when you subject a company to punitive damages liability?

Mr. Waxman: That... that... what I've told you...

Justice O'Connor: Or is some variation of that?

Mr. Waxman: Well, what I've... the articulation I've given you is verbatim out of the Restatement of Torts.

We have a... maybe it's an interpretation of that... we've interpretedto include regional supervisors and store managers who have authority to fire, where there is a tangible employment action.

In the area of sexual harassment, where there may not be a tangible employment relation... consequence, as in the case... as this Court considered in Faragher and Ellerth... as a result of Faragher and Ellerth, the EEOC is in fact at this point evaluating its position and trying to come to a conclusion as to the position that it will advocate in those cases, which actually have...

Justice Scalia: General Waxman, could...

Mr. Waxman: almost never arisen.

Justice Ginsburg: Can I ask you, before you sit down, what charge would you request or what charge would you say fits with your interpretation of the law?

How should a jury in this case, for example, be charged on the issue of punitive damages?

Mr. Waxman: Well, I think that the jury ought to be charged in the language of the statute that Congress set out.

That is, the jury ought to be told that before you can award punitive damages, you must... compensatory damages... you must find that the defendant intentionally discriminated.

That is, treated this person...

Justice Kennedy: Suppose you have a case in which the employer tells the female employee, you're... you're carrying a child, you're going to be a mother soon, we think this position is... is just going to put too much stress on you, because women have special bonds with the child.

A violation of the law, in... insensitive, and yet a person who acts in good faith.

Can the jury consider that...

Mr. Waxman: Well, that...

Justice Kennedy: and say, well, this man was wrong under the law, but he acted in, really, her best interest, he wasn't malice... malicious in the usual sense of that term; could the jury...

Mr. Waxman: Well, if the... if the... if...

Justice Kennedy: consider that among themselves in their own deliberations?

Mr. Waxman: The answer is certainly yes.

I would say further...

Justice Kennedy: Okay.

Then can... can you instruct the jury that they could consider that?

Mr. Waxman: Well, with respect to punitive damages...

Justice Ginsburg: Yeah, if you could complete the... you didn't get to finish what your instruction would be.

Justice Breyer: So...

Mr. Waxman: No.

I think the instruction would be, and all the pattern instructions, not just with respect to this statute, but with respect to liability under the civil rights statutes generally, under Smith v. Wade, instruct the jury... and may I just finish this sentence... instruct the jury in the language of the statute.

Which is that you may consider but are not required to impose punitive damages if you find that the defendant acted with malice or with reckless indifference to the employee's federally protected rights.

Thank you.

Argument of Raymond C. Fay

Chief Justice Rehnquist: Thank you, General Waxman.

We'll hear from you, Mr. Fay.

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

The fundamental difference in perspective between the two sides in this case is that the Petitioner's focus, exclusive focus, on the termignores the fundamental starting point: that this is a statute about punitive damages

And when Congress uses the termor other terms derived from common law in a statute, those terms, absent a contrary indication by Congress, have the same meaning as they do at the common law.

And at common law, there were three hallmarks of punitive damages.

First, the focus is on the nature of the conduct, not purely the mental state, as the Petitioner says.

Secondly, the conduct is outrageous or egregious.

And, thirdly, the purpose is to punish or... or to deter.

It's egregious conduct.

Justice Stevens: May... may I just... I'm just not quite sure I followed your argument.

The... the common law term that we are comparing this to is,or is it the common law meaning of the wordsand?

Mr. Fay: t's both, Justice Stevens.

Because this is a statute that says punitive damages may be awarded under a particular standard.

And my point is that if we focus solely on the wordor,or the two together, we're losing sight of the fact that Congress was imposing punitive damages for a particular action here, and that... and there is no indication the Congress was meaning anything other than the traditional meaning of punitive damages...

Justice Ginsburg: So, your answer would be different, and... and you would... would you concede that Plaintiff is correct, if instead of sayingit had been called?

nd the same thing, a jury may award liquidated damages if it finds the defendant acted with reckless indifference to the federally protected rights of the aggrieved individual?

Mr. Fay: That may... very well may be a... a different signal, Your Honor.

Because, for example, in the cases that were brought up before, the ADEA cases, the reference there, liquidated damages for a willful violation, was to a statute... that is, the Fair Labor Standards Act... whereas the reference here is to punitive damages without embellishment, meaning we look to the common law.

Justice Ginsburg: Well, I'm... I'm proposing liquidated damages without embell... embellishment, or, say, if it had said statutory damages.

Mr. Fay: And... and my answer is that I agree that that may very well have a different meaning.

Because punitive damages has a common law root, whereas liquidated damages does not.

Justice Ginsburg: How about civil penalties?

Mr. Fay: Civil penalties come in different... different shapes.

There is a rich body of law about what types of civil penalties there may be.

Just using the term,I think...

Justice Stevens: Mr. Fay... Mr Fay, I'm... you said the... the language, it's reckless indifference to the federally protected rights.

The reckless indifference has a definite frame of reference in the statute.

Mr. Fay: It certainly does.

And that reference, first of all, is in the common law.

And this Court, on many occasions... a case in point in Molzof v. United States... States... and Smith v. Wade, which is cited in the legislative history here, and from which the words were borrowed to put... to put those words in this statute.

Reckless indifference is the equivalent of malice.

It is the equivalence in the sense that, again, we look to the conduct.

Because reckless indifference to federally protected rights means acting, or failing to act, in putting a person at substantial risk of serious harm.

It's the consequences and the conduct that are focused...

Justice Scalia: No, but malice... malice is conduct?

Mr. Fay: Well, when... again, the statute is framed this way.

It says: the discriminatory practices are committed with malice or reckless indifference

The reference is always back to the discriminatory practice or the conduct.

Justice Souter: Well, the reference is to the statute... to the... to the rights.

The statute uses the word.

Mr. Fay: t also tells us, Justice Souter, that it is the... it is the discriminatory practice that is done with respect to those rights.

So, we look to both the mental state and the conduct.

Justice Souter: And the mental state looks to rights, not to the conduct or consciousness of the conduct, or even consciousness of the tangible consequences of the conduct.

Mr. Fay: It does both, Your Honor.

And what... what our point is...

Justice Souter: Well, at the very least, then, you agree that it does look to consciousness or... or indifference to the existence of the sources of the legal rights?

Mr. Fay: That's correct.

Justice Stevens: Okay.

Mr. Fay: And what I'm saying is you can't divorce that from the conduct that's at issue.

Otherwise what happens is you look at the mental state without regard to whether the underlying discriminatory conduct was serious enough to impose punitive damages, or even whether the underlying discriminatory conduct was a violation at all.

Justice Scalia: Why isn't it up to the jury?

I mean, it's not as though the seriousness of it will... will... will not come into the case.

What we're talking about here is what... what this language permits the factfinder to determine.

And it'll usually be a jury, I assume.

What... what is the problem about letting the jury take into account the egregiousness issue?

I suppose they may.

Mr. Fay: They certainly would take it into account.

But the... but the test that's advocated by the Petitioner would be to usurp the traditional role of the court in determining whether there is evidence of this higher standard of culpability in the statute to impose punitive damages.

The Petitioner would say virtually all cases of intentional discrimination go to the jury.

Justice Breyer: Well, what...

I take it...

Isn't that what the statute says?

I mean, that... that's the... the way I've read the statute... and I'd like you to... it's the same as what Justice Souter has been asking, and I think Justice Stevens.

Mr. Fay: It is.

Justice Breyer: What it says specifically is the first question in these cases is, was there intentional discrimination, say, on the ground of gender?

And, normally, they're defended on the ground that it was a pretext, that it wasn't a pretext.

I fired her because she was always late.

No, that's a pretext.

You fired her because she was a woman.

So, you have to establish the facts.

Once the facts are established, and if the plain... the plaintiff wins on the facts, that means that the person has intentionally discriminated on the ground of gender.

So, then, there'd be a second question: Did that defendant know that intentional discrimination against a woman is illegal

And if the answer to that question is yes, he did know it's illegal, that's the end of this case; you can assess punitives.

Now, there's a third very rare situation, where the answer to the second question is no, he didn't know; he thought it was legal.

I don't know that there's a human being in the United States who thinks it's legal, intentionally, to discriminate against women or on grounds of race.

But if we find that human being, the next question would be... the next question would be: should he have known... not just should he have known, but should he really, really have known

That's reckless disregard.

Okay.

Now, it seems to me that's what the statute says.

And even though it means punitives now could be assessed pretty regularly with intentional discrimination, it might have meant there'd be far fewer cases at the time this was enacted, when people didn't know what the law is.

But that's what it seems to say.

And if that's what it seems to say, what's the answer... what's the argument that we should do something other than what it says?

Mr. Fay: I... I think that your second question, Justice Breyer, does not take into account what types of damages these are.

These are punitive damages.

These are not damages that are assessed simply on a separate inquiry about what someone thinks.

They are... they are based on a common law tradition of a more difficult standard of proof, and they are also based on the tying together of the discriminatory practice with the required mental state.

Justice Ginsburg: Mr. Fay, do I understand that you are riding... putting your heaviest weight on the label?

hat is, you answered me that if the statute had said liquidated damages or statutory damages, then you would have no problem with Justice Breyer, what he said is the proper; is that right?

Mr. Fay: The second part of my answer to the... to your previous question, Your Honor, was that at common law, reckless indifference was, as stated in footnote 10 of the Smith v. Wade opinion, the equivalent of malice.

Justice Ginsburg: Oh, so, then, the label doesn't matter, and you'd say the same thing, even if it saidorand not?

o, it's not...

Mr. Fay: No.

I... I stand by my previous answer, that that tells us what the statutory reference point is.

It is not liquidated damages, as in the ADEA, where the sole reference point...

Justice Scalia: So, suppose the label were.

Justice Ginsburg: hen, is Justice Breyer's description of how the case would unfold correct?

Mr. Fay: It would be very much closer to Justice Breyer's description.

Justice Souter: Well, you're saying, I guess, then, that there's got to be deliberate indifference with respect to the... to the... to the right, as such, but there's got to be some egregiousness in addition to that.

Does that... are you saying there's got to be an egregious deliberate indifference?

Mr. Fay: I'm saying that it... it has to be, as part of it, in this statutory framework.

Justice Souter: Well, if that's the case, then why doesn't deliberate... egregious, deliberate indifference just collapse into malice?

Because malice, I suppose, under this statute, the... the paradigm example of malice... would in fact be consciousness of the legal prohibition and intentional discrimination in the face of that consciousness.

Mr. Fay: That's correct.

Justice Souter: And I... I don't know quite how I would draw a line between malice, in that sense of consciousness, and some kind of egregious degree of... of indifference.

Mr. Fay: Well...

Justice Souter: I don't know how... I don't know how a jury would ever tell them apart.

Mr. Fay: The... in terms of the classical definitions of malice, which is actual evil motive or intent to injure, and...

Justice Souter: No, but you've just given... I don't want to put words in your mouth if you don't want to take them... but I thought you had... had agreed with me that malice here probably means a... an actual knowledge of the legal prohibition.

Mr. Fay: Oh, it may...

Justice O'Connor: You... you don't agree with me on that?

Mr. Fay: malice may have a actual intent which is irrespective of the knowledge of the requirements of the law.

Justice Breyer: Malice is an intent to be... to be nasty, to hurt.

Mr. Fay: Yes.

Exactly.

Justice O'Connor: You...

Justice Scalia: Gee, an actual intent to be nasty or to hurt may... may well disprove the... the sexual discrimination charge.

I mean, it would usually be the defendant's defense.

He'd come in and say, no, I didn't discriminate against this person because she... she was a woman.

Justice Breyer: I just didn't like her.

Justice Scalia: I really hated her.

Justice Stevens: And I...

Mr. Fay: And that's...

Justice Scalia: How could that be malice?

Mr. Fay: And that's precisely why, Justice Scalia...

Justice Scalia: So, I think malice may well mean... malice may well mean actual knowledge that it's against the law, and nothing but that.

Mr. Fay: Well...

Justice Scalia: Because you have to read it: malice or deliberate indifference

Deliberate indifference is always a lesser state of whatever malice is.

Mr. Fay: That's true.

But the... but the reference point in the statute is to the discriminatory practice.

So, if it's not a discriminatory practice that's committed with malice... that is, to discriminate because the applicant was a woman, instead of personal animus... then it wouldn't be discriminatory to begin with.

You have to tie the two together by the structure of the statute.

Justice Scalia: Exactly.

But you don't have to know that it's unlawful to be in violation of the statute.

Mr. Fay: I agree... I agree with that.

Justice Scalia: So, actual knowledge of unlawfulness is malice; you agree with that?

Mr. Fay: I... I don't think you need actual knowledge of unlawfulness to get to malice.

I think you need to commit the... the intentional act, which may or may not relate to a consciousness of what the statute requires, with an evil motive or intent to injure that individual.

And whether you even knew anything about the requirements of the Act, I don't think bears on that aspect of it.

Justice Scalia: Again, my problem isn't even an intention to injure.

The individual negates, it seems to me, the... the sex discrimination charge.

Mr. Fay: If it's unrelated to the sex discrimination.

Chief Justice Rehnquist: Well, but isn't discriminating against someone because of sex... isn't that an intent... intent to injure them?

You're denying them, say, a job promotion.

And you're denying them because of... because of their sex.

Mr. Fay: And that is... that is injurious.

And in a case in which the conduct is serious enough, then it should go to the jury on the question of punitive damages.

Chief Justice Rehnquist: But how... you say the conduct is serious enough.

But what more do we need?

Mr. Fay: The... the classic example of... of the difference between the two... and Congress' intending to have only the more serious cases go to the jury... is that this Court, in McDonnell Douglas v. Green, and follow-up cases, has established a paradigm of proof for intentional discrimination in which there may be very little known about what the employer thinks; that pretext alone may suffice, by judicial presumptions and inferences, to get to the jury on the question of intentional discrimination.

Justice Stevens: You don't suggest, Mr. Fay, that every time there's an intent to discriminate, there's also the intent to harm the individual?

Supposing the police force decides they think, in a particular neighborhood, they'd like to promote an African American officer, so white officers didn't get the job.

There's no intent to harm the white person, they just made perhaps an impermissible decision.

Mr. Fay: And that would also be... be true in the pretext cases.

Justice Scalia: Sure.

Mr. Fay: It... it is classified as intentional discrimination, but it certainly does not carry with it any reckless indifference to their rights or malicious intent.

Justice Stevens: Why?

Why not?

Justice Breyer: Why not, the pretext was a pretext?

Mr. Fay: Well...

Justice Breyer: The pretext was a pretext.

There's a finding that the... the person...

Mr. Fay: Because a person could be...

Justice Breyer: on the facts, discriminated intentionally.

Mr. Fay: Well, for example, an employer may be misguided in thinking that they need to foster affirmative action, when affirmative action might result...

Justice Breyer: If... if in fact the employer thinks that if I'm doing this intentionally, I don't know if it's illegal, I agree that then you would have, on I think what I'm taking is the opposite theory from yours, as I said, that if the employer believes that intentional discrimination is not unlawful, then punitives would not be assessable unless he should have known that it was unlawful.

Justice Scalia: I agree with that.

Justice Breyer: So, maybe we don't agree.

Can I ask you one other question?

Which is, why... why, if the statute is... I think is... why should we fight so hard to resist eligibility for punitives in a statute that has two other checks?

One is the check that the jury might not assess the punitive, but, more importantly, is the unusual check that the punitives are rather limited in amount?

I think it's like $ 300,000, or $ 30,000, or $ 50,000, depending on the firm.

Am I right about that?

Mr. Fay: That's correct.

The total cap is $ 300,000 for the largest employers.

Justice Breyer: And so... so, given the cap that's in the statute, why do we think that Congress would not have wanted them widely assessable?

Mr. Fay: One answer I think is that there were, as this Court is aware, many, many compromises in reaching this... this Act the second time around.

And the caps and the punitive damages and the pun... and the compensatory damages, at times, ran on different tracks.

So, in a sense, the question of... of what is the standard for punitive damages was decided apart from the very political compromise as to the caps.

And the... the stigma and the seriousness of punitive damages, I would submit, should be decided apart from what the caps are, which might be amended tomorrow.

Justice Kennedy: I... I just want to make it clear what you're... do... do you agree that every time the employer knows, or should have known, that his official... or its official actions is a violation of the law and the employer then proceeds to take that action in any event, that there is malice or reckless disregard?

Mr. Fay: No.

Justice Kennedy: All right.

What... what are the instances in which there is no malice or reckless disregard?

Mr. Fay: If... the instances are in which there is no risk of serious physical, psychological or, in the rare instance, economic, harm to the individual.

And that analysis has to be done, in our view, in the first instance, by the district judge.

Justice Kennedy: Was that true in this case?

Mr. Fay: It was certainly true in this case.

The judge decided that there was no evidence to satisfy the statute standard.

And the district court's comments were... were based on the fact that the majority... almost all of the evidence in this case was based on pre-selection and pretext.

Justice Kennedy: But wasn't... wasn't the woman, in her... in her own mind and in her own psyche, injured, disturbed, et cetera, et cetera, et cetera?

Mr. Fay: No.

She did not claim any type of compensatory damages for pain and suffering or emotional distress and the like.

Justice Kennedy: If she had, the result would have been different?

Mr. Fay: If she...

Justice Kennedy: If she said, you know, I really knew I was discriminated against for being a woman... woman, and it... it hurt me very, very badly, it upset me, et cetera, et cetera?

Mr. Fay: If there had been inter... first of all, that would have qualified for... for compensatory damages under the statute.

And that's one of the big changes that was made in this law.

Secondly, if the evidence had shown that there was interaction, to show that the... the employer was punishing her or treating her poorly because she was having that reaction, that would be the type of case that would go to the jury; yes, Your Honor.

Justice Kennedy: So... so, you capture this by instructing the jury in terms of egregious behavior?

Mr. Fay: I don't think you need to capture it by instructing the jury of that, because it's up to the judge to make the threshold determination.

And then it would go to the jury on instructions which may...

Justice Kennedy: Well, then... then we capture it by putting the law of this Court, that it has to be egregious behavior?

Mr. Fay: Because that's what's required at the common law.

Justice Ginsburg: And that all comes from the label,because the common law wasn't that way for liquidated or statutory?

Mr. Fay: It's more than from the label,Your Honor.

Because, for example, if Congress wanted to modify the meaning of punitive damages, it could have done that, as, for example, it did with compensatory damages.

It said you get compensatory damages here, but then it says certain things don't count as...

Justice Scalia: Why did it say malice or deliberate indifference, then, if it wasn't... if it wasn't changing what... what punitive damages were at the common law?

Why didn't they just say the jury may award punitive damages, period?

Mr. Fay: Because it was using as its reference point the case... this Court's decision in Smith v. Wade, in which malice and reckless indifference were defined as standards for punitive damages under the common law.

And it... it, almost word for word, carried those words from the opinion into the statute.

But this Court's decision in Smith v. Wade emphasizes that outrageous conduct is required to meet those standards of malice or reckless indifference.

And... and the difference between our view and the Petitioner's is you don't focus simply on the state of mind; you have to focus on the discriminatory conduct.

And it has to be serious enough to impose...

Justice Stevens: Let me just be sure about one thing.

Your view is that this statute adopts the same standard that the majority adopted in Smith against Wade?

Mr. Fay: I... yes, I think that its common law roots are the same, Your Honor.

Justice Souter: Did Smith and... did Smith and Wade refer to indifference to rights?

Justice Stevens: Yes, it says callous indifference to the federally protected rights of others.

It's the same language.

Mr. Fay: That... those were the very words...

Justice Stevens: Yeah.

Mr. Fay: from Smith v. Wade that were incorporated here.

The... the main difference, of course, is that this was a decision of this Court explicating the common law, whereas Congress then embodied that into a statute.

And the first question is: When Congress used those words in the statute, did it mean to alter the common law

There's a suggestion in the government's brief, and a footnote, that it did.

There's nothing in the legislative history that shows that Congress intended to alter the common law in incorporating these words.

There's no reference as there was, for example, that we were trying to mimic...

Justice Stevens: Let me go one step further with you, to be sure I... there was a very sharp debate in Smith against Wade as to exactly what the common law did mean.

And the majority took one view and the dissenters very persuasively argued the other view.

Unidentified Justice: [Laughter]

Justice Stevens: But your view is that the majority view is the one that we should follow?

Mr. Fay: That's... that's the rule which explicates the common law and was carried forward in this statute.

Justice Scalia: We usually do that, don't we?

Unidentified Justice: [Laughter]

Mr. Fay: Yes, Your Honor.

Justice Ginsburg: Will you also clarify whether... at one point you said that malice is a synonym for reckless indifference to the federally protected rights of the aggrieved individual, and at another point you seem to suggest that those two terms had discrete meanings.

So, which is it?

Does malice mean something different than reckless indifference to the federally protected rights?

Mr. Fay: I... certainly malice implicates the actual intent, and recklessness implicates more than negligence but less than the actual intent, in terms of looking at the mental state.

What I was referring to was the passage in Smith v. Wade, in footnote 10, at 461 U.S., on page 43, and in the text, which says that reckless indifference implicates behavior that is so bad that it becomes the equivalent of malicious behavior.

That's what I was referring to in that context.

That is, in terms of the conduct.

Justice Ginsburg: So, but let's take these words written into this statute.

It says.

nd then it says

"or reckless indifference to the federally protected rights. "

What you read suggests that there's no difference; that reckless indifference, when it's bad enough, becomes malice.

But the statute seems to have two discrete categories.

One is malice.

The other reckless indifference to federally protected rights.

Mr. Fay: And my point is... is that the reckless indifference is not so radically different from the malice standard that it becomes a statutory standard whereby all cases of intentional discrimination would go to the jury.

And...

Justice Ginsburg: Well, we've already established that there are some cases, like good faith but wrong judgment, about the exceptions under the law, the BFOQ, when you're allowed to make a religious preference.

Mr. Fay: And our position on that, Your Honor, frankly, is that it's better not to establish any type of classes of cases that would be exempt from punitive damages.

Because as soon as someone says, well, the BFOQ case won't go to the jury, someone else will come back and say, well, that BFOQ really was not invoked in good faith; that was a sham; it was concocted after the fact.

And if it's egregious enough, why shouldn't that case go to... to the jury on punitive damages?

So, I don't think there should be any... any...

Justice Scalia: Well, what egregious... I mean, what do you mean by... by an... an egregious act?

This Act only covers firing.

It doesn't involve murder or torture or anything else.

How can you... how can you have a really egregious firing?

Unidentified Justice: [Laughter]

Justice Scalia: Unless... unless it's the motive.

Unless it's the motive, which... which you assert is not the point.

Mr. Fay: If you look at it in terms of... of the risk of harm that someone is put to, it... it... there can be aggravating circumstances, where someone is put into a horrible mental state because of the actions that took place with the firing.

Like I say, it's rare that it's going to happen in the economic context, but perhaps an...

Justice O'Connor: So, if...

Justice Ginsburg: But you just said it's the conduct, it's what the defendant does, not the... I mean, punitive damage is not going to turn on whether the plaintiff is thin-skinned, is it?

Mr. Fay: In... earlier, I answered a question, saying that the interaction between the plaintiff and the defendant might make... might show that the defendant's behavior is more serious.

Justice Scalia: I have it: Firing on Christmas Eve

That would do it, wouldn't it?

Unidentified Justice: [Laughter]

Justice Scalia: That is really...

Mr. Fay: Timing has been an issue in the case law, at... that is cited as one of the factors.

Justice Breyer: Well, why... why isn't intentional... intentional discrimination... you have to assume the facts show it... we intentionally dismissed someone from her... her job on the basis, let's say, of gender, because she's a woman, or of race, and I... the employer does it intentionally, for that reason, knowing that it's unlawful under the law of the United States; why isn't that egregious?

Mr. Fay: It may... it very well may be.

Justice Breyer: Just in and of itself?

That, intentional discrimination on the grounds of race, knowing that that's illegal, no BFOQ things, et cetera.

I mean, that's it.

Is that, in your opinion, egregious and goes to the jury?

Mr. Fay: It very well could be.

Because, in that case, the... the Court is citing... or Your Honor is citing an example where someone knows that, in terms of this statute, which protects against various types of discrimination, that harm is going to occur.

Chief Justice Rehnquist: Well...

But you still... to say it goes to the jury, you still have to resolve the question of whether the intent of the particular supervisor is going to be attributed to the corporation, don't you?

Mr. Fay: Yes.

And that... that is... and one thing I think we all agree here is that that precise issue is not before the Court.

But I did want to... to state that... that we believe...

Justice Ginsburg: And it's not before... before the Court why?

Mr. Fay: Well, the... the question of... of the difference in standards that was referred to by Mr. Schnapper and the Solicitor General is not precisely before the Court.

But we would submit that the higher agency principles, under common law, would apply to punitive damages.

And common law...

Justice Scalia: The question presented is, in what circumstances may punitive damages be awarded under Title VII of the 1964 Civil Rights Act?

If that isn't included in the... in the question presented, I don't know what is.

Mr. Fay: In... in direct response to the question, the... I don't think the Petitioner or the Respondent briefed this issue at length.

One of the amicus parties did.

The Chamber of Commerce, in its brief, starting on page 22, did explicate the common law to show that there is... there is no vicarious liability for punitive damages at common law.

It is different from some of the things that we've been discussing today.

Justice Kennedy: In your answer to Justice Breyer's question...

Mr. Fay: Yes.

Justice Kennedy: you said there's an intentional violation; why isn't that the end of the case?

Mr. Fay: Because...

Justice Kennedy: You said.

ut I need to know your description of those class... classifications of the cases where it is not so.

I know it may very well be...

Mr. Fay: One... one way I can...

Justice Kennedy: but I... I want to know when it isn't.

Mr. Fay: One way to describe the very difference in approach between the Petitioner and the Respondent here is... is to contrast the EEOC's policy guidance, which is referred to in the government's brief, and some of the examples that the government gives that would get you to the jury on punitive damages.

And, for example, they say resentment of Federal civil rights laws.

Well, that may be unfortunate, that someone resents the civil rights laws, but that, in and of itself, should not get you to the jury on punitive damages.

It is not tied to discrimination against the individual.

Another example that...

Justice Ginsburg: Where are you reading from?

Mr. Fay: I... I'm reading from pages 11 and 12 of the government's brief, where it sets forth a list of things that would be examples to go to the jury.

And I'm saying that those... those examples that... that the government gives, that have only to do with the isolated mental state, without reference to the discriminatory conduct in this case, are not appropriate for submission to the jury.

Sophistication of the employer is another one.

That's... that's something that should have nothing to do, because it doesn't have... it doesn't describe the seriousness of the discriminatory conduct at issue.

The EEOC's policy guidance, also cited in note 7 of the government's brief, on page 11, is much more allegiant to the statutory standard.

Chief Justice Rehnquist: Well, I'm glad we don't carry over the government's resentment of Federal civil rights law into the income tax.

Unidentified Justice: [Laughter]

Justice Souter: May I go back to your answer to Justice Breyer's question for a different purpose?

You said that if... if there is in fact awareness of the... of the Federal Civil Rights Act and a... and an intentional discrimination in disregard of... of what one knows is a legal duty, that... that may very well be malice, and at least it would go to the jury.

Mr. Fay: Yes.

Justice Souter: You... you've also said that the... that the indifference standard in the statute is... is virtually identical, or tantamount, to that kind of malice.

So, I suppose, in any case in which the... the indifference is shown, that would at least get to the jury, too; is that right?

Mr. Fay: In that instance, we are focusing solely on the mental state, and I think there is a difference to... his question, as I understood it, was if somebody knew darn well that they were violating the law.

Justice Souter: Well, the... Justice Breyer's question focused only on the mental state.

Mr. Fay: That's right.

Justice Souter: And... and you said, yes, that would be enough to get to the jury.

Mr. Fay: Because he was posing an example... I thought Justice Breyer was posing an example where the employer knew that there was a violation of the law.

Justice Stevens: That's right.

Mr. Fay: We get into a... a different area... a little bit different area where, instead of actual knowledge of an intentional violation, someone is acting recklessly as to... as to whether or not those actions are in violation.

Justice Breyer: Right.

Mr. Fay: But, again, I don't... I don't think you can take any of that into consideration without looking at the statutory framework, which says we're talking about punitive damages...

Justice Souter: Well, I... I just... I just want to... to go further in terms of your answer to his question.

And I... and I guess my... my question is, if... if malice... I'm sorry... if knowledge... if discrimination with knowledge of the Act goes to the jury, and the indifference is, I guess, virtually tantamount to that, why doesn't every indifference case also go to the jury without anything more?

Mr. Fay: Because both would require serious actions.

Thank you.

Rebuttal of Eric Schnapper

Chief Justice Rehnquist: Thank you, Mr. Fay.

Mr. Schnapper, you have four minutes remaining.

Mr. Schnapper: I'd like to respond to a number of the questions that have been asked by the Court by returning to the distinction I made at the outset between the statutory prerequisites and instructions that might be given to guide the discretion of the jury.

Section 1981a sets forth two and only two prerequisites: intent, first; and, second, either reckless indifference or malice

We don't think that the courts are at liberty to add a third prerequisite to that list.

The statute says that if those requirements are met, punitive damages may be awarded.

Now, a number of the concerns the Court raised I think could properly be contained in guidance that would shape the jury's exercise of its discretion, but that's fundamentally different.

To return, for example, to the question put to me by Justice Scalia, Section 909 of the Restatement of Torts contains very specific requirements, under agency principles, for the imposition of punitive damages.

None of them are in the statute.

The statute does not say indifference, reckless indifference, intent, and compliance with the principles of the Restatement of agency...

Chief Justice Rehnquist: But in... in the Faragher case last year, we certainly imported standards from the Restatement that weren't in the statute.

Mr. Schnapper: You weren't... you weren't dealing with this specific statute, which is... is quite...

Chief Justice Rehnquist: Well, we weren't dealing with the same statute, but I... I don't see why that bears on the desirability or vel non.

Mr. Schnapper: I...

Chief Justice Rehnquist: I mean, this... this statute is simply confusing to... no... no one can pretend that it's a clear guideline as to where... where a court is to go.

Mr. Schnapper: I think that the text of the statute does... does provide some guidance.

Chief Justice Rehnquist: Well, look... look at the way the Court of Appeals split on it.

It suggests that reasonable people can surely differ as to what it means.

Mr. Schnapper: I don't want to characterize six members of the D.C. Court of Appeals as unreasonable.

But, in all fairness, the wordscould not possibly mean egregious conduct.

That's simply not within the range of... of possible means of those words.

Justice Scalia: Well, but I mean, the argument made by... by your opponent is not an unreasonable one.

It... it comes down to whether punitive damages is a term of art.

And the... the later limit... the... the later specification of malice and reckless indifference is a limitation upon normal punitive damages.

Punitive damages may be awarded.

That is, damages for egregious conduct.

But only if there is malice or... now, that's one way to read it.

And the other way to read it is... is not as a term of art, and just to say, punitive damages... that is, damages that punish the defendant... may be awarded whenever there is malice or reckless indifference.

It seems to me both readings are plausible ones.

Mr. Schnapper: I certainly wouldn't want to disagree with you as to whether that's plausible.

But... but I think, in all fairness, that Congress has specifically address the prerequisites in... in the statute.

And it's spelled out, too...

Justice Scalia: The question is whether they are limitations upon normal punitive damages or whether they are a re-description of what punitive damages consist of.

And they could be either.

Mr. Schnapper: Either way, I don't think the Court is... is free to add to them, and I don't think egregious conduct is a possible interpretation of... of any provision in the statute.

Justice Ginsburg: Well, there was one brief, at least, that said, inherent in the very wordis this egregiousness notion.

So, by using the word,Congress meant egregious.

Mr. Schnapper: I... I think that that really is a stretch of the language.

When Congress says... if Congress had said you can award punitive damages, it might make sense to look to the common law for standards.

But when Congress goes ahead and spells out the standards that it has in mind, I don't think it's appropriate to add to them.

Justice Stevens: When the Court summarized its holding in Smith against Wade, did it use the word?

Mr. Schnapper: t did not.

Justice Scalia: Suppose... suppose it said compensatory damages may be awarded if there is malice or... or reckless indifference.

Now, in reading that, wouldn't you say that the damages that can be awarded can be no more than the loss which the plaintiff incurred?

Because the Congress used the word.

ouldn't you read it that way?

Mr. Schnapper: I would agree, Your Honor.

Chief Justice Rehnquist: Okay.

Thank you, Mr. Schnapper.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Haddle v. Garrison - Oral Argument

Fri, 18 Nov 2011 18:05:00 +0000

Case:

Haddle v. Garrison

Media File:

97-1472_19981110-argument.mp3

Related Transcript:

97-1472_19981110-argument.xml

Transcript:

ORAL ARGUMENT OF CHARLES C. STEBBINS, III ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 97-1472, the Michael A. Haddle v. Jeanette Garrison.

We're going to have to move along.

We have another case here, Counsel.

Mr. Stebbins.

Mr. Stebbins: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: But under the Fourteenth Amendment, generally we look to State law for the definition of property.

Mr. Stebbins: --Your Honor, I agree--

Unidentified Justice: 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.--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: Those people going to get reelected when they--

Mr. Stebbins: --Well, I don't know about that, Your Honor.

When the act--

Unidentified Justice: --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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: That's right.

Mr. Stebbins: But I don't think you would have a claim.

Unidentified Justice: 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.

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--

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Is it injury to person?

Mr. Stebbins: I believe that would be an injury to person, yes, Your Honor.

Unidentified Justice: So, your point is that... that general concepts of tort law inform our notion of injury--

Mr. Stebbins: Well--

Unidentified Justice: --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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: Very well, Mr. Stebbins.

Mr. Roberts, we'll hear from you.

ORAL ARGUMENT OF MATTHEW D. ROBERTS FOR THE UNITED STATES, AS AMICUS CURIAE SUPPORTING THE PETITIONER

Mr. 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--

Unidentified Justice: Well, should we look to State law to determine whether there's injury to person or property?

Mr. Roberts: --No, Your Honor.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: --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--

Unidentified Justice: --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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: Well, take--

Mr. Roberts: --It's a factual question I think, but--

Unidentified Justice: --Wait... wait a minute.

I'm trying to ask you a question.

Mr. Roberts: --I'm sorry.

Unidentified Justice: If you'll simply slow down, maybe I'll be able to.

Mr. Roberts: I apologize, Your Honor, Mr. Chief Justice.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: --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.

Unidentified Justice: 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?

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

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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: Thank you, Mr. Roberts.

We'll hear now from you, Mr. Bradley.

ORAL ARGUMENT OF PHILLIP A. BRADLEY ON BEHALF OF THE RESPONDENTS

Mr. 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.

Unidentified Justice: May I just--

--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.

Unidentified Justice: Does not, yes.

Mr. Bradley: There are other statutes that might provide a remedy to that same employee.

Unidentified Justice: 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.

Unidentified Justice: 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--

[Laughter]

--that--

--Gratuitous.

Gratuitous.

--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.

Unidentified Justice: Well, but from that, it also necessarily followed that the property interest in continued employment was also... was also injured.

Mr. Bradley: It was--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Okay.

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.

Unidentified Justice: Would Justice Souter, do you think?

May I ask you a question?

It sounds like a valuable--

--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.

Unidentified Justice: 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?

Unidentified Justice: Yes.

Mr. Bradley: I cannot, Your Honor.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: Yes.

Mr. Bradley: --there's an expectation of money for... for services rendered.

Unidentified Justice: Correct.

There's--

Mr. Bradley: Nothing in the future.

Unidentified Justice: --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.

Unidentified Justice: 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.

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

Yes, that's--

--To quote a whole other line of cases.

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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Mr.--

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

Unidentified Justice: --You're right.

I--

--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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: --with the premise of my question?

Mr. Bradley: --Because the employee had the--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: Where is this?

Mr. Bradley: --It's in the appendix to the gray brief.

Unidentified Justice: Okay.

Mr. Bradley: It's the last couple of pages.

Under section 1985(1), subpart 1, there's a prohibition to prohibit by force--

Unidentified Justice: What page are you reading from?

Mr. Bradley: --It's 1a, Mr. Chief Justice.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: We talked about criminal statutes.

The criminal statutes.

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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Was there some impediment?

I know there was another person who was mentioned in this picture, somebody named Neal.

Mr. Bradley: O'Neal.

Unidentified Justice: O'Neal?

Yes.

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

Unidentified Justice: 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.

Unidentified Justice: Is the difference attorney's fees?

Mr. Bradley: Is?

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Thank you, Mr. Bradley.

Mr. Stebbins, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF CHARLES C. STEBBINS, III ON BEHALF OF THE PETITIONER

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 William H. Rehnquist: Thank you, Mr. Stebbins.

The case is submitted.

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