Earl Warren: Number 383, Howard R. Marshall, Petitioner, versus United States of America. Mr. Francis.
George J. Francis: Mr. Chief Justice Warren, if the Court please. The case before this Honorable Court this afternoon involves a rather simple point which came up in a criminal trial which I've been appointed by the Court to defend the defendant. The salient point before this Honorable Court is whether or not the reading by jurors during the course of trial, that is to say after the trial has commenced, whether the reading by jurors of newspaper articles which set forth a defamatory matter about the criminal defendant which defamatory matter includes statements as to previous criminal convictions, includes statements that the defendant's wife had been involved in similar charges, tried and convicted in the same court and sentenced to jail, include statements that the defendant had prescribed restricted drugs for a -- at that time well known senior who shortly thereafter died and few other statements. The case rose under a charge that the defendant was guilty of indiscriminate dispensing of drugs without prescription, the drug being commonly known as Dexedrine. The defendant never took a stand. The defendant did not present testimony of his own but rather relied upon cross-examination of the Government's witnesses in an attempt to challenge the burden of proof that was been on the Government. In a very few words, the testimony was predominantly that of the government agent who testified that after having been introduced socially to the defendant, he approached him on two occasions -- approached the defendant on two occasions, concealing his identity and announcing to him that he had a long automobile trip to make. One from Denver, Colorado to Dallas, Texas in one evening and two, this is on subsequent occasion, a drive by automobile from Denver to California. The government agent requested stay-awake pills as he termed them and after some discussion on the initial approach to the defendant when the defendant recommended no dose and coffee to keep him awake, the government agent did received according to the testimony the dextro amphetamine sulfate, commonly termed Dexedrine. As I have stated, the defendant did not take a stand, he did not present evidence. He did not submit witnesses of his own. However, through cross-examination of the plaintiff's witnesses predominantly the government agent rather close cross-examination and very careful cross-examination, the trial court grant an instruction to the defendant on entrapment. The issue of entrapment was submitted to the jury as an issue of fact. The Government after they had rested their case and having realize that an instruction on entrapment was to be given based upon only the Government's case sought to reopen for permission to submit further testimony on rebuttal. That is to say that they had grounds that would justify the entrapment. The Court considered the implication rather unusual because of the fact that a rebuttal was being asked for where the defendant had not presented the case. However, the Court refused rebuttal on the grounds that the evidence that the Government was seeking to introduce was actually not relevant that is to say the Court was saying you have not shown me that this defendant was engaged in similar dispensing of drugs in this relevant period. Entrapment instruction was given and rebuttal was not had. Then in a few words is the summoned substance of the case. The matters of which the petitioner complains of here rose after the first day of trial. After the government agent and a few others had testified, the Court recessed. The next morning, defendant's counsel namely myself having observed several newspapers in the jury room itself and having been informed that the --
Felix Frankfurter: You mean the door of the jury room is open for you to see what's in there?
George J. Francis: Yes, Your Honor. The door of the jury room -- the jury room in the Denver courthouse is directly across the corner from the court room itself.
Felix Frankfurter: The jury was separated during the trial?
George J. Francis: The jury was separated during the trial.
Felix Frankfurter: And they would be going in there just for smoking or whatnot?
George J. Francis: They would be going there for such instances. In this instance, Your Honor, the court had not yet convened that morning.
Felix Frankfurter: They were in there collecting --
George J. Francis: Yes, sir, they were collecting that morning. And defendant's counsel requested that the jurors be interrogated for the purpose of determining whether or not the newspaper articles had been read. The court granted the request of defendant's counsel. And on individual interrogation of the jurors, it was discovered that 6 of the 12 had read one or the other of the newspaper articles at pages 52 and 53 of the record. The newspaper articles themselves are set forth. If I may read portions of those two articles, the one article in which four had read stated first the matters about what had happened during the course of trial in the previous date. Then at the bottom, the last two paragraphs, the newspaper articles stated Marshall has a record of two previous felony convictions. In 1953, while serving a forgery sentence in the State Penitentiary at McAlester, Oklahoma, Marshall testified before a state legislative committee studying new drug laws for Oklahoma. At that time, he told the committee that although he had only a high school education, he practiced medicine with a $25 diploma he received through the mails. He told in detail of the ease in which he wrote the past prescriptions for dangerous drugs. The other newspaper article, The Denver Post which is an afternoon and evening paper, stated in part, “The defendant was Howard R.(Tobey) Marshall, once identified before a committee of the Oklahoma Legislature as a man who acted as a physician and prescribed restricted drugs for Hank Williams before the country singer's death in December, 1953. Marshall was arrested with his wife, Edith Every Marshall, 56, in June, 1956. She was convicted on the drug charges in Federal District Court here in November and was sentenced to 60 days in jail. Records show that Marshall once served a term in the Oklahoma penitentiary for forgery. There is no evidence he is a doctor, court attaches said." The request of the defendant's counsel, the jurors being brought in to determine whether or not they have read the articles and it's being determined that a number of them have through rather torturous at least on what I considered in my part rather delicate attempt to examine several of the jurors, not all. And under interrogation from the Government attorneys and from the District Court itself, the jurors all stated very firmly that they had not been prejudiced by the reading and that they could continue with the course of trial. The defendant's counsel made a motion from mistrial at the termination of examination of the jurors and that motion for mistrial was denied, the Court stating that in effect, it felt that the jurors through their demeanor and because of their statements were not prejudiced and could continue with the course of the trial.
Hugo L. Black: The judge at that stage known (Inaudible)
George J. Francis: The Court, Your Honor had sensed the entrapment issue. The record will show that on my cross-examination of the Government's witness, I began to ask the person in trial. How was he dressed? Were you lying about where you were going? And the precise page is not in my mind but this was the first day of trial. The Government counsel got up to limit the scope of my cross-examination stating that he is trying to drive that and the Court did not permit Government's counsel to go beyond that, stating, well, this was within this scope of cross-examination and that what would develop were developed. I had not stated to the Court --
Speaker: You're applying with prejudice, I take it as a phase where you rely very heavily on the fact that this is in a context of an entrapment of defendant.
George J. Francis: Your Honor, I do not actually premise the position of this defendant on the fact that there was entrapment. I would be here or rather the defendant would be here and the same argument would be made today if an entrapment had not been an issue to the -- to the jury.
Speaker: You might not have been here whether you like it --
George J. Francis: I would have made -- I would have filed the petition to let it stay. The -- of course of the entrapment was part of it but the other point was that matters which could not have been introduced under these circumstances. That is to say the defendant never having taking the stand, those matters could never have been introduced. And there is authority to defect that -- the introduction of previous criminal activity or previous convictions if brought to the attention of the jury during the course of trial. Our grounds for mistrial --
Potter Stewart: Mr. Francis.
George J. Francis: Yes, sir.
Potter Stewart: You stated as I understood you that after learning about the -- these newspapers in the jury room that morning on the second day of trial, you first of all ask permission to interrogate some of the jurors and did so, did I --
George J. Francis: Yes, Your Honor.
Potter Stewart: Does that appear on the record? I've just been informed.
George J. Francis: At page 27 --
Potter Stewart: I don't know --
George J. Francis: -- in chambers. “Mr. Francis, there was a matter I wanted to bring up before Court opens.” That is that there are two articles in the newspapers. One, in yesterday afternoon's Denver Post and the other in this morning's news. Both of which described the past criminal record of this defendant. I noticed when I came in this morning as I walked by the jury room, the jurors had several rocky mountain and we're huddling around reading it. I would like to determine whether or not the jurors have been reading the articles in question. I believe the Court has admonished them not to do so. The Court: I saw the articles and where did the information coming from? And at that point, the Government concedes to having spoken to newspapers but only as to matters that had gone on in open courts.
Potter Stewart: Mr. Brown is the Assistant United States Attorney.
George J. Francis: Yes, Your Honor and Mr. Parrell (ph) and Mr. Hardy, all three represented the Government.
Potter Stewart: And then the -- and then the Court proceeds to interrogate some members of the panel, does he -- of the jury?
George J. Francis: Yes, Your Honor. The Court and then the counsel likewise asked questions. I believe I asked on two occasions perhaps three.
Potter Stewart: Where is that? I can't see it. I can't find that.
George J. Francis: I'm sorry, Your Honor. The interrogation of the jurors, Your Honor begins at page 39 and goes to 51. All 12 jurors were brought in.
Potter Stewart: I see now. It's in the supplemental --
George J. Francis: Yes, Your Honor.
Potter Stewart: Thank you very much.
George J. Francis: Now, this Court as far as defendant has been able to determine -- has never passed upon this issue. The Circuit Court here deemed the matter within the discretion of the trail court although the Circuit Court opinion in the instance -- instant case conceded that there might be instances so shocking that a mistrial would have to be declared as a matter of course citing the Sheppard case and one or two others. The dissent by Justice Murray relied on the fact that entrapment was an issue and that it would be hard to rely upon the defense of entrapment that no jury could consider the defense of entrapment with these newspaper articles in mind. And secondly, Judge Murray states that these matters being inadmissible, they were quote "ineradicably prejudicial". In other words, that was the type of prejudice in his opinion that could not be raised.
Speaker: You don't think much of Judge Murray's argument though I've gathered the way you're arguing --
George J. Francis: Your Honor, I was -- I was very pleased with the dissenting opinion and I felt that the position of entrapment was well taken as well as the position that this was ineradicably prejudicial. Judge Murray does rely more on the entrapment notion although he also says that trial by newspaper is not tolerable. He takes that position and he also takes -- states in any event he would reverse.
Speaker: The only thing that differentiates this case of ordinary situation where a newspaper gets into a jury room and shouldn't have got in there and then the judges instructs the jury and admonishes them and it's a very grievous case, we leave that sort of thing normally to a jury -- to the judge but you've got a special kind of a case here. At least it seems to me you had where -- because of the defense which you interpose. That's why I'm so surprise that you throw it down.
George J. Francis: No, Your Honor. I'm not abandoning it. I'm trying to perhaps carry water on both shoulders but I certainly rely on the notion that in fact it was one of the matters involved as well as the fact that here were matters ineradicably prejudicial which should not had come.
Charles E. Whittaker: Well, is the Tenth Circuit right in saying that such was the soul defense entrapment?
George J. Francis: I do not believe that that is the correct statement, Your Honor. I would differ with the statement of the majority for this reason. The burden of proof of course was on the Government and the Government would have had to prove a number of items. One, that the drug had traveled into interstate commerce and that was under heavy attack. Two, that the drug was identifiable and that was under heavy attack. Three, that this was a drug within the meaning of the statute because in this type of case, it is not enough to say that Dexedrine is a restricted drug but proof must be offered by experts that this type of drug is a drug within the meaning of the statute. The -- the Court is correct if it wishes to state it this way, Your Honor that entrapment in -- in effect was the only affirmative defense, if I've answered the Court's question --
Charles E. Whittaker: Yes.
Felix Frankfurter: -- seems to find fortification from the fact that he put up no defense, doesn't he?
George J. Francis: He does, Your Honor and --
Felix Frankfurter: What's the theory of that?
George J. Francis: I assume that -- and I take issue with it that this man is guilty. It's the only way I can read it. This man is guilty since he offered no defense and I would quarrel with that.
Felix Frankfurter: That is out of question. The claim that the jury -- wasn't justified in finding him guilty on the Government's own case, doesn't it?
George J. Francis: Yes, Your Honor. The --
Felix Frankfurter: In other words, if the defense rest on the claim of inadequacy of the Government case --
George J. Francis: Yes, Your Honor.
Felix Frankfurter: -- that implies that the defendant agrees to the strength of the Government's case.
George J. Francis: That would be the implication.
Felix Frankfurter: That was the way I read it and yet it's a good -- Judge Lewis couldn't have met that, could he? I don't know what else he could have met but that's what he said.
George J. Francis: He -- I think he must admit that he does rely on the -- I believe the pronunciation is (Inaudible) case saying that, well, when the evidence of guilt is overwhelming or something that thick --
Felix Frankfurter: Well if -- evidence of guilt maybe overwhelming but not because the defendant didn't put in any defense.
George J. Francis: Yes, Your Honor. The failure to make a defense or the failure of the defendant to take a stand was certainly not a concession that the Government's case was right or we would never been in court.
Felix Frankfurter: I should --
George J. Francis: The defendant would simply have entered a plea of guilty and then forgot the whole matter.
Felix Frankfurter: I should think one because of the argument that when he doesn't take a stand and although the trial judges admonishes the jury, they must not draw any instance from that fact, it becomes -- all the part of the jury not to draw an instance in that effect. It may get according through -- from the Denver Post.
George J. Francis: Well, it does. That position does militate, it seems to me against the position of a defendant who does not take a stand.
Felix Frankfurter: I know that the jury might be well -- we know why he didn't take the stand. We read it in this morning's paper.
George J. Francis: The position of the defendant actually is that without being able let say they eavesdrop on the jury that is what most likely or probably happens. At least that is an arguable position the defendant takes.
Speaker: (Inaudible)
George J. Francis: It's never been determined by this Court.
Felix Frankfurter: You don't mean that, do you?
George J. Francis: I certainly mean it.
Felix Frankfurter: What about Holt?
George J. Francis: Holt case, I believe Your Honor is probably one of the most misunderstood cases in this field at least in my opinion. I had originally read the Holt case and as I had in the Maddox and the Maddox case gave me a feeling of relation for a while until I found out that they ruled on another grounds but the Holt case should be studied very carefully. The Holt case comes up on this notion that the jurors and attorney for the defendant submits an affidavit in which he states “Several jurors have told me that they read newspapers with articles in them pertaining to the case.” Now, the lower court avoids the difficulty that the Maddox trial court, judge entered into where in Maddox, the trial court refused to consider affidavits and this Court said “Well now, you failed to exercise a discretion.” And therefore that was reversible error in failing to consider. The trial court in Holt states that he considers the affidavits and nonetheless rules against the defendant.
William J. Brennan, Jr.: (Inaudible)
George J. Francis: Pardon?
William J. Brennan, Jr.: (Inaudible)
George J. Francis: Perhaps the trial court does it but I don't believe --
William J. Brennan, Jr.: (Inaudible)
George J. Francis: No, Your Honor. Actually, what trial court did and only yesterday I had the chance or check the record in the Holt case. The affidavit of the attorney for the defendant in the Holt case stated that he had interrogated two jurors who stated to him that they had read several articles in the Seattle newspapers. And the defendant -- the counsel for the defendant now is making the affidavit and he states “I don't know which newspaper articles were read.” If perhaps all of them are read and he requests the trial court in the Holt case to subpoena the two jurors to make the determination. And the trial court refuses to do that. The trial court refuses to bring in the jurors to determine whether or not they had read specific newspaper articles. Then the Government in their briefs in that case as well, at page 74 of their briefs states “But the affiant was unable to learn from this jurors which articles relating to the trial they had read or whether they had read all of them”. The court treated this affidavit as stating the truth and refused to permit counter affidavits to be filed. It therefore was not made to appear that a single one of the articles of which complaint is made was ever seen by either of the jurors during the progress of the trial. Consequently, plaintiff is in error, is in no attitude to raise a question whether or not a reading of such articles by a juror would constitute a reversible error.
Felix Frankfurter: But the opinion of this Court, assume that they had read and --
George J. Francis: Your Honor --
Felix Frankfurter: -- the decision was made on that basis, wasn't it?
George J. Francis: I beg to differ with you, Your Honor. Justice Holmes states that the trial court might assume that but this Court, Justice Holmes said, could not make that assumption if it were to grant a new trial. And then Justice Holmes goes on to state, it may be assumed, he says, in effect and this is set forth in defendant's reply brief, It may be assumed that they saw something of the public prints.
William J. Brennan, Jr.: Now, what about the (Inaudible)
George J. Francis: Pardon.
William J. Brennan, Jr.: I guess we're looking at the same thing that the court did not make that assumption (Inaudible) There's a probability that the jurors were allowed to set -- see something (Inaudible) maybe assumed that they did so.
George J. Francis: Yes. And the assumption is this gets down to a very razor like analysis, Your Honor but I think I'm right.
William J. Brennan, Jr.: (Inaudible)
George J. Francis: For the purpose of passing on the permission to separate, we'll see something of the public prints is so obvious. Now, the McHenry case which --
William J. Brennan, Jr.: (Inaudible) and maybe assume it did so in this case related to separate -- that they did separate and not that they commit mistakes?
George J. Francis: He means this Your Honor that it is assumed that people will read newspapers but not that they read this article. The Circuit Court in the -- the McHenry case so states --
Felix Frankfurter: Let me ask you this -- I've (Inaudible) for the briefs and the records that I --
George J. Francis: Yes, Your Honor.
Felix Frankfurter: -- but you'll give me the answer before I can get it. In the Holt case, one of the articles which presumably or actually the jury read during their separation of this prejudicial character in principle or comparably prejudicial as the articles which you claim were in this (Inaudible) --
George J. Francis: I would say that they were.
Felix Frankfurter: They were?
George J. Francis: The Government's brief does not so indicate but my very hurried reading yesterday of what was set forth in the record indicated to me that there were rather sensational matters that were contained in the newspapers.
Felix Frankfurter: Well, now let me ask you this about Holt. Was the attack there by counsel for Holt, did he make an independent point of prejudice to the mere facts of separation and the susceptibility of that to disturbing conduct by that -- would that made an -- an attack?
George J. Francis: I believe that that was the basis of the -- the appeal. The decision states the -- the defendant is up on three points. One point precisely is that the jury was permitted to separate --
Felix Frankfurter: And that in it of itself is error particularly in a capital case.
George J. Francis: Exactly, Your Honor and that --
Felix Frankfurter: The argument -- if I follow you is -- am I agreeing to the whole -- according to your view that the real problem and the difficulty in Holt was that the trial judge allowed the jury in the capital state to separate which Mr. Justice Holmes' facts and then later the court's opinion, doesn't try in the ground for reversal and that if jurors separates, inevitably, they will leave the public prints.
George J. Francis: Exactly, that could be my interpretation.
Felix Frankfurter: -- the fact they had read extremely for the different areas.
George J. Francis: That would be my -- I think that would be my very firm position on the Holt case.
Felix Frankfurter: What is the first opinion which Mr. Justice Holmes in the middle of the case but that's certainly one would not get. I thought I knew that -- one would not get it from that opinion --
George J. Francis: And that is why Your Honor --
Felix Frankfurter: (Inaudible)
George J. Francis: And that is why, Your Honor, I would say that when Justice Holmes, and this is a misquoted statement, if the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present date is a misquoted statement, because what he means there is that we can't assume prejudice if we assume they read the public prints.
Felix Frankfurter: But you haven't -- you have to clear another (Inaudible)
George J. Francis: Yes, Your Honor.
Felix Frankfurter: Namely, it will take up a disconnection to another matter and not accept thereto, but made one of the grounds to demand a new trial or some of these alleged consequences, because they also involve the question, “How far the jury may lawfully be trusted to do their duty when the judges satisfy that they are worthy of the trust.” That's the point of Mr. Justice Harlan's question.
George J. Francis: I see.
Felix Frankfurter: (Inaudible)
George J. Francis: Yes. Well, the --
Felix Frankfurter: That's the real --
George J. Francis: -- the instruction --
Felix Frankfurter: -- that opinion for me.
George J. Francis: I see.
Felix Frankfurter: I'm not -- I'm saying that -- that I believe is really was the governing thought and the opinion of Mr. Justice Holmes.
George J. Francis: The court -- the court's instruction was that when being separated, they would not read matters. They would not discuss the case with anyone. And the court is then saying -- this Court is then saying, “We believe” or rather the trial court is saying, “I believe that the -- the jurors abided by that.”
Felix Frankfurter: You come back to your -- your -- prior -- what to discuss before this namely, you make -- you make this to mean that when the judge -- the trial judge allows the jury to separate, that presupposes the trust -- their good sense of sturdiness although exposed, could they be not to be influenced by any rubbish they seize.
George J. Francis: Not to see it, Your Honor.
Felix Frankfurter: Not even see it.
George J. Francis: He trusts that they will not look at it because he refuses --
Felix Frankfurter: But later (Inaudible) he later assumed that they did see it.
George J. Francis: He assumes that they saw something of the public prints.
Felix Frankfurter: You mean they saw the paper but --
George J. Francis: But they did not.
Felix Frankfurter: (Voice Overlap) they avoided looking at the thing that bore on the trials. They must be wonderful jurors.
George J. Francis: I would say that they show great strength.
Felix Frankfurter: (Voice Overlap) great strength.
George J. Francis: But the McHenry case Your Honor states --
Felix Frankfurter: You referred to that (Inaudible) is that this Court?
George J. Francis: The Circuit Court of the District of Columbia which is in -- on page 3 of the reply brief of this defendant. At page 764, the Circuit Court there says, referring to the Holt case. The court remarked that where jurors were permitted to separate, it was assume -- safe to assume that they saw something of the public press. And the question was whether or not under this assumption, error had been committed in failing to keep the jury in the custody of the Marshall. There was no proof that any of them had read it, referring to the facts in that case. We may assume that they saw something of the public press as was said in the Holt case, but not that they saw any particular article in a particular newspaper. The near opportunity to see it raises no presumption that it was seen and I think that is what Justice Holmes meant when he said that the opportunity for prejudice or corruption is not enough.
Potter Stewart: Was that in McHenry case you're just --
George J. Francis: McHenry --
Potter Stewart: -- referring?
George J. Francis: -- case, Your Honor.
Potter Stewart: In the District of Columbia Court of Appeals.
George J. Francis: Yes, Your Honor. And further justification can be found in that. And that, of all the cases that the Government cites on pages 18 and 19 of their brief, not one cites the whole case to that effect. In other words, we would expect that the Circuit Courts would have rushed to cite the whole case and say, “Well now, this is a matter of discretionary with the trial court.” See Holt versus the United States, 218 United States page 245, 250, 251, but they don't do that. Three cases mentioned it, but in a different connection. One as to the discretion of the trial court in denying a motion for new trial and the second, the discretion of the trial court in withdrawing a juror which was a matter that hit -- been handled by the Holt case namely that a juror was not withdrawn and that was an error alleged by the defendant. But the juror was not withdrawn, not because of the reading of the newspaper but because of something else. And if I may elucidate just a little more on the Holt decision, Justice Holmes says, “The judge did not reject the affidavit,” but decided against the motion on the assumption that more than it ventured to allege was true. And I submit the rational explanation of that that more than it ventured to allege was true was simply this. The affidavit ventured to allege that cert -- that newspaper articles had been read, but he -- the affiant couldn't say which ones, hoping that he could somehow induce the trial court to get the jurors in court and find out which ones. More than it ventured to allege means that it ventures to allege that certain -- that articles were read without being able to say in the affidavit which ones and the court would not assume that the detrimental ones were the ones that had been read. Actually, the Holt case came up because until that point, he was doubtful whether or not a jury was permitted to separate in a capital case. And the Holt case or the Federal Circuits disposed of that question by saying that it was permissible in capital cases to permit the jury to separate and that the court had discretion to permit the jury to separate. In this instance, it did not abuse its discretion in permitting the jury to separate nor did it abuse its discretion for denying a motion for new trial, the grounds of which was that the court had permitted the jury to separate.
Felix Frankfurter: Now, have that in cases in the lower courts, in the District Courts went up to the Court of Appeals involving uncontested or accepted uncontested claim or accepted claims that in fact the jury had read prejudicial materials of the press bearing on matters that were not and could not have been introduced as evidence that such conduct by the jury had been called to the trial court's attention that he examined the jurors as to the influence is pending that such elicit articles had upon them and that he had concluded after subsequent examination of the jurors that they were untreated and not infected by anything they read of -- of matters that did not as to which there was no evidence within the jury room.
George J. Francis: Yes.
Felix Frankfurter: Are there such cases? There must have been --
George J. Francis: There are quite a few cases.
Felix Frankfurter: And what are they? Tell us. Have you collected them? Are they available?
George J. Francis: They are submitted partially in both briefs, Your Honor. They are also submitted in one of the ALRs that is cited in the brief, 31 ALR Second. They're collected at length.
Felix Frankfurter: What is that?
George J. Francis: 31 ALR Second --
Felix Frankfurter: Where can I find the complete -- the most comprehensive collection from that note?
George J. Francis: I would say 31 ALR Second, Your Honor.
Felix Frankfurter: What page, do you know? Of course, that would be (Inaudible).
George J. Francis: Page 417.
Felix Frankfurter: Will you -- can you precipitate (Inaudible) those cases into a state and what they show?
George J. Francis: They are cases on both sides. Some which state that general prejudicial items are not grounds for new trial unless a juror admits to prejudice. I might add as a footnote here. I have never read one case on either side in which a juror admitted prejudice, not one case.
Felix Frankfurter: Are there any case -- is there any case in which the ingredient of entrapment was in the case?
George J. Francis: None that I found, Your Honor. But the cases run from where there are mere comments on the course of trial and motion for new trial is not denied. There are cases where mere comments which are not prejudicial on their face are still considered grounds for new trial. We have this fact that not one case that I have been able to find outside of the Riley case which is cited in both briefs in which a past criminal record was read by a jury. All of those cases except the Riley case granted new trial or mistrial.
Felix Frankfurter: This is in the Court of Appeals or in the trial court? Is that --
George J. Francis: They are state court decisions and two federal district court.
Felix Frankfurter: Do the Courts of Appeals predominantly go on the ground that they would not overrule the judgment of the trial court who has seen the jurors and examine and felt their qualities that they would be unmoved by this (Inaudible)
George J. Francis: I believe that that is the predominant --
Felix Frankfurter: That is the predominant.
George J. Francis: -- position that the --
Felix Frankfurter: Great difference to the judgment of a conscientious and competent trial judge, is that it?
George J. Francis: Based upon statements made to him by jurors who are under somewhat of addressed.
Felix Frankfurter: Well, you don't have to say that. You simply challenge the psychological capacity of a man to be dead sure what does and doesn't interest him.
George J. Francis: If I might comment on that Your Honor as my time is running out. There has been statements by judges that a juror's statement that he is not influenced should be considered in light of the fact that he has committed an impropriety and naturally he is most hesitant therefore to go very far. In other words, he is placed in the -- the -- the position of having to defend an impropriety.
Felix Frankfurter: Let me put this problem to you Mr. Francis, you couldn't listen -- you couldn't talk to a more sympathetic judge on this matter. But let me put to you this difficulty. If it would be accepted as what it's been called one aspect of the American way of life that a newspaper didn't print all these stuff and if it would be further accepted that you can't reach the newspapers not to do that and it would be further accepted that accepting capital cases, it would be on the whole wrong to confine the jury during the trial except in the case of our defendant with the notorious jury bribing propensity. How can you insulate the jurors, the scattered jurors from somehow rather breathing the air of the daily papers when they go home to their families and somebody stops them on the street, how can you -- how can you insulate the jurors, how can you keep them so -- so intact from the (Inaudible) so that you unsettle a trial because they can keep immune from what the source of the evil you cannot reach as I'm told you can.
George J. Francis: Well, Your Honor I suppose several methods of approach. One might be that -- this Honorable Court might be a little more strict as to the violations by newspapers that is to say by citations for contempt, because it's an interference with the jury trial in this instance and the contempt cases, this Honorable Court has ruled upon our cases triable to a court not to a jury and therefore contempt cases might be broaden or made more liberal where the jury is involved.
Charles E. Whittaker: What you're really arguing in this connection is the rule allowing separation (Inaudible)
George J. Francis: Well, I think that the separation of the jury is not the only method of solving the problem, Your Honor. I had -- I made a brief mention in the brief -- in my brief, “Why not just cite the newspaper in who committed the offense?” And hold the hearing and then state, “Well, we find that your -- your conduct although not in contempt of this Court deprive this person of a new trial and we have all this additional cost for new -- for the old trial and we're going to tax those costs to you. After all, it's nothing, but advertising for you and it's no more than a cost of advertising.
Felix Frankfurter: You said you're going to give several considerations. That's one or two -- yes, that's two.
George J. Francis: I would say that the -- there is no real practical guarantee that these matters not come from to a jury's attention except by enclosing the jury. That I would say but that you can try to curb the influence of media communication either through a tightening of the contempt citations or taxing for costs. Practically, that would be it.
Charles E. Whittaker: (Inaudible)
George J. Francis: Well, Your Honor if they are permitted to roam the street --
Charles E. Whittaker: No, even if you take them to a hotel.
George J. Francis: Yes, Your Honor there is that danger.
Charles E. Whittaker: (Inaudible)
George J. Francis: Yes, but --
Charles E. Whittaker: They go back and forth from the courthouse to the hotel and they see headlines on paper (Inaudible)
George J. Francis: But may I comment on that, Your Honor? Perhaps we are worrying too much as to an imposition on the freedom to publish which will -- which is not involved here. What is involved here is that actually a man may have been deprived of a pretrial and then it has nothing to do with pre-press anymore than as if I had typed this information as a third person and slipped it into the pockets of the jurors during the course of trial. The net effect is still that my client has been deprived of the right that the jury listened only to what is presented in open courts.
Felix Frankfurter: But you're also suggesting that a few contempt citations and money fine might reduce if not all together might -- if not eliminate all the other headlines reduce the size of the type.
George J. Francis: Yes, Your Honor, I would.
Speaker: (Inaudible)
George J. Francis: Well, I might quibble on that --
Speaker: (Inaudible)
George J. Francis: Actually, for all intention purposes in Denver, there is the Denver Post in the Rocky Mountain News.
Speaker: Do you have radio stations?
George J. Francis: We have radio stations but those are monitored out of Denver for the most part.
Speaker: Could I ask you a question before you sit down. Is there anymore of the charge printed on what appears on page 38 or --
George J. Francis: No, Your Honor.
Speaker: -- in other ordes that the entire charge on --
George J. Francis: On entrapment?
Speaker: -- the of entrapment, yes.
George J. Francis: Yes, Your Honor.
Speaker: It is. And there's nothing you said in there as to what bearing if any of bad criminal record he might have had.
George J. Francis: No, there was no reference made to that point at all. Now --
Charles E. Whittaker: (Inaudible)
George J. Francis: No, Your Honor.
Charles E. Whittaker: Or did you complained as I understand it about the charge to the jury on (Inaudible)
George J. Francis: No, Your Honor. But if I might just reduce one point which is of interest, we assume that -- we have to assume for all sorts of reasons I suppose that the jury listened to the trial court and that it becomes important because the trial court it says their demeanor indicates to me that they're not going to violate anything. But notice and this was a matter in a -- that I noticed only after reading the brief -- the record several times. On page 40 of the record, the court --
Charles E. Whittaker: (Inaudible)
George J. Francis: 40, Your Honor. The court states to the second juror. Now, this is the second juror who has been brought in to chambers. Mr. Parrell (ph) who's the Government Attorney says, “I wonder whether or not the court would want to instruct each juror not to discuss the article or its contents as they go back.” And the court says, “Yes, I think that is proper, but I thought I would give them that in a general instruction not to give consideration to that.” But of course, he's talking to the juror now. You shouldn't discuss among yourselves anything about this article. Now, the ninth juror walks into chambers --number nine which is seven jurors later at page 48. And she says she hasn't discussed -- she hasn't read these articles, but she says -- the court says, “Has anyone talked to you about either one of the items?” Mrs. Bush: No. The Court: No one has mentioned it to you? Mrs. Bush: No, sir. The Court: No one said that there was a piece in the blank. Mrs. Bush: They have been chatting in the room where the jurors are now since they had been called in here. So, that reflects upon how the juror listens to that. It is Justice Frank has stated in his dissent in the Leviton case. It's like telling a boy to go sit in a corner and not think of a white elephant.
Hugo L. Black: She said that no one told her anything about the article (Inaudible)
George J. Francis: She states that the article was being mentioned.
Hugo L. Black: But she said, “People were chatting.”
George J. Francis: Yes, Your Honor.
Hugo L. Black: But then she said that no one told her anything about it.
George J. Francis: Not what was in it, but how far can we go beyond that. Thank you.
Earl Warren: Mr. Knapp.
James W. Knapp: May it please the Court. There are one or two items in the factual situation that I would like to bring out before the Court that I don't believe my colleague has pointed out quite as emphatically as we would desire. The first is that these articles were not a default of the prosecutor of the government or any of the prosecuting officials. That was the first thing it was inquired into. The attorneys made their statement to the court and apparently from the record, the information was obtained by the reporter probably from some correspondent in Oklahoma or from an article in the Coronet magazine. So that issue is not at all present here and I mentioned that because in some of the cases that are cited on this point, you do find that the prosecuting officials or the sheriff or police have been giving information to the -- to the newspapers and we feel that that is entirely different proposition from the one at bar. The second point is that --
Earl Warren: What difference would that make as to the effect that it had on the -- on the jury or the effect that it would have on the -- on the defendant's liberty whether the prosecution gave it or not? Would not consider any punishment of prosecution here, but what we're interested in is -- is what effect did this have on -- on the jury and what difference would it make if it was bootlegged in some way or whether they told them directly?
James W. Knapp: If it appeared in the papers that the information came from the police or from the prosecutor, it might make a little difference in the minds of the jurors.
Earl Warren: Oh, you mean if the article stated that.
James W. Knapp: Yes, sir.
Earl Warren: Oh, yes. Yes. I -- yes, I understand that. We'll adjourn now Mr. --


Warren E. Burger: We will hear arguments first this morning in United States v. Varig Airlines and the consolidated case. Mr. Geller, you may proceed whenever you are ready.
Kenneth Steven Geller: Mr. Chief Justice, and may it please the Court: The Federal Aviation Administration has been charged by Congress with the responsibility of promoting safety of flight of civil aircraft. The agency fulfills its statutory mandate in two principal ways, one of which is essentially legislative, the other of which can be described as law enforcement. First, the FAA promulgates regulations prescribing minimum safety standards governing the design, material, construction and performance of civil aircraft. These standards take up more than 500 pages in Title VIX in the Code of Federal Regulations. The second, the FAA tries to police the aircraft industry's compliance with these safety standards by reviewing design and performance data, conducting tests and deciding whether to certify that particular aircraft are in conformity with its regulations. Congress has made it unlawful to operate an airplane that does not have a current airworthiness certificate issued by the FAA. These cases were brought under the Federal Tort Claims Act on behalf of the owners and passengers of two airplanes that crashed due to in-flight fires. Respondents sought more than $100 million in damages from the United States on the ground that the FAA was negligent in carrying cut its statutory responsibilities by certifying the airplanes that crashed even though they allegedly did not comply with the Agency's safety standards. The Ninth Circuit agreed with Respondents' arguments. We have sought certiorari because we believe that Congress could not possibly have intended to expose the United States to tort liability to members of the general public for errors in carrying out its regulatory responsibilities. Although the issues here are solely ones of law, I think it would be useful to begin by briefly describing the facts of these cases in order to show just how far reaching and unprecedented the Ninth Circuit's judgment in this case really is. The United Scottish Insurance case involves an airplane that was manufactured in the United Kingdom in 1951. It was sold to an air taxi service known as Air Wisconsin. In 1965 Air Wisconsin contracted with Aerodyne Engineering Corporation for the installation of a gasoline fuel heater, and as required by FAA regulations Aerodyne applied for what is called a supplemental type certificate authorizing the installation of the heater. In 1966, the following year, the airplane was sold by Air Wisconsin to Respondent Dowdle who owned Catalina-Vegas Airlines, another air taxi service. Between 1966 and the crash of that plane in 1968 Catalina-Vegas inspected its airplane on at least eight occasions including two major yearly inspections of the gasoline heater. The District Court found that the crash occurred because the gasoline line leading to the heater was not adequately clamped to reduce vibration allegedly in violation of the FAA safety standard prohibiting "excessive vibration in fuel lines". The court held that the FAA was negligent in inspecting the airplane and in issuing a supplemental type certificate. The Court of Appeals affirmed the judgement, as I said a moment ago, agreeing with the District Court that the FAA was liable under California's law as a good samaritan. The Ninth Circuit said that the government had performed a service for the Respondents within the meaning of the Good Samaratin Doctrine and that the government should expect that members of the general public would rely on its certifications of airworthiness.
Warren E. Burger: What was the time lapse between the government's inspection and the accident?
Kenneth Steven Geller: The inspection would have taken place in 1965. The accident took place in 1968. The facts of the Varig case involve conduct by the FAA, Mr. Chief Justice, even more remote than the three years that was involved in United Scottish. The Varig concerns the crash of a Boeing 707 on a flight from Rio de Janeiro to Paris in 1973. The FAA had issued a type certificate for the Boeing 707 in 1958, 15 years prior to the crash. The plane involved in that case had been sold by Boeing to Seaboard Airlines. In 1969 Seaboard Airlines resold the plane to Varig, which is the Brazilian air carrier. The Brazilian took the plane out of the United States permanently at the point, which had the result of voiding its FAA airworthiness certificate. Respondent alleged that the crash in that case occurred because the towel disposal area in one of the aft lavatories on the Boeing 707 was not designed to contain fires, allegedly in violation of the FAA regulations, and that the FAA was negligent in 1958, 15 years earlier, in not noticing this defect and in issuing a certificate for the airplane.
Byron R. White: What was that certificate? That was the--
Kenneth Steven Geller: Type certificate.
Byron R. White: --That is the first one, is it not?
Kenneth Steven Geller: Yes, although the complaint in that case was not too clear as to exactly which certificate they were complaining about. Now we understand from the briefs that Respondents in the Varig case were complaining about the issuances of a type certificate, which was the first certificate.
Byron R. White: Are the various certificates cumulative in a sense that if you miss something that you should have caught in the first place you should catch it in the next or not?
Kenneth Steven Geller: Well, the Airworthiness Certificate is the final certificate that is issued to each plane as it comes off the assembly line, and the FAA does not inspect each plane.
Byron R. White: I understand that.
Kenneth Steven Geller: If the FAA, for example, would revoke a type certificate it would have the result of voiding the Airworthiness Certificate. You have to have a valid type certificate in effect to have a valid Airworthiness Certificate.
Byron R. White: But an Airworthiness Certificate does not necessarily inspect for what you would inspect for in a type certificate?
Kenneth Steven Geller: No.
Lewis F. Powell, Jr.: Mr. Geller, following the original certification of airworthiness, exactly what is the responsibility of the FAA with respect to inspection?
Kenneth Steven Geller: With respect to each airplane?
Lewis F. Powell, Jr.: Yes, with respect to each airplane.
Kenneth Steven Geller: The FAA does no further inspections of individual airplanes.
Lewis F. Powell, Jr.: It does have some responsibility to make sure that the manufacturer or operator of the aircraft--
Kenneth Steven Geller: It has general responsibilities to make certain that the manufacturer is carrying out a program of maintenance, and it has, I am told, regular inspections of air carriers to make sure that they are in general complying with maintenance requirements. But it no longer looks at any particular airplane. That is the responsibility of the air carrier.
Lewis F. Powell, Jr.: --There is no further certification of--
Kenneth Steven Geller: No further certifications of individual airplanes.
Thurgood Marshall: --But they do check the maintenance?
Kenneth Steven Geller: They check the maintenance of air carriers in general... that is correct... but not any specific airplane. We believe that the decision of the Ninth Circuit is plainly incorrect for four reasons, any one of which would require reversal of the judgment below. First, Congress did not intend to subject the United States to damages liability under the Federal Tort Claims Act for actions arising out of government regulatory activities, that is, for negligence in enforcing the law in requiring that third parties comply with the law. Moreover, Respondents' claims are barred by the misrepresentation and discretionary function exemptions of the Tort Claims Act. Finally, the FAA's regulatory activities even if they are to be judged against the standards of state tort law do not violate the Good Samaritan Doctrine. We think the most serious error of the Court of Appeals, certainly the one with the most damaging ramifications is its unprecedented holding that Congress intended to allow the courts to oversee government regulatory or law enforcement activities in the guise of adjudicating Federal Tort Claims Act suits.
William H. Rehnquist: Well, Mr. Geller, is it all that unprecedented after the Court's decisions in Indian Towing and Rayonier?
Kenneth Steven Geller: I believe so, Justice Rehnquist. I hope to discuss this, but there is, I think, a basic distinction between the sorts of operational activities that were involved in those cases and the regulatory activities that are involved in this case. I do hope to expand on that in just a moment. It seems clear to us from the legislative history and the language of the Federal Tort Claims Act that what Congress had in mind in passing the Act was a sort of ordinary, common law, garden variety tort such as automobile accidents, malpractice. On the other hand, it seems just as clear to us that Congress did not want the Act to be used as a way of challenging so-called governmental functions. The legislative history is replete with evidence of Congress' concern that actions, for example, of the FTC or the SEC not be the subject of a challenge under the Federal Tort Claims Act. Congress not only put in the disrectionary function exemption to take care of this problem but also emphasized the point by putting into the Act twice, not once but twice, the express requirement that the United States can only be held liable in circumstances where a "private person under state law would be liable. " This phrase appears not only in 28 U.S.C. 2674, which is the substantive liability provision of the Federal Tort Claims Act, but the precise same phrase appears in 28 U.S.C. 1346(b), which is the grant of jurisdiction to the district courts to hear Tort Claims Act cases. This Court recognized the same basic point in the Feres case, which is one of the first decisions of this Court interpreting the Federal Tort Claims Act, but there the Court held that Congress did not intend to allow the government to be held liable for engaging in activities that are not even remotely analogous to activities that private parties undertake. The actions of a government agency in enforcing safety legislation pursuant to a program of inspection and certification simply have no counterpart in the private sector. These sorts of regulatory activities are a form of law enforcement. The FAA, for example, has to make sure that private parties are in compliance with the FAA statute and safety regulations--
Byron R. White: Mr. Geller, can a prison guard be sued by an inmate for negligence?
Kenneth Steven Geller: --Prison guard or the United States?
Byron R. White: Prison guard.
Kenneth Steven Geller: I assume a prison guard can be sued.
Byron R. White: Can the United States?
Kenneth Steven Geller: Under the Muniz case the United States can be sued for negligence by a federal prisoner, yes, for the sorts of torts that were involved in that case.
Byron R. White: But certainly no private person would ever be sued for running a prison negligently.
Kenneth Steven Geller: Well, Muniz is a slightly different case because the Court did an extensive study of the legislative history of the Federal Tort Claims Act in Muniz and determined that unquestionably congress had intended to cover suits by state prisoners. On the other hand, even in Muniz in light of what I said to Justice Rehnquist earlier, even in Minuz just like in Indian Towing and in Rayonier the federal government was itself carrying out some direct service performing some operational function. It is not regulating the conduct of third parties to make sure that they were in compliance--
Byron R. White: How about negligent operation of a military aircraft?
Kenneth Steven Geller: --Negligent operation of a military aircraft? If the United States itself is doing some operations, performing some operations itself--
Byron R. White: Well, it is out there carrying out a training mission, and they negligently operate the aircraft and it crashes.
Kenneth Steven Geller: --Under Feres, of course, the United States could not be sued by any solider, but--
Byron R. White: No, but how about--
Kenneth Steven Geller: --A suit by civilians would be appropriate because the United States is itself--
Byron R. White: --No private person is ever going to be sued for running a military aircraft.
Kenneth Steven Geller: --Well, the Court has said in these operational cases that private persons do not have to be engaged in the identical activities. It is sufficient under the Federal Tort Claims Act that they engage in similar sorts of activities.
Warren E. Burger: Well, isn't the parallel more accurately if Northwest Airlines falls on someone's house and then destroys the house, Northwest Airlines is liable. Now, if the Army... if the Air Force falls on someone's house, there is a private person liability analogy.
Kenneth Steven Geller: Precisely, Mr. Chief Justice. That is the point that the Court made in Indian Towing and in Rayonier, but private people do not regulate the affairs of other private people for the purpose--
Byron R. White: Yes, but private people make inspections. As a matter of fact, the FAA relies on private people to make inspections for them. I suppose those private inspectors can be sued.
Kenneth Steven Geller: --Yes, Justice, but that is one of the things that the Ninth Circuit said. I think one of the most damaging statements in the Ninth Circuit's opinion pervades the rest of the opinion in terms of its error was the statement that the Ninth Circuit made that the FAA has a responsibility like private inspectors to inspect every portion of every aircraft. That is plainly incorrect. There is nothing in the FAA statute, or manuals or regulations that imposes that responsibility on the FAA. Quite the contrary, the FAA has always had the responsibility to do nothing more than spot check or to do as extensive an investigation of any aircraft as it determines is necessary to make certain that the private parties who have the operational responsibilities are complying with the FAA safety standards.
Sandra Day O'Connor: Mr. Geller, there is nothing in the opinions of the Court in Indian Towing and Rayonier and Muniz to suggest that liability turned on direct operational responsibility. Is this something you are just extrapolating from facts in those cases?
Kenneth Steven Geller: Justice O'Connor, I believe there is something in those opinions that support precisely what I am saying here. For example, in Indian Towing 350 U.S. at page 64 the Court begins its opinion by saying, "The question here is one of liability for negligence at what this Court has characterized the operational level of government activity. " Four pages later on page 68, the Court repeats, "It is hard to think of any government activity on the operational level or present concern which is uniquely governmental in the sense that it has not at one time or another been privately performed. " So the Court's opinions in those cases do suggest that what the Court had in mind were operational rather than regulatory activities.
Sandra Day O'Connor: Well, but the Court rejected the government's argument of the government function defense in those cases.
Kenneth Steven Geller: In those cases, Justice O'Connor, I think a different argument was made and rejected. In terms of... Those cases involve operational activities. The government had suggested that in the universe of operational activities there should be a distinction made between governmental proprietary activities and uniquely governmental activities. What the Court said in that case is that when we are dealing with operational activities everything that the government does is governmental, and it is foolish to distinguish between proprietary activities and uniquely governmental activities. This case involves a distinctly different sort of governmental activity which is a regulatory activity. Private people do not engage in regulatory activities. They do not impose sanctions on other private people. They do not issue certificates to allow other private people to engage in interstate commerce. That is what we have in this case.
William H. Rehnquist: Mr. Geller, instead of kind of assuming that these are all either red squares or black squares, would it not be just as accurate to say that Feres and Dalehite was one mode of construction of the Federal Tort Claims Act and that Indian Towing and Rayonier and Muniz was a somewhat different one, and now the government is asking us to kind of return to Feres and Dalehite, which I think is perfectly proper for the government--
Kenneth Steven Geller: I think that all of these distinctions are reconcilable, Justice Rehnquist, because I do think there is a basic distinction between operational activities, which were what was involved and what the Court emphasized was involved in Indian Towing and in Rayonier, and regulatory activities in terms of the private person language that Congress twice put into the Federal Tort Claims Act.
William H. Rehnquist: --But it is almost impossible to reconcile the opinion in Dalehite with the opinion in Rayonier. In fact, Rayonier says that the Dalehite in part is no longer good at all.
Kenneth Steven Geller: Only as to the parts of Dalehite that concern operational activities, the fighting of a fire. In fact, speaking of Dalehite I think the precise distinction that I am trying to make here was emphasized by Justice Jackson's opinion in Dalehite. Dalehite as you mentioned, Justice Rehnquist, involved a suit challenging a number of activities by the government. The Court eventually held that the suit was barred by the discretionary function exemptions of the Federal Tort Claims Act. Justice Jackson and two other justices dissented in that case on the grounds that what the government had been engaging in there was operational. It was something like what private parties could do. Therefore, Justice Jackson thought the government should be held liable if it acted negligently. But Justice Jackson went on to point out the sorts of governmental activities that even he and the other dissenters agreed could not be the basis of a Federal Tort Claims Act suit. I will just read one sentence from Justice Jackson's opinion because I think it highlights a distinction we are making here. Justice Jackson said, "When an official exerts governmental authority in a manner which legally binds one or many he is acting in a way in which no private person could. " "Such official should be controlled solely by the statutory or administrative mandate and not by the added threat of private damage suits. " So even the dissenters in Dalehite understood this basic distinction between operational activities that the government may engage in or private people may engage in and the quintessentially governmental activities of regulation and law enforcement which is what we have in this case.
Lewis F. Powell, Jr.: Mr. Geller, may I ask you this question. Would the decision of the Ninth Circuit Court of Appeals apply to the Pure Food and Drug Law?
Kenneth Steven Geller: We believe that it would because the decision of the Ninth Circuit in terms of its construction of the private person language and the Good Samaritan Doctrine does not rely on any facts that are unique to this case. The Good Samaritan Doctrine requires a showing that the defendant has (1) performed a service for another; and (2) that other people including the general public, according to the Ninth Circuit, are entitled to rely on that service. If the Ninth Circuit is right about its construction of those terms it would presumably apply to every government regulatory activity because--
Lewis F. Powell, Jr.: Automobile safety.
Kenneth Steven Geller: --Exactly. The Occupational Safety and Health inspector goes in and inspects a plant and negligently, let's say, fails to detect--
Lewis F. Powell, Jr.: Environmental Protection Agency action?
Kenneth Steven Geller: --Yes. The Federal Deposit Insurance Corporation, a bank examiner examines the books of a bank and negligently fails to discover that the bank is failing. Presumably under the Ninth Circuit's decision the United States could be sued under the Tort Claims Act by bank depositors or creditors or shareholders under the Good Samaritan Doctrine because according to the Ninth Circuit the United States when it engages in these regulatory activities is performing a service for the public and the public is entitled to rely on it and nothing more need be shown. I might add that these are not fanciful notions, Justice Powell. There is as we pointed out in our brief a suit pending right now against the United States under the Federal Tort Claims Act for $4 billion challenging on theories similar to those adopted by the Ninth Circuit the government's allegedly negligent inspection and certification of the Three Mile Island nuclear power plant, the Nuclear Regulary Commission's allegedly negligent certification. The government's motion to dismiss in that case was denied on grounds that are quite similar to the Ninth Circuit's decision in this case. So we believe that--
Warren E. Burger: Mr. Geller, before you go on do the other countries who buy our older airplanes from our airlines, Venezuela, France, England, do they have counterparts to our FAA?
Kenneth Steven Geller: --We have bilateral treaties with a great many countries that do have similar arrangements. Brazil is one of those countries. Brazil, in fact, issued an Airworthiness Certificate to this plane in 1969 when Varig bought the plane four years prior to the crash. Presumably Varig is the Brazil national airline, and Brazil certified its own plane as airworthy, which adds to the peculiarity of Varig's suing the United States here for a certification that the FAA made in 1958.
Warren E. Burger: It is a reality or assume it is that throughout South America and Africa you will find even old DC-3's that were purchased from our airlines still functioning on shuttle flights. Those planes go back 35, 40 years. Under the Ninth Circuit opinion would the crash of a DC-3 down in Venezuela or off in Ethiopia open the door to the same kind of liability as is involved here?
Kenneth Steven Geller: Presumably, Mr. Chief Justice. There is no limiting principle in the Ninth Circuit's opinion that would not allow it to be extended to that case. Here, for example, the Ninth Circuit found that the public in general is entitled to rely on FAA inspections even though in the Varig case 62 of the plaintiffs are Brazilian residents who were flying from Rio de Janeiro to Paris on a Brazilian airline. Nonetheless, the Court of Appeals found that the reliance aspect of the Good Samaritan Doctrine was satisfied. That is the aspect of the Ninth Circuit's opinion that we find particularly troubling. If there are no further questions, I would like to reserve the balance of my time.
Warren E. Burger: Very well. Mr. Gerry.
Richard F. Gerry: Mr. Chief Justice, and may it please the Court: The Congres in the Federal Tort Claims Act decided decades ago that the government should and will be liable if a private person in like circumstances would likewise be liable. Liabilty is, of course, limited to a finding of negligence, and legislative, judicial and policy decisions are outside the gamut, but in overzealous performance of their duties the lawyers of the Justice Department try to turn back the clock to the pre-Federal Tort Claims Act era when injured parties would have to go to Congress in private bills as they would if turned away here in order to resolve their problems with the government. In these cases, each of them, there can be no doubt that there was negligence on the part of government employees which attributed as a proximate cause to the death of 128 people and the total loss of two aircraft. Still, we are here 15 years after one of these accidents and 10 years after the other trying to enforce the liability which the Congress itself decreed more than 30 years ago.
Warren E. Burger: Mr. Gerry, with respect to that last hypothetical I put to your friend, suppose to make it more concrete the Venezuela Airlines bought a DC-3 from Northwest Airlines when those planes were discarded and it has been used in Venezuela for 20, 25 years and then you get the same fact situation you have got here, liability of the FAA of the United States through FAA inspection?
Richard F. Gerry: Liability only if in the issuance of the original--
Warren E. Burger: I am assuming the same facts as you have in this case.
Richard F. Gerry: --Liability only if in issuance of the original type certificate the FAA or its predecessor, the CAA, was negligent. The fact is--
Warren E. Burger: Even if that was 20 or 25 years ago.
Richard F. Gerry: --The actual facts are, Mr. Chief Justice, at the time of the certification of the DC-3 the CAA did not conduct itself in the same fashion as it did in 1958 when it certified the 707. So I think that such liability would be remote. Between the time of the certification of the DC-3 and the time of the certification of the 707 the government had continued to permeate the field and to take over the responsibilities that had previously been conducted by private manufacturers. This all started with the private manufacturers doing all of the inspection, all of the decision as to whether or not an aircraft should be released, and then went on to where we presently are or were in 1958 where only after the FAA had inspected each and every part of the aircraft could an aircraft be released to be used by the general public. So as a practical matter the answer to your question would be no. As a legal matter, if they negligently had done the same in that case as they had in this, I would think the answer would have to be yes because the rule as I understand it in the federal court is that the liability attaches at the time of the impact of the negligence, not at the time of the actual negligence itself. We are here asking this Court to affirm these cases to send a clear message to the executive branch to accede to the wishes of Congress and to cease clogging the courts with this kind of litigation and to say to the Justice Department when it is clear that negligent errors have been made at the operational level which cause death, injury or destruction of property not to waste more of the public treasury in a futile struggle against the inevitable but to do as private industry and the insurance industry does, cut their losses by compromise and settlement and preserve the time of the courts for other possibly more difficult matters. In these cases--
William H. Rehnquist: Well, I doubt that we would have granted certiorari if we did not feel this was an issue of some significance.
Richard F. Gerry: --I agree with the Court, and, Justice Rehnguist, I think it is an issue of high significance. It has been since Union Trust that this Court has made a pronouncement in the aviation field, and I think it is really timely for the Court to again give us guidance in this field. I think that that guidance should be that the--
William H. Rehnquist: In your favor.
Richard F. Gerry: --Obviously. [Laughter] In these cases the negligence of the government employees is obvious, glaring and found by the District Court in findings of fact in the one case and conceded in the other case.
Warren E. Burger: Were these aircraft subject to inspection in the countries to which the airline's purchaser is attached?
Richard F. Gerry: Yes, they were, Your Honor. I am aware of a question asked of counsel for the government as to whether or not the inspections would have occurred, and there is a finding of fact in the United Scottish case that it is impossible, uneconomical, unreasonable and unfeasible for an owner of an aircraft inspected and certificated by the Federal Aviation Administration to take down the entire aircraft and inspect it completely. That happens two times where the entire aircraft or a subsequent installation is inspected. When the aircraft is originally certificated then it is totally inspected by the FAA and by the manufacturer also.
Warren E. Burger: In the Scottish case that you are just referring to, what was the time span between the FAA inspection and the accident?
Richard F. Gerry: About two and a half years, from 1965 to 1968.
Warren E. Burger: The Scottish case?
Richard F. Gerry: In the Scottish case.
Warren E. Burger: I thought that was the time on the other case.
Richard F. Gerry: No, the other case was from 1958 at the time of the issuance of the original type certificate for the Boeing 707 and 1968, the time of the... 1973, the time of the accident, 15 years in that case.
Byron R. White: When do you think the negligence occurred in the Varig case?
Richard F. Gerry: In the Varig case, in the original type certification, Your Honor--
Byron R. White: There was not a repetition of that negligence when the plane was given an Airworthiness Certificate?
Richard F. Gerry: --Your Honor--
Byron R. White: I just want yes or no.
Richard F. Gerry: --No is the answer.
Byron R. White: How about in the Scottish case?
Richard F. Gerry: It occurred at the time of the initial installation of the fuel line, and there was no--
Byron R. White: What kind of a certificate was that?
Richard F. Gerry: --That was a supplemental type certificate.
Byron R. White: And again the Airworthiness Certificate, there was no negligence then?
Richard F. Gerry: Well, the Airworthiness Certificate in the Dove case had initially been issued by the British government--
Byron R. White: Yes.
Richard F. Gerry: --some time earlier in the fifties. Then when the British government issues a type certificate the American government accepts that type certificate as the Brazilian government accepts ours.
Byron R. White: Do you know whether or not the FAA ever delegates to the manufacturer the issuance of the type certificate?
Richard F. Gerry: They never delegate the issuance of the type certificate, but they do delegate at the present time--
Byron R. White: Airworthiness inspection.
Richard F. Gerry: --They delegate some inspection activities to designated representatives called designated--
Byron R. White: What kind of certificates are--
Richard F. Gerry: --They do not issue certificates, Your Honor, at all.
Byron R. White: --I know they do not, but they are not type inspections that they delegate.
Richard F. Gerry: They do at the present time delegate inspections that go into making up the type certificate, but they do not delegate the authority for issuance of the type certificate itself. At the time of the Varig aircraft certification there was not this delegation option as far as the type certification of the Boeing 707 according to the testimony so far adduced in the case.
Byron R. White: How about in the Scottish case?
Richard F. Gerry: No. In the Scottish case there is a specific finding of fact that the inspection had to be done under the FAA's manual 8110.4, which the court took judicial notice, had to be done by an FAA inspector. There was testimony by the person who signed that aircraft off, the head of the section, that it had to be done by a FAA inspector, could not be done by a licensed, private person.
Byron R. White: I take it you think that does not make any difference anyway.
Richard F. Gerry: Yes, I do think it may make a difference. Obviously if the inspector has the duty to do it and that inspector is a FAA inspector, then the lability lies with the government.
Byron R. White: What if he has the discretion to delegate it to somebody else?
Richard F. Gerry: No one in the field has that discretion. Only the FAA administrator can delegate.
Byron R. White: All right. Suppose there is the discretion to delegate to a non-FAA employee the job of inspection.
Richard F. Gerry: If they do that--
Byron R. White: Will that make a difference in your case?
Richard F. Gerry: --Not in my case.
Byron R. White: Of course that did not happen, but what if in some other case it happens. Do you think that would make a difference?
Richard F. Gerry: I might think it might, but the government in its manual says a DER, who is a designated engineering representative, while performing those duties which are part of his responsibilities as an agent of the administrator for all intents and purposes becomes an employee of the government and thereby may incur liability for the United States if he is negligent. Now whether or not that is true, I do not know, but it seems to be the opinion of the United States on the subject.
Thurgood Marshall: Mr. Gerry.
Richard F. Gerry: Yes, sir.
Thurgood Marshall: Is it your argument that the present law exempts the responsibility of the manufacturer to inspect?
Richard F. Gerry: Absolutely not. Contrary to what the government says--
Thurgood Marshall: You seem to be arguing that.
Richard F. Gerry: --No. Contrary to what the government says, I think the manufacturer remains liable, and the--
Thurgood Marshall: But the government has got a bigger pouch?
Richard F. Gerry: --This is like any other area where there is more than one tort feasor. They are concurrent joint tortfeasors in this case, and the decision as to who should bear the final risk of loss here should come in the case that will follow this when the government sues for indemnification as its attorneys have publicly said that they would do.
Harry A. Blackmun: I take it no movement in that direction has yet been taken.
Richard F. Gerry: It has not, Your Honor. There has been no final judgment and, therefore, no action filed for indemnification by the United States. There has been a publication by attorneys for the FAA which says that that is their intention in cases where the government is found responsible, and under the law of California where we have equitable contribution I would assume that they would sue both for indemnity and for equitable contribution.
Warren E. Burger: Do the FAA attorneys have any jurisdiction over a question of that kind?
Richard F. Gerry: I do not know, Your Honor.
Warren E. Burger: Only the Attorney General of the United States could make that decision.
Richard F. Gerry: I agree with you, Your Honor. They were the attorneys, however, responsible for the prosecution of these cases. As I was saying, Your Honor, there is no doubt about the negligence in these cases. It was found in the United Scottish case to be negligence and also to be a proximate cause. It was at an operational level. There was no discretion left in--
Sandra Day O'Connor: Well, is there not considerable judgment or discretion in determining what is excessive vibration?
Richard F. Gerry: --I believe that there is judgment, but there is not policy discretion such as that which is provided in the Federal Tort Claims cases, Justice O'Connor. My understanding is that the Federal Tort Claims Act exception found in 2680(a) deals with administrative policy discretion, and that when only a scientific decision such as in Griffin v. United States where obviously there was more discretion, a scientific determination as to whether or not a lot of virus should be permitted to enter the marketplace, where only a scientific or mechanical or operational decision has to be made that that is not the type of discretion talked about in the FTCA.
William H. Rehnquist: Mr. Gerry, in the Dalehite case they said that the decision as to how to bag fertilizer was discretionary, did they not?
Richard F. Gerry: I most respectfully disagree, and I think that we are a long way from Dalehite. I think that--
William H. Rehnquist: What do you mean when you say you think we are a long way from Dalehite?
Richard F. Gerry: --Well, I think in those cases that have followed there is been a great deal of this Court's interpretation of what was in Dalehite, and although it has not been overruled in all of its aspects, as it should not be, I think in those aspects where there was only operational negligence such as in fire fighting that this Court has in Rayonier taken care of that problem. If a bagging case come up I suppose the Court would take care of that problem.
William H. Rehnquist: Unless maybe it decided to take care of Rayonier and Indian Towing the way you suggest those cases took care of Dalehite. There is a certain sinuosity to judicial construction of statutes over a period of time, is there not?
Richard F. Gerry: I have found it that way, Your Honor. [Laughter] We believe that in this case the government is liable under the congressional mandate of the Federal Tort Claims Act. There may also be others liable, but that is for another case and another time. We think that we have to point out to the Court serious errors in the government's argument and errors in the government's brief. On page 3 of the government's reply brief they say there is nothing that indicates that the design of the Boeing 707 was defective. I do not know where they have been in the years that this case has been prosecuted because contrary to their statement there is not testimony whatsoever that the lavatory trash container involved in the 707 crash and burn in Paris could contain or meet the requirements of 4(b)381(d), and all of the knowledgeable witnesses agree that the containers were defective. The NTSB sent an investigator, Mr. Kapustin. Mr. Kapustin looked at what was left of this, looked at several other 707's and he came to the conclusion as set forth in the appendix at page 128 that it needed no expert opinion. You did not even have to be an expert. It was a simple open and shut situation. The compartments did not meet the requirements. They were not capable of containing fire or smoke. Mr. Nelson, the FAA's own top person who has been deposed in this case, states that the odds are extremely small that any of the items, that is, any of the 707 ever manufactured after the type certification were not of type design, and the lavatories had been approved that way with the defect in them in the beginning. They were not in compliance with the regulations. These things all appear in his deposition--
Harry A. Blackmun: I suppose it is the inevitable cigarette disposal.
Richard F. Gerry: --It has been, Your Honor. Hopefully some day we will not have cigarettes on airplanes. At the present time because of this and other cases we have new placards. We have an ashtray outside the lavatory as you enter. All of that occurred probably because of this case. Unfortunately sometimes we make these advancements over the dead bodies of the people who suffer from the defective product to begin with. In order to look at this case, I would like to with the Court look just a little bit at the process that is involved here. The Federal Aviation Agency... Administration now... has taken over over the years the entire certification process including the final process in the inspection. Now in the government's brief... You may be mislead if you read the brief into thinking that the manufacturing inspector is a representative of the manufacturer. In their brief they suggest that the primary responsibility for all of this remains with the manufacturer, and they cite a statute and a regulation and then go on to say, "Finally, the Agency's operating manual has always stated it is the primary responsibility of manufacturing inspectors to determine that prototype products conform with safety requirement. " In turn, the FAA is merely empowered to make safety inspections. But the manufacturing inspector is an FAA employee who is there in the manufacturer's plant and who according to their manual must... as they say has the primary responsibility of the manufacturing inspector to determine that prototype products conform with drawing specifications and evaluated. The manual from 1957 which applies is on file to the Court and clearly shows that they have to look at every process and that in this case they did look at every process but missed this one. Once there is a type certificate issued--
Warren E. Burger: On your theory as I understood your previous response, Mr. Gerry, 25 years after the airplane was built or 30 years the United States could be liable if it falls in Venezuela or Zambisi or some other place. If it is a design certification.
Richard F. Gerry: --If they were negligent in the beginning, if the manufacturer was negligent in the beginning, they could if that negligence then became operative at that point. Now, in the case of the Boeing 707 all of the aircrafts were manufactured according to the type certificate, and the type certificate permitted huge holes in the lavatory trash container which caused a chimney effect to take the smoke up into the overhead and carry it forward to the pilot's compartment. Those holes were part of the type certification of the aircraft. Once you get a type certification if you are an aircraft manufacturer you certainly do not want to get back in the mess of bureaucratic bumbling that you were in before and attempt to change that certificate. You cannot make a single change in the aircraft without getting the kind of supplemental type certificate that is involved in the other case, in the United Scottish case where in order to change anything you have to go there. So once you have got it through all of the design and engineering changes you set in concrete the bad aspects of the design as well as the good aspects. We sometimes find ourselves flying with obsolete unsafe or less safe parts of aircraft because it is so economically and otherwise difficult to get a change. There are those who believe that--
Byron R. White: Well, you do not suggest it would have been difficult to... If you think this is such a glaring, obvious defect you would not think it would have been very hard to get a change.
Richard F. Gerry: --No, I do not think so in this case, Your Honor, but the incentive is gone. Once you've got a type certificate you remove the incentive to go forward and to continue to change. The incentive is to produce what has already been authorized.
Byron R. White: Well, I suppose there is some incentive to produce a safe aircraft.
Richard F. Gerry: Yes. That is why we have supplemental type certificates and that is why there are issuances of supplemental type certificates.
Lewis F. Powell, Jr.: You have to have proof of negligence, do you not?
Richard F. Gerry: Absolutely. There is no product defect in the sense of strict liability. We need to prove to a federal judge sitting without a jury--
Byron R. White: That a reasonable designer should have known this was a bad deal.
Richard F. Gerry: --That is correct. We have done so. We have done so twice in the United Scottish case.
Lewis F. Powell, Jr.: If technology developed subsequent to the original inspection and certification, it was not generally known at the time of the certification, that would not be the sort of case that you bring here.
Richard F. Gerry: No, state of the art has always been a defense to a negligence action even if not to a strict lability action. In fact, Your Honor, no knowledgeable attorney would bring an action against the United States at all if there was any other way to go, and wind up here 15 years later or wind up here 10 years later without even having had a case tried. No, as long as there is another economically viable defendant we will go the other way.
Byron R. White: The manufacturer was not available?
Richard F. Gerry: The manufacturer in the United Scottish case went out of business and had only $100,000 worth of insurance. The manufacturer in the Varig case settled the cases with some of the passengers on the aircraft. The government's brief suggests that in order to rely on the Good Samaritan Doctrine we have to prove that our decedents would have foregone alternative safety precautions. I do not know where they get that and they cite not authority for that novel statement of law. My understanding is that what is necessary is to show that there was reliance by the people, not that they have to forego, and in this case... in the United Scottish case there is a finding of the court below of specific and general reliance by the decedents and by the survivors.
Thurgood Marshall: You mean the average person that rides on a plane is familiar with this statute?
Richard F. Gerry: I think the average person that rides on the plane anyplace in the United States and the world, Justice Marshall, is familiar with the government's involvement in the aviation industry, that they--
Thurgood Marshall: That the government has to inspect every piece of that plane?
Richard F. Gerry: --I do not think that is so, nor do I think--
Thurgood Marshall: Well, you just said so.
Richard F. Gerry: --Well, no--
Thurgood Marshall: You said the inspection examines every piece of the plane.
Richard F. Gerry: --I said that.
Thurgood Marshall: Well, does the average airplane rider know that?
Richard F. Gerry: I do not think that--
Thurgood Marshall: If so, take me out of the group.
Richard F. Gerry: --I do not think--
Thurgood Marshall: I did not know it until this case was filed.
Richard F. Gerry: --I do not think they do, nor did I intend to say that they knew that. What I intended to say, Your Honor,... I am sorry if I expressed myself badly... was that the average person riding in an aircraft is aware of the role of the government in the process of aviation, that they are involved. Also, under the restatement of torts--
Thurgood Marshall: Who that rides a plane has read that book that you just read from, the one where you say the inspector does this?
Richard F. Gerry: --The owner of the aircraft--
Thurgood Marshall: What is the name of that book?
Richard F. Gerry: --This is the manual procedure type certification--
Thurgood Marshall: Does the average plane rider know anything about that book?
Richard F. Gerry: --No, But the owner--
Thurgood Marshall: Has the average rider ever heard of that book?
Richard F. Gerry: --I do not believe so, Your Honor, no. The owner of the aircraft does, and under the restatement of torts section 324A(b), there does not need to be reliance by the average rider of the aircraft. There needs to be reliance only by the owner of the aircraft and in--
Thurgood Marshall: Why don't you argue that? You said everybody knows.
Richard F. Gerry: --I did not mean, Your Honor, actual knowledge of each and every particular. I am sorry if I was found to mislead the Court in that. Also the government is liable if it increases the risk of harm, and in that regard I think that there is a misunderstanding of what that term means. It is not the risk in putting out an aircraft that is less airworthy, but it is the risk of having that aircraft on the market at all. If the government does their job properly, the government inspectors, the aircraft would not be on the market with the defects in it and, therefore, the risk to the general public including our decedents is greater than it would be otherwise. There was a statement by counsel that after there is the issuance of the type certificate there are no further inspections of the particular aircraft by the FAA. That, although it is not extremely important to the decision here, is not the total fact in the case. There are additional inspections if there are supplemental type certificates as there were in United Scottish and there was such an inspection so held. The government has raised a number of defenses in the case including negligent misrepresentation. We had thought that that had been put to rest in Block v. Neal, and the government had said in their reply brief in the petition for certiorari that unless there was proof that the persons in this case had relied on the certificate itself that the misrepresentation defense would not apply. There is no proof in the case that any of the passengers ever saw or relied upon the certificate itself or on the Airworthiness Certificate that was carried in the airplane. We believe, Your Honor, that the record adequately shows and it has been found in the case that was permitted to go to trial that the government inspectors at the operational level were negligent, that their negligence was a proximate cause of the deaths and destruction of the aircraft here, that that gives rise to liability, that it does not bring into play because of the operational level the descretionary function exception to the Federal Tort Claims Act, and that when the government asks this Court to become the protector of the treasury they should instead go as they were instructed to do in the Indian Towing and Rayonier cases to the Congress and have congressional changes in the bill. If Congress did not wish to have liability in these cases it can change, and if the Federal Aviation Agency does not wish to be sued in these cases, it does not have to be--
Warren E. Burger: Your time has expired now.
Richard F. Gerry: --this much involved in aviation. Thank you.
Warren E. Burger: Do you have anything further, Mr. Geller.
Kenneth Steven Geller: Just a few things, Mr. Chief Justice. I am afraid I do have to respond to certain of the misstatements that Mr. Gerry made. Let me just respond first to one of the last things he said. Respondent said he does not know where we got this notion that under the Good Samaritan Doctrine the reliance aspect requires a showing that other ways of protecting one's self were not exercised. Let me just refer the Court to the note E to section 324(a) of their statement of torts which says, "The reliance must have induced the defendant to forego other remedies or precautions against the risk. " We cite this in our brief along with cases that have interpreted that provision that support our statement. The Respondents have assured this Court that it need not worry about the peculiar result in this case because the Plaintiffs will always have to show negligence. Let's be clear what that means. There was no proof in this case, nor could there be in any of these cases that a particular FAA inspector went in, looked at a particular aircraft and determined that it was all right whereas the safety standards show it was not. The proof in these cases as in this case in particular was the following: An inspection had to be made according to the Ninth Circuit before a certificate could be issued. A certificate was issued. Subsequently, it was determined that the plane was not in compliance with some safety standards. Therefore, the government had to be negligent in conducting its inspection. It is a res ipsa theory. Now it falls down for a number of reasons, one of which is that it is based on this fallacious assumption that the government has some obligation under the statute the do a head to toe inspection of every airplane. I think it is important that the Court realize that that is simply not true under the statute or regulations. The FAA has never done anything more than conduct spot checks in particular cases, and it reserves the right in any particular case to inspect any part of the airplane. It has no obligation under the FAA Act or the regulations to do so. There was also a grudging admission from Mr. Gerry that the manufacturers do in fact have a nondelegable duty to make an inspection of every part of their equipment to make sure that it is in compliance with the safety regulations and that they can be sued. In this case, for example, Varig did sue Boeing. The passengers did sue Varig and Boeing. Aerodyne was sued. This, I think, precisely shows the distinction between these sorts of regulatory cases and the operational cases that I was referring to earlier because in the operational cases the United States is the only possible defendant, and the Court referred to this, for example, in Rayonier in pointing out why the operational activities in that case were not immune from suit under the Federal Tort Claims Act, one of the things that the Court said was that if the United States, which performed these operations, could not be sued, the plaintiff could not sue anyone. But in these regulatory cases there will always be by definition a private party, a manufacturer, an operator, or an installer that will have failed to comply with the safety standards, and that operator or manufacturer is liable to people who are harmed. This is a suit against the United States for damages because the United States did not exercise its regulatory authority to make certain that that manufacturer or operator complied with the statute. Finally, while it may not be terribly significant here I cannot let the record reflect that there was, in fact, negligence in the issuance of the type certificate for that Boeing 707. There is zero proof in this record that the type certificate was in any way faulty. If in fact--
William H. Rehnquist: Did the District Court make any finding?
Kenneth Steven Geller: --That case has not yet gone to trial.
William H. Rehnquist: Oh, the Varig case.
Kenneth Steven Geller: The Varig case has not yet gone to trial, but Mr. Gerry has asserted that it is undisputed that there was negligence in that case. That is disputed. If in fact the 707 that crashed in 1973 had a defect it is far from clear that it was a design defect rather than a production defect or a maintenance defect. Varig completely refurbished the inside of those planes after it took them out of the United States in 1969. So those are the sorts of problems that would arise in cases like this. There will never be proof of actual negligence. It will be a res ipsa theory, and this ties in with our argument that these are in fact discretionary determinations because under the statute it is clear that the FAA has complete discretion, which airplanes to inspect and how thorough that inspection should be.
Byron R. White: Well, not at the type stage.
Kenneth Steven Geller: At the type stage, Justice White.
Byron R. White: Well, now, not then.
Kenneth Steven Geller: Even then, Justice White.
Byron R. White: So you disagree with your colleague?
Kenneth Steven Geller: Yes, we do. Nothing has changed since 1958. Designated engineering representatives who are not FAA employees who by and large work for the manufacturer have the obligation to inspect the airplane to make sure it is in compliance with the FAA regulations, and the FAA reserves the right to make spot checks.
Byron R. White: They do not have any discretion as to whether to have an inspection. It is just who has to do it.
Kenneth Steven Geller: The regulations make clear that it is the manufacturer that has no discretion whether to make the inspection. We do not dispute that. The manufacturer has an obligation to inspect its products carefully.
Byron R. White: But the FAA cannot issue a type certificate without there having been an inspection by somebody.
Kenneth Steven Geller: That is true, but that is far from saying--
Byron R. White: I am just saying that part of it is not discretionary.
Kenneth Steven Geller: --Well, but that is also not the basis for the Respondents' suit in this case. They are not suing us for an invalid inspection performed by Boeing. They are saying the United States was negligent in not conducting a careful enough inspection, and what we are saying is that the decision whether to inspect and how careful that inspection should be under the statute is discretionary.
Byron R. White: Is there not evidence as to... There is no evidence in this record as to who made the inspection in this case?
Kenneth Steven Geller: In which of the two cases?
Byron R. White: In either one of them?
Kenneth Steven Geller: That is correct. That will be the case in all of these sorts of cases, and that is one of the problems in allowing suits like this to proceed because the United States is not engaging in operational activities. It's merely engaging in regulatory activities to make sure that other people, the private parties--
Byron R. White: I would think in a good many cases you could discover who actually made the inspection.
Kenneth Steven Geller: --Well, even if you could, Justice White, the problem is you will never be able to know precisely what they inspected because they only have a duty to spot check. They may check off a box saying they inspected the fuselage but that will not tell you whether they looked at any particular part.
Byron R. White: Well, that is not true at the type stage, is it?
Kenneth Steven Geller: Yes, it is, Justice White. In fact, it is most true at the type stage because at the type stage the FAA frequently will get hundreds and hundreds of thousands, especially for an airplane like the 707, of documents, and it could not possibly... the FAA only has about 300 inspectors... it could not possibly at the type stage inspect every portion of every airplane. That is the responsibility of the manufacturer and the designated engineering representative who works for the manufacturer. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.