Earl Warren: Number 672, United States versus John P. King. Mr. Ruckelshaus.
William D. Ruckelshaus: Mr. Chief Justice and may it please the Court. This case involves the applicability of the declaratory judgment statute to the Court of Claims. The decision of the Court of Claims was that the declaratory judgment statute, the federal declaratory judgment statute was applicable in this case. Statement of the facts of this case I think would be in order in order to set the state for this decision. Colonel King who was the respondent in this case on May 14, 1959 was found physically unfit for active duty by the Army Physical Evaluation Board. On June 18, 1959, this decision was reviewed by the Army Physical Review counsel and that body found King fit for duty. The latter decision was upheld by the Army Physical Disability Appeal Board on July 21, 1959 and King was retired for longevity on July 31, 1959. In August of 1959, King filed an application for correction of military records with the Army Board for the correction of military records. A hearing was held in January of 1961 and the application was formally denied by the Under Secretary of Army on May 19, 1961 that ended King's procedure in the Army Appeal Boards. On July 26, 1965, respondent King filed a petition in the Court of Claims alleging that the action of the Under Secretary of Army was arbitrary and capricious in contrary to law and demanded judgment in an amount equal to the taxes paid on his retirement since 1959. Now, the difference between the retiring for longevity and for disability now was that he would've been paid 75% of his full pay as a Colonel in both instances except that if he had been retired for disability he would not have to pay any taxes on that retirement pay.
Potter Stewart: It's wholly exempt from tax, is it?
William D. Ruckelshaus: Yes, that's right Mr. Justice.
Potter Stewart: If it's disability retirement.
William D. Ruckelshaus: Pursuant to the Government's motion to dismiss and it asserted affirmative defense, the Court of Claims dismissed respondent King's petition on the grounds that petition was basically a claim for a tax refund. And since King had failed to file a refund with the Internal Revenue Service he was barred from asserting it in this suit pursuant to Section 26 U.S.C. 7422 (a). The Court further stated on its own motion that the only basis for maintaining this action was under the Declaratory Judgment Act and gave plaintiff King -- respondent King in this case 30 days to file a brief on the applicability of the Declaratory Judgment Act to the Court of Claims. After briefs were filed, the Court ruled on February 16, 1968 that the Declaratory Judgment Act did apply to the Court of Claims and further the Court gave King 30 days to amend his petition and seek a declaration, “a declaration of his right to be retired for disability and to have his military records change.” It was from this order of the Court of Claims that the Government has sought in this Court granted certiorari to the court below. Now, this case in its broader sense I think involves the question of whether the power and authority of the Court of Claims should be appreciably increased with reference to suits against the United States without any additional grant of power or authority from Congress. I think specifically the question before the Court is whether the Court of Claims in this case or indeed in the broader sense in any case as the jurisdiction or power to enter declaratory judgment and I might say that the Court of Claims for the first time is saying that cases which have a money cast or which are money-related or which are money-oriented confers jurisdiction upon that Court to grant declaratory judgment. I think that at the outset it can be stated that it is agreed on the part of the Government and on the part of respondent an amicus that the declaratory judgment statute itself confers no jurisdiction on the Court of Claims or indeed on any court by its own terms. I think the statute speaks of the power of a United States Court to declare the rights within its jurisdiction. So the jurisdiction for this Court of Claims to enter this declaratory judgment had to be found somewhere else.
Earl Warren: We'll recess on Mr. Ruckelshaus. Mr. Ruckelshaus, you may continue with your argument.
William D. Ruckelshaus: Mr. Chief Justice and may it please the Court. When the Court adjourned, the argument had just been put forward that there was no dispute between the petitioner and the respondent in the amicus or the court below for that matter as to whether the declaratory judgment statute itself conferred any jurisdiction on the Court of Claims to hear or to have the application of declaratory judgment statute applied to that Court because the statute itself says that they only have the power or right to declare rights within its jurisdiction so that that phrase within its jurisdiction means they must find this jurisdictional grant somewhere other than in the Court of -- the declaratory judgment statute itself. And where the respondent and the court below looked to find that jurisdiction is in the Tucker Act and the Tucker Act by its terms according to the court below on the opinion at page -- appendix on page 32. Now, the Court said that Mr. King could seek declaratory relief even though he was “unable to obtain or request a money judgment.” And the Court then went on to say that the declaratory -- the Tucker Act granted judgment in a case of this nature because of the money cast or money orientation or a money relatedness of the claim. Now, that is the contention of the Government that this flies in the face of the traditional grant of jurisdiction to the Court of Claims. It flies in the face of the years of statutes and years of decisions that have been handed down restricting that jurisdiction to claims and which a money judgment could be awarded. Now, this Court itself in Glidden versus Zdanok said that from the beginning “from the beginning” that meaning the Court of Claims has been given jurisdiction only to award damages not specific relief. I think that the argument of the Court of Claims below seeking to restrict this jurisdictional grant or broaden this jurisdictional grant into areas where there was a money cast or money orientation or money relatedness again flies in the face of this statement from Glidden versus Zdanok. Now, the court below originally dismissed this action on the grounds that it was a claim for a tax refund and said that since the plaintiff of the respondent herein had not filed a tax refund claim pursuant to 26 U.S.C. 7422 (a) that the Court had no jurisdiction. Now, then, the Court invited the plaintiff to file a declaratory judgment and the plaintiff filed a declaratory judgment alleging essentially the same things and in his filed the brief favor of filing a declaratory judgment and when eventually it filed -- amended the petition. Now, the plaintiff asked for essentially the same thing that he had asked for in his original petition. Now, the only difference being that it was phrased in terms of a declaration of his rights. Now, I don't see how the Court of Claims can be said to have expanded its jurisdiction under Declaratory Judgment Act simply because the claim itself as filed or the petition as filed was stated in a different way. They really they released that the petitioner was seeking, the plaintiff was seeking herein was pretty much the same thing that he was seeking under his original claim. I think the question of whether it's a tax question or not, the original petition as filed really does not concern this Court because if the claim as originally filed or was a tax question if it was a petition to recover tax money then clearly the Court is without jurisdiction to entertain this under Declaratory Judgment Act because the Declaratory Judgment Act specifically precludes suits with respect to tax.
Thurgood Marshall: Didn't Judge Davis said, the real question was the army regulations and not revenue code?
William D. Ruckelshaus: Yes Mr. Justice Marshall, he did say that the real question was the army regulation but I think he was forced to make that statement because he had already ruled prior to that time that this was essentially a tax refund claim. And so if he said that it was a -- it had to do with the eventual tax refund then he would be faced with the same section of 28 U.S.C. 7422 that he had dismissed it on previously. Now, if he then turns around and says as he did on the last page of his opinion that the only question before the court below is the question of whether this man was properly retired, then I think he loses the money cast or money orientation or money relatedness of this claim which he says it's necessary in order to confer jurisdiction on that Court.
Thurgood Marshall: And it's your position therefore loss of jurisdiction?
William D. Ruckelshaus: No, the minute he said that the sole question before the Court had to do with whether the man was properly retired.
Thurgood Marshall: He didn't say sole, he said the controlling as I've got (Inaudible)?
William D. Ruckelshaus: I think he -- that's the last part of his opinion. He said the question before the Court in the declaratory judgment action that was filed and he said on page 40 of the appendix the only question he presents or need present relate to his retirement from the army.
Thurgood Marshall: Yes.
William D. Ruckelshaus: And those are the only issues with which this Court will treat in its further proceeding in this case. I think that's once he has said that, he has lost his argument that confer to jurisdiction in the first place that this case had a money cast to it or money orientation. I don't think it's enough that you can say somewhere in the future way down the line. The petitioner herein may be entitled to some money. Now, this I believe what include virtually every case that was filed in any court.
Byron R. White: Now, why is it that he couldn't have said in the Court of Claims that United States made a mistake in retiring me and put me in the wrong category and by reason of that mistake I am out some money and that the United States told me that money for having cause me to pay it out when I shouldn't have. Now, what's wrong with that claim?
William D. Ruckelshaus: Mr. Justice White, I think that the original --
Byron R. White: Do you think that's just a tax refund claim?
William D. Ruckelshaus: That's what the court below held in its original order to dismiss the --
Byron R. White: Well, I know but he says if I were in the right category why if I were retired in the right category, well of course I owe those taxes and as long that classification stands then why I did all the taxes but I want to get rid of the classification. I certainly can't do it in the tax refund suit. Now, but he'd listen to me in the tax refund suit to review this classification question, this is the only place I can go to have this classification reviewed and this is what's cause me the money. Why do you suppose that -- why would that be thrown out of the tax refund claim or as beyond the jurisdiction of the Court of Claims?
William D. Ruckelshaus: I think on basis of Prince against United States, Mr. Justice White, the Court therein entertained a very similar fact situation herein in which Prince had filed a petition for tax refund with the Internal Revenue Service before bringing his suit to determine whether he was properly retired. And on the basis of that case which the Government does not completely accept by the way, the Court of Claims then when they had to decided Prince's case but in this instance why King did not file a petition for tax refund --
Byron R. White: Do you think in a tax refund suit that in an ordinary tax refund suit that this officer could've had had litigated the correctness of his retirement?
William D. Ruckelshaus: I don't believe that he could've had litigated or he could've had the determination made by the Internal Revenue Service as to whether (Voice Overlap).
Byron R. White: Or in that kind of a suit?
William D. Ruckelshaus: Well, in Prince against United States, Mr. Prince did just that Mr. Justice White. He had his determination as to whether he's properly retired.
Byron R. White: In the tax refund suit?
William D. Ruckelshaus: In the tax refund suit in the Court of Claims.
Byron R. White: Well, in the Court of Claims, yes but how about the Internal Revenue Service that we won't look at that, you just know the tax if he -- could he get adjudicated in the District Court you think?
William D. Ruckelshaus: Well, if Prince is a proper holding and as I say we have some question about that. I don't see any reason why he couldn't because the district courts have concurrent jurisdiction in tax refund claims. In addition to that I think that clearly King could've brought a mandamus action against the Secretary of Army under 28 U.S.C. 1361 and requested a mandate against the Secretary of Army to change his records pursuant to an arbitrary and capricious decision made by the Secretary of Army. I think he could've got such a suit in a District Court or could've got such relief in the District Court. He did not seek such relief in the District Court. Clearly, he could not get that relief in the Court of Claims because our case is specifically holding tht mandamus does not lie although I think in this case what the Court of Claims is in effect doing -- is doing indirectly what they can't do directly and that is by declaring the rights of King in effect mandating the Secretary of the Army to change his records. Certainly, if King then went into the District Court against the Secretary of Army the decision as to whether he was properly retired would've been collaterally -- the doctrine collateral estoppel would apply to those issues in the District Court. So I think King had some additional remedies here to the one that he tried but that he chose this method in the Court of Claims at the invitation of the Court of Claims.
Hugo L. Black: I don't see your Prince case cited in your brief, is it?
William D. Ruckelshaus: I believe it is, Justice Black.
Hugo L. Black: I didn't see in the index.
William D. Ruckelshaus: It's cited on page 2 of Justice Davis' opinion Mr. Justice Black, its 127 Court of Claims 612. I think that the argument that is advance by the respondent having to do with legislative history of Declaratory Judgment Act and of the 1948 recodification of that Act has a very little to do with the determination of whether the Court of Claims has jurisdiction over this case in the first instance. And I think the most that can be said for their legislative history argument is that you can show from this history that Congress did not even consider the Court of Claims in enacting the declaratory judgment statute. And that I would emphasize to the Court that we are not saying that the declaratory judgment statute specifically excluded the Court of Claims from its operation. I think this is the thrust of the argument of the respondent here that the Government insists that the Declaratory Judgment Act statute specifically excluded the Court of Claims. We do not insist that I think that what we do say is that before the United States Government consist to be sued or before sovereign immunity is waived there must be a clear and expressed statement of that waiver on the part of Congress and that there is no such clear and expressed statement either in the declaratory judgment statute or in the Tucker Act. And that without such a clear expresses statement the argument sovereign immunity has been waived in this case simply cannot stand up.
Byron R. White: What made you to the Tucker Act after the waiver as the immunity by the United States to the extent you concede United States waiver?
William D. Ruckelshaus: The Tucker Act states its jurisdictional statement. The Court of Claim shall have jurisdiction to render judgment upon any claim against the United States found that either upon the Constitution or any Act of Congress or any regulation of an Executive Department or upon any expressed or implied contract with United States or for liquidated or unliquidated damages in cases not sounding in tort. I think the language that expressly waives it is where the Tucker Act says to render judgment upon any claim. And when the Tucker Act was passed, the reason for the Tucker Act itself was the fact that Congress had been inundated with private bills that took up a good percentage of their time and they wanted this decision to be made by another court and so traditionally the jurisdiction of that court has been limited to hearing claims for money damages.
Byron R. White: Do you think that is harmless just amended the statute, the Tucker Act has said the Court of Claims now also have jurisdiction to adjudicate Declaratory Judgment Act, he made it to money claim and that would be (Inaudible)?
William D. Ruckelshaus: I think that would be clear enough Mr. Justice White that --
Byron R. White: But what will Declaratory Judgment Act (Inaudible)?
William D. Ruckelshaus: The Declaratory Judgment Act simply said that any court of United States may -- has the right to adjudicate --
Byron R. White: Has jurisdiction?
William D. Ruckelshaus: -- within its jurisdiction, he didn't say it didn't speak in jurisdictional terms. It was the creation of additional remedy.
Byron R. White: Well, it did speak about cases otherwise within its jurisdiction.
William D. Ruckelshaus: Within its jurisdiction what it said that the court could issue a declaratory judgment in a case or controversy within its jurisdiction. And in this, I think that means you must find the jurisdictional grant in some statute other than the declaratory judgment statute and that's why the Court of Claims in the respondent herein is seeking to find that jurisdictional grant in the Tucker Act.
Byron R. White: Well, when Declaratory Judgment Act was passed, what was wrong with Declaratory Judgment Act?
William D. Ruckelshaus: Well, I think the primary question was one of rightness prior to the Declaratory Judgment Act and there were many -- you had to do with a rightness of a claim that some -- there were many purposes that it was primarily to decide controversies between private individuals that had not reached the degree of rightness in which a suit could normally be brought. And that someone did not need to act of their parallel or did not need to avoid act being for fear of the consequences when they could get their rights determined in advance of having the act. I think that was the original purpose of declaratory judgment statute.
Byron R. White: There isn't -- there wasn't jurisdictional power regarding the (Inaudible)?
William D. Ruckelshaus: Well, I think that there was a problems of rightness and problems of whether the controversy had ripened enough to be determinable by a court, justiciable by a court and that prior to the enactment of the declaratory judgment statute many cases were dismissed for being premature and that many activities on the part of private individuals were inhibited because they could not get their rights determined prior to the time that they acted.
Byron R. White: Do you say that the Declaratory Judgment Act didn't help the Court of Claims in declaratory judgment situation because the claim became once and otherwise this jurisdiction in the first place.
William D. Ruckelshaus: I think that's right Mr. Justice White.
Byron R. White: Because of the lack of waiving.
William D. Ruckelshaus: Because there has to be a waiver somewhere or consent to be sued in all that the Congress has ever consented in this area was that the United States could be sued in the Court of Claims for money damages.
Byron R. White: For right of claims and consent of money damage suit would only mean that the claim is sufficiently right.
William D. Ruckelshaus: Well, I think it goes further than that because if you are to say that the Court of Claims has the power to grant declaratory judgment in areas where the claim is not right, these means that under the general grant of the Tucker Act to determine controversies in regarding governmental regulation and this amounts to a considerable increase in power in the Court of Claims whether you call that additional remedy or additional jurisdiction. Now, that was not otherwise have.
Byron R. White: Because I understand your position you do not claim that the Declaratory Judgment Act on its face in speaking of the Courts of the United States excluded the Court of Claims?
William D. Ruckelshaus: That's right.
Byron R. White: That within the word “courts” is included the Court of Claims but the Act doesn't give the Court of Claims the privilege of doing something that wasn't doing before because it didn't have jurisdiction to do so --
William D. Ruckelshaus: I think --
Byron R. White: -- to issue declaratory judgment because of lack of consent for the United States.
William D. Ruckelshaus: I think the problem Mr. Justice White --
Byron R. White: But where does the consent of the United States stop in the Tucker Act?
William D. Ruckelshaus: I think it stops when somebody goes into the Court of Claims and request something in addition to a money judgment or other than a money judgment.
Byron R. White: You mean that ask for a declaration about of money judgment but the money judgment isn't right or not, or the money claim isn't right or not?
William D. Ruckelshaus: Well, if the Court, I think the problem is basically is a problem between jurisdiction and remedy and we were talking about sovereign immunity. We can get into a semantic argument on whether the Declaratory Judgment Act simply created a new remedy and had nothing to do with jurisdiction. When viewed in light of the Tucker Act or we can look at the whole situation of the Court of Claims saying they have the power under the Tucker Act the jurisdiction of the Tucker Act to grant declaratory judgment and see that they are exercising considerably more power than Congress ever intended for him to do and that where a court is exercising considerably more power than they did in the past under a court decision as regards United States that before they do that there has to be a clear consent on the part of United States to be sued. And in this case there was not such a consent and there was not such a waiver of sovereign immunity.
Thurgood Marshall: Well, I suppose you could spell out the declaratory judgment involving a matter of dollars and cents would the Court of Claims do?
William D. Ruckelshaus: Well, I think that's exactly what the -- has been done here Mr. Justice Marshall the --
Thurgood Marshall: Or if it involves a matter of dollars and cents, isn't that the Tucker Act? Didn't it say you're limited to dollars and cents claim?
William D. Ruckelshaus: The -- in the declaratory judgment the question of whether any further relief can be granted is a reserve in Judge Davis' opinion and the petitioner herein asked for a money judgment in the form of a declaratory judgment petition and I don't think that traditionally declaratory judgments have been used to grant money judgment and so if and again in this particular case if what they're asking for is a money judgment by the Court's own earlier decision. It is a tax claim and as such specifically not cognizable (Voice Overlap).
Thurgood Marshall: Haven't you run across declaratory judgments and ordinary actions would end up in sizeable money?
William D. Ruckelshaus: I'm sorry I didn't hear your question Justice Marshall.
Thurgood Marshall: Declaratory judgments in ordinary courts, district courts involving hundreds of thousands of dollars, simply a declaratory judgment?
William D. Ruckelshaus: That's right.
Thurgood Marshall: Nothing wrong with that?
William D. Ruckelshaus: No, there's nothing wrong except that the --
Potter Stewart: Except against the United States is that (Voice Overlap)?
William D. Ruckelshaus: Except against in the Court of Claims against United States. Now, there (Voice Overlap) --
Potter Stewart: I thought you said in any court?
William D. Ruckelshaus: Well, I am not maintaining, Mr. Justice Stewart, in any court because they have issued some declaratory judgments under the Admiralty Act and under the Federal Tort Claims Act where the jurisdictional grant to sue the United States is considerably broader than it is in the Tucker.
Potter Stewart: Oh, I remember those cases in your brief at least the admiralty one but I thought your basic claim was that absence on special conferral of jurisdiction that no court not merely the Court of Claims but the District Court didn't have the power to our judgment against the United States?
William D. Ruckelshaus: Well, without some jurisdictional absence, some jurisdictional grant and a clear waiver of sovereign immunity by Congress, yes they cannot have a Declaratory Judgment Act against United States. And we -- it's our contention that under the Tucker Act there is no such a waiver of sovereign immunity. And what the -- I think it's really happening here is that the Court is -- the Court of Claims is reaching out the past judgment on a whole conglomerate of decisions being made by the United States Government in attempting to infuse their jurisdictional power into all areas of governmental problems and governmental decision making that simply was not contemplated with the Tucker Act and does not contemplate in the jurisdictional grant given at Court of Claims.
Potter Stewart: The District Courts have concurrent jurisdiction up to what amount is that?
William D. Ruckelshaus: $10,000.00
Potter Stewart: $10,000.00 and there are several courts of appeals --
William D. Ruckelshaus: That have held that, if they try to found jurisdiction on the Tucker Act that the declaratory judgment action does not lie.
Hugo L. Black: Can the tax court issue a declaratory judgment?
William D. Ruckelshaus: I can't answer that Mr. Justice Black. I'm not -- I can't answer whether they can or not. A District Court -- District Courts have from time to time issued declaratory judgments against United States in specific statutory areas but I'm not aware that it had been issued in the tax court.
Hugo L. Black: What about the Court of Customs Appeals?
William D. Ruckelshaus: CCPA?
Hugo L. Black: Yes.
William D. Ruckelshaus: To my knowledge they cannot either Mr. Justice Black.
Earl Warren: Mr. Kabatchnick.
Neil B. Kabatchnick: Mr. Chief Justice, if it please the Court. It is the respondent's position that the decision below holding that the Declaratory Judgment Act does apply to the United States Court of Claims was correct and that the decision below should be affirmed. The considerations before the Court revealing the correctness of the decision below is readily apparent from an examination of the provisions of 28 U.S.C. 2201 the Declaratory Judgment Act and 28 U.S.C. 451. As the Court is aware the Declaratory Judgment Act says in pertinent of part that any court of the United States in a natural controversy within its jurisdiction may declare the rights and other legal relations of the parties whether or not further relief is or could be sought. Of course the keyword from respondent's point of view is the word “any” any court of the United States. Court will recall that in the original Declaratory Judgment Act passed in 1934 the language of the Act was the courts of the United States and that in the recodification in 1948, the language was changed to read any court of the United States. It would seem that on its face without going beyond the bounds of Section 2201 and examination of that language of that phraseology would readily cause anyone to come to the conclusion that the Declaratory Judgment Act does apply to the United States Court of Claims.
Hugo L. Black: What about the Texaco?
Neil B. Kabatchnick: Sir, I find nothing if following my theory if it is correct in going to the provisions of Section 451 and the term Court of United States as defined there. The tax court is not specifically identified within the language of Section 451 and --
Hugo L. Black: Just one of any court?
Neil B. Kabatchnick: Sir?
Hugo L. Black: I'm under the terms of any court, wasn't it?
Neil B. Kabatchnick: If as a Court of the United States I would think that it is but it's not expressly identified within Section 451 which --
Potter Stewart: Well, it's not covered by the definition, is it because it says --
Neil B. Kabatchnick: No, sir.
Potter Stewart: -- has a catchall on the end any court created by Act of Congress the judges of which are entitled to hold office doing good behavior and tax court judges serve for term of years not during (Inaudible). So it would not be included.
Neil B. Kabatchnick: Yes, sir.
Hugo L. Black: What about the Court of Customs?
Neil B. Kabatchnick: Yes, sir. That is expressly if my -- if respondent's theory is correct it would apply to the Court of Customs Appeals which is expressly stated in Section 451 as being within the term “Court of the United States.” As I indicated earlier if it was believed that we would have to go outside the bounds of Section 2201 to find a definition of the term “Court of the United States” as respondent has pointed out we could go to Section 451 of Title 28 which defines Court of the United States. And within that definition of course there is the term or the designation of the Court of Claims in expressed language. Now, I believe it is significant that at the time of the original passage of the Declaratory Judgment Act in 1934 in many of the decisions holding that the Act did not apply to the United States that the expressed statutory definition of a Court of the United States was not contained explicitly in the judicial code. Therefore, I believe the Court need not go beyond an examination of the terms of Section 2201 and Section 451 to find expressed language indicating that the Declaratory Judgment Act does apply to the United States Court of Claims. Now, considerable discussion was made of the matter of the waiver of sovereign immunity which would permit the declaratory -- the United States Court of Claims to apply that procedural remedy and proceedings within its jurisdiction. I submit that Section 1491 the Tucker Act is the waiver of sovereign immunity is this statute which permits the United States Court of Claims to apply the procedural remedy accorded by the Declaratory Judgment Act to proceedings within its jurisdiction. As the Court held in the Aetna Life Insurance Company versus Haworth at 330 U.S. 227 in 1937, the operation of the Act is procedural only. As the Court in the Scaly Oil case said it does not enlarge the range of remedies. It does not expand the jurisdiction of the Court. And I think it's quite significant in assessing the merit of the decision of the court below that the court and respondent respectfully invites of the Court's attention to the language in the Scaly Oil case where the court said that before the Declaratory Judgment Act, the federal court would entertain a suit on a contract only if, and this was a contract action if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction. Then the Court went on at page 671, 672 to say, the Declaratory Judgment Act allow the relief to be given by way of recognizing the plaintiff's right even though no immediate enforcement of it was earnest. And I think this is the essence of the holding of the court below. I would like to point out in connection with Mr. Ruckelshaus' argument that examination of the order entered on February, I believe it was February 10, 1967 which is set out in the appendix. I believe at page A-12 that the Court of Claims did not dismiss the respondent's original petition and did not dismiss it on the grounds that it was a tax refund case. The Court said so far as it appeared at that time that appears at the only possibly basis that the United States, the action could be maintain was under the Declaratory Judgment Act, leave was given to file briefs and argue the matters no matter was argued and ultimately the Court rendered the decision below that it's before the Court's consideration today. So if the Court did not dismiss the action below as a tax refund case. Now, I think it's extremely significant here to understand and there are some intricacies, the operation and the theory of respondent's case below. Respondent has persistently as the record in this case shows and the briefs below, the briefs here that this is not a tax refund case. Respondent's claim is a claim for physical disability retired pay which put for the action of the Secretary of the Army before July 31, 1959 the day of retirement and but for his actions afterward where he sought administrative relief, that the respondent would've been paid physical disability retired pay. The gross amount of which is the same, 75% whether by disability retirement or by longevity. However, if he had retired for physical disability in July 31, 1959 he would've receive 75% the total amount due him, his basic pay provided by statute. If he had been retired by reason as he was here for longevity, a portion of that 75% was deducted by operational law as and it happens here to be income tax. Now, the respondent went to the Army Board for the correction of military records under 10 U.S.C. 1552 in August of 1959 asking that his records be corrected to show that he was retired by reason of physical disability. As pointed out and I would particularly and respectfully invite the Board's attention to the subject matter of footnote 4 on page 4 of respondent's brief where the respondent has endeavored to specifically identify what would've happen had his records been corrected. If the respondent's records have been corrected in 1961 pursuant to his application, his records by operation of law under 10 U.S.C. 1552 would've been corrected to show that he was retired by reason of physical disability. In other words, not for one second would the respondent by operation of law under 1552 ever have been deemed to have been retired for longevity. His records would have been in all records of the Department of the Army would have been corrected to show that for all times, for all purposes he had been retired by reason of physical disability. As a result of such a correction of the record as respondent has endeavored to point out in this footnote. The Department of Army under 10 U.S.C. 1552 (c) by that statute from current applicable appropriations of that Board, Department of the Army, funds would have been used to pay the full 75% or that amount that would have been due him would've been paid out of army appropriations. And evidence of this is indicated of how this operates has indicated in the Darby case, Darby versus the United States which respondent has cited in the footnote below. And --
Potter Stewart: You say the amount in this footnote would coincidentally have equal the amount of taxes without --
Neil B. Kabatchnick: Yes, sir.
Potter Stewart: -- it's not coincidentally it's -- that's because that's the difference, isn't it?
Neil B. Kabatchnick: That's the actual (Voice Overlap) --
Potter Stewart: Not coincidence?
Neil B. Kabatchnick: My choice of words might have been --
Potter Stewart: Yes, but you mean it comes out of army appropriation it's not a --
Neil B. Kabatchnick: Yes, sir.
Potter Stewart: Not the out of or whatever source or tax refund comes from?
Neil B. Kabatchnick: Yes, Justice Stewart. And it is on this theory that plaintiff or respondent below filed this action for physical disability retired pay and I might point out also that had -- if these were deemed a tax refund case, it was respondent's position below and respondent's position here that going to the tax and making application for tax refund would be a futile gesture on the part of respondent because the Commissioner of Internal Revenue does not have jurisdiction to assess whether or not this man was physically disable at the time of his retirement in 1959.
Byron R. White: Well, what if he brought suit in a District Court for a tax refund which I suppose he can do, couldn't he?
Neil B. Kabatchnick: He would first --
Byron R. White: To bring the suit he might not want. He could bring -- could he present the claim and have it adjudicated that he had been misclassified upon retirement?
Neil B. Kabatchnick: He could've brought an action Justice White in the form of a declaratory judgment action to have his --
Byron R. White: What about a tax refund suit?
Neil B. Kabatchnick: He would first have to file his application for refund but this is not and I respectfully submit --
Byron R. White: Alright, he files an application for a tax refund that is rejected?
Neil B. Kabatchnick: Yes, sir.
Byron R. White: Then he sues in the District Court for tax refund?
Neil B. Kabatchnick: This could possibly to be done and this was --
Byron R. White: And then he would claim that I am entitled of the tax refund because they put me in the wrong category.
Neil B. Kabatchnick: But the Court I don't think the Court and I don't think that the Commissioner of Internal Revenue would be a futile act as far as Commissioner of Internal Revenue is concerned because he has no basis for determining --
Byron R. White: Well, I want to know about the Court.
Neil B. Kabatchnick: I don't -- I think that the Court could if this were a tax refund case, I think that or excuse me, no he could not seek a declaratory judgment because he accepted under the exemptions of --
Byron R. White: Well,
Neil B. Kabatchnick: -- Declaratory Judgment Act.
Byron R. White: -- is he asking money? He's asking for a return of taxes he's been paid. He says the reason I'm entitled to it is that I was put in the wrong category and was taxed when I shouldn't have been. So, give me my money back here's the reason, now why can't he have that adjudicated by a judge and why can't the judge say, well the army didn't make a mistake when they retired?
Neil B. Kabatchnick: As I think that a District Court as a disability retirement action could (Voice Overlap) --
Byron R. White: This is in a tax refund suit?
Neil B. Kabatchnick: I don't --
Byron R. White: When he sues for the return of taxes couldn't he have adjudicated in that suit the army had made a mistake and once that was adjudicated they have a judgment for taxes he shouldn't pay.
Neil B. Kabatchnick: I do not think that the Court would possibly even reach that question because there had not been a prior adjudication or there would be nothing before the Court as to the merit or lack of merit of the tax refund. And that's why it was respondent's position Justice White that going to the Commissioner of Internal Revenue would be compelling the respondent here to perform a futile gesture because it is not taxes that he is seeking and I –- this has been consistently opposite as the Court of Claims said below, the tax court here are no consequences. The interpretation with tax statute is not in question. It is action arising out of whether or not the respondent here was unfit for general military service or not unfit.
Byron R. White: What would be -- would you think you'd have said something fatal if you have answered me yes?
Neil B. Kabatchnick: Your Honor, I just feel and maybe counsel has failed to convey these thoughts of the Court and I apologize --
Byron R. White: Well, I understand that you say (Voice Overlap) --
Neil B. Kabatchnick: That this is --
Byron R. White: -- but you really weren't interested in the tax refund suit?
Neil B. Kabatchnick: Yes, sir. That's correct. This is not a tax refund suit.
Byron R. White: So you really -- my question is irrelevant but that's a fair (Inaudible).
Neil B. Kabatchnick: Well, I can't if Your Honor I cannot speak with any expertise as to the general nature of a tax refund suit other than as the general term applies if I may use that phraseology sir. If it please the Court, --
Potter Stewart: Did your client go as far as he could administratively?
Neil B. Kabatchnick: Yes, sir. The only place we could go was to the Army Board for Correction of Military Records. That was after retirement prior to retirement there were three stages, the Physical Evaluation Board proceeding, the Physical Review Counsel proceeding and the Disability Appeal Board proceeding. Now, it's prior to --
Potter Stewart: Retirement.
Neil B. Kabatchnick: -- retirement and I believe in the petitioner's brief in their statement of the facts on page 3, they mentioned subsequently. But I noticed that Mr. Ruckelshaus corrected this in his narration of the chronology or what the administrative processes were in the court below.
Potter Stewart: And you fully exhaust them?
Neil B. Kabatchnick: Yes, Your Honor.
Potter Stewart: I mean there's no issue about that?
Neil B. Kabatchnick: No, sir.
Potter Stewart: Between you and your --
Neil B. Kabatchnick: No.
Potter Stewart: -- brother?
Neil B. Kabatchnick: All of the available remedies have been exhausted and proceedings of the correctional records are of course are in the appendix. But I think that basically getting back I think to the basic question here I think that the language of 2201 and 451 are clear that the act does apply as far as waiver of sovereign immunity that this is carried forth in or show by 1491. Now, --
Abe Fortas: Well, I suppose that your position that if the Government says that -- if the statute says its sovereign immunity is waived with respect to this category of claims against the United States then that's a waiver that makes -- that opens the door to whatever remedy a court may apply, is that your position?
Neil B. Kabatchnick: Yes.
Abe Fortas: Now, on the other hand, I suppose that the argument is that the United States waived sovereign immunity but only for purposes of permitting a judgment for money and not for purposes of obtaining declaratory relief.
Neil B. Kabatchnick: That's my understanding.
Abe Fortas: And your position is that once a Government has waived sovereign immunity with respect to a particular subject matter, the restriction on the form of action is of no consequence.
Neil B. Kabatchnick: As to form of action Justice Fortas it would be a consequence but I'm thinking of the language of describing what a declaratory proceeding is that is not a proceeding in equity or a law but a sui generis. It's also been described as a procedural remedy as a remedy I think that you of course must have the basic consent in particular statute such as suits and Admiralty Act.
Abe Fortas: Well, that's really the issue here, it seems to me I'm not sure that I'm help by talking about it in terms of jurisdiction that the question maybe here whether the waiver of sovereign immunity by in the statute which is a consent to be sued for money judgment also operates as a consent to be sued and declaratory judgment action.
Neil B. Kabatchnick: It would be respondent's position Justice Fortas that where you have consent to sue such as in the Tucker Act which gives you the jurisdictional to leave, to proceed for judicial relief that this waiver in the Tucker Act does accord the claimant the right to seek declaratory relief.
Abe Fortas: Oh, yes.
Neil B. Kabatchnick: As the form of action or as incidental portion of his claim, of his monetary claim and as what's stated in the Pennsylvanian Railway Company as a procedural step to the accomplishment or the achievement of the receipt or to be put in the position, I believe it was one of the phrases that Judge Davis used below to be put in the position to have this right, to have a judicial statement of his right to the claim or a recognition of his right to a monetary claim.
Abe Fortas: In short, a declaratory judgment. Well, I'm sure it seem to me it have to take that position. It seems to me that involved in this case are two questions. One, does the Court of Claims -- does the declaratory judgment statute make available as a matter of theory that's sort of a instrumentality that sort of remedy to the Court of Claims? And your argument is that it does and I've listened to that and read what you got to say in your brief. But the next question is when the United States consented to be sued in the Court of Claims by way of an action for money judgment, does that extend, does that consent to be sued also extend to a consent to be sued for declaratory judgment in the Court of Claims in this type of situation?
Neil B. Kabatchnick: I might in response to your second portion of your question, of course the first portion, Justice Fortas my answer is yes that the Act, our position if the Act does apply. As to whether the consent, as I understand your question, where their consent also gives leave to not only seek monetary relief but also declaratory relief, my answer to that would also be in the affirmative for this reason. When the Tucker Act or when the first act of establishing the Court of Claims in 1855 and the 1863 statute, of course we did not have the concept of declaratory relief and also of course when the Tucker Act was passed in 1887 we didn't have that. We didn't have that until 1934 and I believe that taking the history of the Declaratory Judgment Act and the Tucker Act and of course they didn't, when the Congress passed the Tucker Act they did invidious declaratory relief and this is an advent of recent -- comparatively recent advantage. And I think that looking in retrospect especially when it says any claim it does not say a claim for present money due.
Potter Stewart: Just at the verbal level the statute, the linguistic, the semantic level. You don't -- it's not true is it that the Tucker Act does confine itself to monetary claims. It is in the disjunctive. It says any claim against the United States followed upon the Constitution or any Act of Congress or any regulation of an Executive Department.
Neil B. Kabatchnick: Yes.
Potter Stewart: Or upon contract or for liquidated or unliquidated damages in cases other than tort cases.
Neil B. Kabatchnick: That's correct. In fact, in the Jones decision, United States versus Jones which reaffirmed the Lear decision. There was a dissent in that decision that said that even under the 1887 Act that it was the intent of the Congress to go beyond really monetary type of relief in the Court of Claims. And of course our position is that the utility of declaratory judgment as it released to the Court of Claims it would be a procedural step and that there is no limitation in the Declaratory Judgment Act that a consideration of both 2201 and 451 leaves and readily apparent that the decision does apply. Thank you very much.
Earl Warren: Mr. Ruckelshaus, if you have something briefly in closing.
William D. Ruckelshaus: Mr. Chief Justice, may it please the Court. I would just point out at the outset that as to the court decision below to dismiss the case on -- originally on the ground since the tax refund while the dismissal order itself is somewhat ambiguous that Judge Davis' opinion in the record on page 13 clearly states the reasons for dismissing the claim. He says before bringing the suit here meaning King did not however filed a claim with the Commissioner of Internal Revenue for a refund of the taxes paid on his retirement benefits. And since the Internal Revenue Code of 1954 bars a suit for taxes in the absence of the timely refund claim, we issued an order upholding in effect the Government's defense that the petition alleges basically a claim for refund of taxes paid on retirement pay. So the Court I think in its decision did say this was the reason that it dismissed the case as far as the grant, Mr. Justice Fortas, under the Tucker Act of waiver of immunity here, I think that so traditionally the term “claim” has meant money claim and Congress has never overturned that that this Court and the court below should not have overturned this tradition without a clear congressional statement on.
Earl Warren: Very well.


William H. Rehnquist: We'll hear argument now in No. 87-1207, Ray Will v. Michigan Department of State Police. Mr. Burnham, you may proceed whenever you are ready.
William Burnham: Mr. Chief Justice, and may it please the Court: In 1973 Petitioner applied for a... for a job with the Michigan State Police as a computer analyst. He was fully qualified for this job. He did not get it. And he subsequently found out that the reason he did not get that was because the Michigan State Police had a so-called "Red Squad" which maintained dossiers on persons who had engaged in certain political activities. The plaintiff, believing that he was wronged, sued in the Michigan Court of Claims under 42 U.S.C. Section 1983, and he recovered a judgment to redress this violation of his Federal Constitution rights. The Michigan Supreme Court took away that judgment. They did not take away that judgment on the ground that there was no case on the merits, it's admitted now that in fact the Respondents did violate his due process rights. It was not taken away because of any lack of jurisdiction in the Michigan courts for handling such cases. Michigan courts are fully competent to handle Section 1983 claims, and the Michigan Court of Claims is the court which is specially constituted to hear claims against the State of Michigan and its departments. The Michigan Supreme Court reversed the case because, in its view, the Petitioner had not made out a cause of action under 42 U.S.C. 1983, because the Respondents were not persons acting under color of state law within the meaning of that statute.
William H. Rehnquist: Mr. Burnham, one thing that seems strange to me about this case is, if the Supreme Court of Michigan had wanted to award damages on this cause of action, it surely could have done so just under some general state law theory. Was the intimation from the Supreme Court of Michigan opinion that, had the Petitioner chosen to sue just under state law rather than under 1983 the result might have been different?
William Burnham: Well, it would depend on whether or not the Chief Justice has in mind state constitutional law or state law of another type, in other words state tort law. Under state tort law this claim would be barred by, by the state's sovereign immunity. If it's state constitutional law, after this very case was decided, then the Supreme Court, the Michigan Supreme Court in this case, established that one could in fact sue under the state constitution. Prior to that time, it had not so held. And consequently, had he had, had the benefit of this very case at the time that he filed his case perhaps he would have framed things differently.
William H. Rehnquist: The holding as to the state constitution was in this very case but it was not applied to him.
William Burnham: But it was not applied to him. There were two cases, the Smith case and the Will Case. And in the Will case they determined that he had not clearly made out... had not clearly preserved for appeal the issue of the violation of the state constitution. And in the Smith case, however, they had preserved it and consequently they had to decide that question. But this is the first case in which the Supreme Court of Michigan has indicated that a state constitutional claim would not be barred by state sovereign immunity. Prior to that and if it's on any other theory, any tort theory, anything like that, it would clearly be barred. It's Petitioner's position in this case that the Respondents, Michigan Department of State Police and the Director of the Michigan State Police, are in fact persons within, within the meaning of the statute for basically three reasons. First of all, the statutory language says so, and secondly, the legislative history tells us that as well, and finally there was no reason to depart from the clear meaning of the statute and the legislative history in order to read those terms differently. In terms of the language of the statute, the well-established rule of statutory construction as far as this very issue is concerned, is that if there is a federal statute which addresses activities that states are equally capable of engaging in, that are targeted by that statute, then the rule is that "person" include states unless Congress expressly excludes them. And in the antitrust laws, under the Clayton Act, and under the Sherman Act, the Robinson-Patman Act, this Court has indicated that person in those statutes include states. And the most recent case, of course, is the Jefferson County Pharmaceutical case at 460 U.S. In 1983 dealing with the Robinson-Patman Act.
Sandra Day O'Connor: Mr. Burnham, don't you think the amendment, the retroactively-effective amendment, of the Dictionary Act bears on the meaning of persons in this statute?
William Burnham: I don't believe so. And the reason for that is that, first of all, it doesn't bear on it because I don't believe that the wording change that is made in that, in fact, does what Respondents would say that it does. In other words, the 1874, the new version of the Dictionary Act, basically gives us the same definition that is in the antitrust acts. In other words, corporations, associations--
Sandra Day O'Connor: Well, there's pretty clear evidence of an intent not to have the language so broad for the very purpose of making sure it didn't include states.
William Burnham: --Well, that intent is the intent of the commissioners of the revision commission, and it's quite well established that the revision commission's comments are not the legislative history of that statute. As a matter of fact, the revision commission was fired by Congress because it made too many changes, and in fact it's been noted by every commentator that in fact that is not part of the legislative history. That may, may have been the intent of the revisors, but Congress in passing the 1874 code clearly did not rely on that, they relied on Mr. Durant's revisions of the code. And Mr. Durant, in fact, went through and tried to make as many changes back to the original language as possible. The only explanation is that Congress simply, at the last minute, felt it needed a code, it passed and had the task, task before it to pass, all of the statutes that theretofore had been passed as part of the code, and simply passed it.
Sandra Day O'Connor: Well, don't you also think that the history of the 1871 act, as outlined in Monell, indicates that the framers of that act thought they had no constitutional power to impose an independent federal duty on state officers or instrumentalities--
William Burnham: I don't believe that that is--
Sandra Day O'Connor: --And it would be rather surprising in light of that history that they intended to include the states?
William Burnham: --I think that what Congress was speaking of is the type of liability that was, that was dealt with in the subject at hand, which of course was the Sherman Amendment. And the Sherman Amendment did, did not deal with the question of whether or not, and this Court of course found in Monell, did not deal with the question of whether or not states or for that matter municipalities that took action that violated constitutional rights could not be subjected to liability. That was not the question. The question was whether or not a duty to maintain a police force could be imposed upon counties as subdivisions of states by way of this vicarious liability in the Sherman Amendment.
Sandra Day O'Connor: But it's most unlikely in light of the history of that act and, and the purpose of the Ku Klux Klan Act that the 42nd Congress Intended to create a damage action against state governments to be heard in state court.
William Burnham: Well, the question of state court, I think, has to be separated from the question of whether or not a cause of action is, is set out. In other words, Congress clearly in Section 1 was authorizing a remedy to be brought. Now, Congress did indicate that remedy... it was also at the same time creating jurisdiction without regard to amount of controversy in the federal courts. However, at that time and today and since Mr. Hamilton wrote Federalist No. 82, it's been quite clear that the standard is that there was concurrent jurisdiction in state courts unless Congress makes that exclusive. And as a matter of fact, that section of, of, of Federalist No. 82 was actually read on the floor of the Congress at the time in the debates at the time that Section 1983 was being considered. Congress was fully advised of that, this Court has noted that there's jurisdiction, concurrent jurisdiction, in state courts, in addition to which we must keep in mind the fact that from the time of the Constitution until 1875 federal questions, including Federal Constitutional questions, could only be brought in the state courts. It's highly unlikely that Congress would have forgotten that at the time that it was authorizing the cause of action to enforce the 14th Amendment. I might also add that the slaughterhouse cases were filed in 1870, and the slaughterhouse cases were, of course, filed in the, the Louisiana State Court as a means of enforcing the 14th Amendment. And consequently anyone who is familiar with the slaughterhouse cases, and of course they were quite notable at the time, in the news media and otherwise, would have known that that was an example of enforcing the 14th Amendment in state court.
William H. Rehnquist: Were they brought under Section 1983 in the Louisiana courts?
William Burnham: No, no they were not. The filing of that predated the statute. The first reported case, I believe, under Section 1983, I believe, was in <eighteen seventy-three> [= 1873] in the Circuit Court in Illinois, I believe. And that, interest... interestingly enough, was a suit by a company against the City of Hyde Park. In other words, a suit against a, a governmental subdivision, an entity in that case. And that case, of course, was relied on in this Court, by this Court, in the Monell case, in 436 U.S. And consequently the statute was not used at that time.
Antonin Scalia: But that's a little disingenuous, isn't it? I mean, our whole theory in Monell was that cities are not, are not states, that they haven't been treated like states. I mean, to cite Monell as, as authority for what you want us to do here is to really pull it inside-out, it seems to me.
William Burnham: Well, I agree that Monell does not cover the precise question in this case. However--
Antonin Scalia: Well, more than that, I think it, I think it, it... it's rationale refutes the statement you just made, that any, any earlier case that had to do with the city is somehow authority for suits against the government. Monell says quite the contrary, that the reason suits against cities are allowed is that they weren't considered governments.
William Burnham: --No, I, I don't believe that that... the rationale of Monell, as I understand Monell, is that there's no reason to exclude cities because of the fact that the Sherman Amendment was defeated or for any other reason, that cities, the entity itself is as capable as the officers of that city of engaging in the kinds of activities that were the focus of the, of Section 1 of the 1871 act. And consequently there was no reason in the Sherman Amendment, which of course Monroe v. Pape held, excluded cities, there was no reason to read its defeat as meaning that cities were excluded. But simply the fact that cities were as capable of engaging in those kinds of depredations that the Court believed that there was no reason to exclude them. And of course, the Dictionary Act was relied on... upon in Monell, and the Dictionary Act did not refer to cities or counties, it said bodies, corporate and politic. And of course those very words were used by the senators and members of the House who debated Section 1981 on the floor of the Congress to describe states. And no one has ever doubted that states certainly come within that, that definition. And that definition, we believe, although it was changed in 1874, this Court has never taken the view that that somehow retroactively clarified Congressional intent as the Respondents would have the Court believe.
Antonin Scalia: Isn't it queer... queer disposition you're asking us to end up with, given Quern, you're... what you're necessarily suggesting is that in order to protect individuals against the states, Congress created a cause of action against the states, but allowed that cause of action to be sued upon only in state courts. Isn't that rather strange? I mean, if, if you're worried about the state's misbehaving, it seems to me... I could understand the opposite, allowing suits only in federal courts and not in state courts. But prohibiting suit in federal courts and permitting it in state courts seems, seems absolutely inverted.
William Burnham: Well, the crux of the matter is that Congress did not do that. In other words, the reason that matters of this sort... in other words if this case were thought in federal court, it's quite clear it would be barred. The reason that this case would be barred in federal court is not because Congress said it could not be brought there but because the 11th Amendment says that the state cannot be sued in federal court. In other words, Congress did not by use of the term "person acting under, under color of state law. " mean that as a term of limitation. Congress was, was simply setting up the cause of action. And there is a defense, of course, of the 11th Amendment, which defeats that cause of action. However, in state court where that defense is not available to the state, then the cause of action has greater force.
Antonin Scalia: You don't think Congress, in Section... using Section 5, could have, could have set the 11th Amendment aside and allowed these suits?
William Burnham: Congress certainly could have done that, had Congress, number one, thought that the 11th Amendment was a problem, and number two, believed that or had the foresight to forecast this Court's decision in cases such as Hutto v. Finney and Atascadero. In other words, the clear statement kind of rule. Petitioners believe, as we indicate in our, in our brief, that because Hans v. Louisiana was not decided until 20 years later that it's highly unlikely that Congress would have thought that there was an 11th Amendment bar to a federal question claim. Hans v. Louisiana quite clearly relied on only recent precedent. There was no occasion for deciding that issue before, it would not have been established until 1890. And consequently the Respondents would impute some sort of intent to Congress to limit a cause of action based on an assumption about the 11th Amendment, when there is absolutely no evidence that they thought that the 11th Amendment would be a problem.
Antonin Scalia: But we've decided that the other way.
William Burnham: Well, I--
Antonin Scalia: I mean, you're, you're... this argument essentially is asking us to over... overrule Quern.
William Burnham: --Well, Quern doesn't necessarily do that. Quern, I think, applies a modern standard for abrogating the 11th Amendment. That modern standard is one that applies from that day forward, but this Court has also said it will look at prior statutes including the Jones Act and the Welch case and other statutes in order to determine whether or not Congress, in fact, did abrogate 11th Amendment immunity. And that of course is a separate issue from the cause of action question, because Congress must, must not just authorize suit against the state, Congress must make its intent clear, must have considered the 11th Amendment and firmly decided to abrogate it. In the vernacular I suppose you could say Congress is saying not only that the states can be sued but also, read my lips, we mean it, the states can be sued. And it's only then that the 11th Amendment is abrogated. It is not necessary in order to establish a cause of action to do that. And this Court has repeatedly assumed, in Atascadero, in the Welch case, and in Employees v. Missouri Department of Public Welfare, that in fact there is a cause of action that is left over, once one decides that 11th Amendment issue. And as a matter of fact, in Atascadero the Court made it quite clear that the decision did not mean there was not a remedy. The decision simply meant that that remedy would have to be pursued in state court. It is not... it is a common situation with federal statutes that establish causes of action for which there is a defense in one form but not a defense in another form.
Antonin Scalia: Do they do it by using the same word, in a fashion that, that has two different meanings? Do you know any other... your argument is essentially that the word "person" does not mean a state for purposes of whether you can bring a suit in federal court.
William Burnham: No. The word "person" does mean a state, in federal court as well. It simply means that that suit is barred, if the 11th Amendment is applicable. For example, this Court has indicated... in the State of Rhode Island, the legislature of Rhode Island has waived its 11th Amendment immunity by statute. And in that case the First Circuit indicated, well, then we have to go on to decide the question of whether or not there is a cause of action under Section 1983. And we hold that the state is a person, in the Della Grotta case. In other words, two separate issues of whether or not it's barred by the 11th Amendment and whether or not there's a cause of action. If those two issues were the same, then we would never be able to have a cause of action, once the consent by the state was given.
Antonin Scalia: You think Congress used person to mean state but nonetheless did, did not allow suit against the state--
William Burnham: Congress allowed suit against the state in the sense of authorizing the cause of action. However, Congress did not engage in the kind of super-intent, in other words the clear statement necessary under cases like Atascadero, in order to abrogate it. In other words, the two questions of whether or not there's a cause of action, and the second question of whether or not that cause of action might be barred. And the state... Petitioners' position is the state is a person for all purposes, for purposes of cause of action. The question of whether or not they can be sued in federal court is a question of the defense that the state might raise.
John Paul Stevens: --Mr. Burnham, can I ask you a question about your understanding of the state of the law at the time the statute was enacted? Recently we had a lot of law on the question of the difference between a state official being sued in the official capacity and being sued in an individual capacity. Was that distinction as well-recognized back in the 1860s as it, as it is today, do you know?
William Burnham: I don't believe that it was. As a matter of fact, a lot of the law of whether or not one is suing in the official capacity or in a personal capacity is overshadowed by 11th Amendment laws, especially starting with Ex parte Young. And it's very difficult to separate that. I believe that the understanding of the 1872, '71 Congress could well have been the understanding that was reflected the, the year later in Davis 11th Amendment.
John Paul Stevens: Well, under your view, if this action had been brought against the director of the state police in 1874, right after the statute was passed, and the judgment had been entered against that official, would that judgment have been payable by the state or by the individual at that time?
William Burnham: That would be... either option if possible. However, I believe that the option that is more likely is that it would be paid by the state.
John Paul Stevens: At that time?
William Burnham: At that time. Representative Bingham gave an example of the kinds of rights that he believed were protected by Section 1983. One of those rights that he gave us that he believed that the case of Barron v. Mayor of Baltimore should apply to states and cities. And consequently he viewed just compensation claims as being the kinds of claims that could be brought under the statute. Now, if a state officer who actually goes out and seizes that property is the one who was personally liable for that, it would be highly unlikely that that is what Bingham had in mind. And as Justice Powell concluded in his concurrence in Monell, there is no indication that they intended somehow that only personal liability of the officer would be involved in these kinds of cases. There's another example that is given by an opponent in the legislative history, by Representative Blair, and that is, what if slavery were reimposed in a particular state? This is the kind of thing that, that the statute seems to go to. And the Representative pointed out that quite clearly that is a case where the state itself does it, and consequently the liability should run with the state. It should not run with the individual officers who happen to have the misfortune of being the ones who are sent out to enforce that law. I suppose, to use an example from this case that would ring true in 1871 terms, if in fact a statute said, state government cannot hire black people, and the Petitioner were denied that job pursuant to that state statute, Respondents would have this Court say that the only remedy is to sue that personnel interviewer who says, my hands are tied, I can't hire you. The state law says that I, I have to reject your application. That kind of liability doesn't make a lot of sense. And if you read through the legislative history and look at the--
John Paul Stevens: Let me just interrupt there. Why wouldn't the answer to that be, under Ex parte Young, that you could get injunctive relief in that situation? And that that would be adequate?
William Burnham: --Well, of course, Ex parte Young was not for another 30 years.
John Paul Stevens: I know, but I mean, why couldn't the rationale of Ex parte Young been applied in such a case and, and say that you're only remedy is not for damages but for injunctive relief?
William Burnham: Well, it would be highly unlikely that that would be the case, if Congress says right in the statute that whatever this remedy is against persons is, in the words of the statute, a... an action at law, suit in equity, or other proper proceeding for redress. In other words, if Congress had that in mind, certainly there was a clearer way of saying it. And if in fact action at law and suit in equity are the kinds of things that are... that are available against that person, then certainly there's no basis for saying that somehow the statute means, well, person if it's a suit in equity but not a person if it's a suit at law. Congress did not say that. And it quite clearly could have said that. It simply did not.
Sandra Day O'Connor: Mr. Burnham, was Section 1 of the 1871 Act patterned after Section 2 of the 1866 Civil Rights Act?
William Burnham: I believe the term that this Court has, has used and is, gleaning from the legislative history, is that it was a model for--
Sandra Day O'Connor: The language is identical, in fact, isn't it?
William Burnham: --The language... in fact, the language is identical.
Sandra Day O'Connor: And would you say that Section 2 of the Civil Rights Act applies to states as persons, making them criminally liable?
William Burnham: Well, at the time, of course, the... the criminal liability could only be visited on individuals. In other words--
Sandra Day O'Connor: Well, your answer is no, that it would not make criminal--
William Burnham: --No, it would not.
Sandra Day O'Connor: --penalties enforceable against the state.
William Burnham: No, in other words, the state could not be imprisoned under that law.
Sandra Day O'Connor: Why would we read the word "person" in the identical language in the later act differently then, do you think?
William Burnham: Well, there are a couple of reasons. The first reason is that the 1866 act led to the 14th Amendment. In other words, the reason why the 14th Amendment was written and passed by Congress, in large part, was because they believed that there were constitutional problems with the 1866 act. And consequently, a more generalized version of the 1866 criminal law is what gave us the current Section 1 of the 14th Amendment. In that broader context, in other words outside of the narrow criminal context, Congress chose the words, "no state shall", and consequently Congress is telling us by doing that that this kind of liability that they're talking about is at the very least official capacity liability, and certainly in a broader context where we're talking about the non-criminal situation, that that is a situation where it is the state itself that is prohibited from doing that. Now, then, after... that was in 1866, then 1868 the 14th Amendment, then in 1871 they want to enforce the 14th Amendment, they go back and simply use the old language from the 1866 statute. But they indicate in the preamble that they are enforcing the provisions of the 14th Amendment, which of course says itself, "no state shall". The second reason is that the kind of liability that they spoke of in the 1866 act, and the use to which it was put historically, was to render criminally liable judges, other officials, for official capacity actions. In other words, the actions that were brought were in fact actions that were brought for a judge, for example, excluding blacks from a jury, pursuant to a state statute. That judge was arrested and tried before the Federal court for doing that. That is precisely the kind of official capacity type action which we are talking about here.
Sandra Day O'Connor: I think that the logic of the whole history is to say yes, they thought they could reach individual state actors but not the states themselves. And the whole thing makes sense when viewed in that light. I think your argument is somewhat hard to achieve.
William Burnham: Well, it's, it's very hard to account for the many references about states being the object of Section 1. In other words, we are handicapped to a certain extent by the fact that Congress was more excited about, and debated more, the other sections, which perhaps were more problematic and did not have such debate on Section 1. But everyone who referred to Section 1, and, and the quotations are in the brief, refers to the fact that it was meant to reach violations by the state itself in its corporate and legislative capacity.
Anthony M. Kennedy: Are there any indications in the debates showing concern over imposition of damage liability on the states?
William Burnham: Not that I have been able to find, Your Honor. The... the 11th Amendment apparently, for example, is not mentioned at all in the debates.
Anthony M. Kennedy: Is that then not indicative of an understanding by Congress that such damage liability is not encompassed by the statute?
William Burnham: Well, to the extent that Congress was worried about a few other things, such as in the other sections military takeover of state governments, which obviously is much more intrusive of state sovereignty than a simple damage award, suspending habeas corpus in the areas where state authorities were not able to control things. Those were the kinds of things that Congress debated.
Thurgood Marshall: And also the black laws, the state black laws, too.
William Burnham: Absolutely. In other words, the concern was that state governments were in fact allowing all sorts of violations by individuals and were not enforcing the law, as well as the fact that they themselves might have affirmative laws which in fact denied rights to, to the former freed persons.
Thurgood Marshall: xxx that prevented a Negro from flying a kite.
William Burnham: Uhm. But there are several references in the legislative history. For example, Senator Edmunds, who was the floor manager of the bill and he was the chairman of joint committee that investigated the whole problem, indicated that Section 1 simply reenacts the Constitution. He did not say that it reenacts the Constitution except for the part that says, "no state shall". Representative Bingham talks about it's a remedy provided against all such abuses and denials of rights in states and by states, and he didn't say except ones that are pursuant to state statute that are perpetrated by the state itself. Representative Sheilabarger, who was a sponsor of the bill, indicated that the states remained unrestrained, and therefore there's a need for this remedy. And that was not, certainly, as a prelude to introducing a bill that does not restrain states themselves. I'd like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Burnham. Mr. Weller, we'll hear from you.
George H. Weller: Thank you, Mr. Chief Justice, and may it please the Court: The State takes the position, first, Congress has the power under Section 5 of the 14th Amendment to include the states within Section 1, that is to include the states within the meaning of person, but it did not do so. And our second position is since this action for damages was in the Michigan Court of Claims, against the office of the director of the State Police, not the director of the State Police personally, and the only defendant in the Michigan Court of Claims is the State of Michigan itself. There is only one defendant in this case, and that's the State of Michigan. And the caption merely sets forth in two different ways a cause of action against the State of Michigan.
William H. Rehnquist: Did the Supreme Court of Michigan agree with you on that second point?
George H. Weller: Yes, they did, You Honor. They found... when they described the state not being a person they then proceeded to describe an action against the state official who was being sued in this case and used the same logic and the same premise and found that he was not a person as well. Now, on our first position, if Congress intended to use its new power under the 14th Amendment that had been enacted three years before, and to do away with the traditional immunity of the states from an action for damages, in their own state courts, and do this on a federal cause of action, Congress would have expressly said so in Section 1, or would have made a clear statement that the states were included within the meaning of the word "person". And the reasons for this are, number one, as this Court has pointed out, in common usage, "person" does not include a sovereign state and statutes using the word "person" are ordinarily interpreted not to include a sovereign state. And secondly, there was no presumption in 1871 that the word "person" included the sovereign states. In other words, the Dictionary Act of the previous Congress, not the same Congress, as set forth by the Petitioner, but the Dictionary Act of the previous Congress did not intend to include the sates within the meaning of the word "person". This is illustrated by the commissioners' action in changing the wording and further illustrated by Mr. Durant's further analysis of what the commissioners had done. And he made a report on December the 10th in 1873 to the Congress, and he said, I have retained only those meanings that are found in the statutes at large. And the meanings that he retained that the commissioners utilized was to use partnerships and corporations as the meaning of person in the Dictionary Act.
Speaker: Attorney General Weller, what about the word 7 of the Sherman Act, enacted in 1890?
George H. Weller: In the Sherman Act and other acts, as I understand it, Your Honor, the word "person" of course may include the states under the circumstances. You have to analyze and determine whether or not the word "person" includes the states. There are some cases, for example, in which the states were setting up pharmaceutical practices that were competing with private enterprise in that. But our basic premise here is that the word "person" ordinarily is not used to include the states, and there's no indication that the states were intended to be included within the meaning of the word in this law. So with no common usage, and with no presumption, and with no expressed statement, the plain meaning of person in the 1871 act, our position is, did not include the states. Now, if Congress had intended to include the states within the meaning of the word, this would have been a radical change. And under the law at the time, a radical change would require an explicit showing or would require an expressed statement or a clear statement that it was the collective will of the Congress to include the states within this meaning. And to include the states within the meaning of the word "person", in light of Quern, would mean that Congress by its collective will intended to subject the states to actions for damages in their own state courts on a federal cause of action.
Thurgood Marshall: You have no trouble in getting corporations under the word "persons", do you?
George H. Weller: I don't understand, You Honor. I have a little trouble in getting the word "corporation"?
Thurgood Marshall: Nobody else has. So if you can get corporation under persons why can't you get state under persons?
George H. Weller: Well, the word "corporations" normally includes, for example, municipal corporations and counties and that. That's understood. States occasionally may be included within the word "corporation", but they're not normally used within the meaning of the word "corporation".
Thurgood Marshall: They mean persons. Corporation comes under the word 14th Amendment. Isn't that true?
George H. Weller: I'm sorry, Your Honor, I don't recall that language in the 14th Amendment, that corporations are--
Thurgood Marshall: I don't either. But this Court put it in there, in the 1880s, right?
George H. Weller: --Yes.
Thurgood Marshall: I don't see how you can do one and just ignore the other.
George H. Weller: Well, we're speaking of the intention of Congress in 1871, Your Honor. And in 1871... again, our position is that states were not included, that the intention of the previous Congress was to include corporations. But as they used corporations it did not include the states. Now, the Court in... the Court in Quern has already held that Section 1983 was not intended to abrogate the state's traditional sovereign immunity in the federal courts. The Court in Quern also pointed out that no member of Congress in the legislative history of legislative debate made any mention of financial consequences to the states, nor did any member focus directly on the question of state liability. So that... since Quern has already has already held there's no federal right in the federal courts, there's the strongest implication in Quern that the... this Court did not intend to interpret person as including the states. Now, the purpose of the 1871 act was, of course, to enforce the 14th Amendment. And under the 14th Amendment, under Section <five> [= 5], it was left to Congress to decide whether to enact legislation or what kind of legislation to enact. Congress could choose to act to the fullness of its power, or Congress could choose to act to some lesser degree. It didn't need to exercise all of its power under Section 5. And our position is that Congress did not need, in 1871, to exercise all of its power and include the states within the meaning of the word "person" in part because, as the Court has already pointed out, the problem was not with the state laws on the books or with the state remedies that were available. The problem was with enforcement. State laws were not being equally enforced, or the state laws were not being enforced at all, or the state courts were powerless to act or they were in league with those who were depriving others of their federal rights. So the perceived need in Congress in 1871 was for effective enforcement and open, fair, and objective courts. So the perceived need, the collective will of the Congress, was to give immediate access to the federal courts for actions for damages or for suits for injunctive relief. And this need was fulfilled by using the word "person" that included government officials, and included local communities, as this Court pointed out in Monell. But there is no perceived need nor was there any collective will to include the states within the 1871 Civil Rights Act. For one thing, there is no tradition in 1871 of an action or a suit against a state, against its will. In fact, I've been unable to find any such case between Chisholm v. Georgia in 1793 and 1871. What there was in 1871 was a strong tradition of the immunity of the states from suits in their own courts. That doesn't mean the 1871 act did not provide relief. For example, actions for damages were made available in the federal courts against those against whom such actions had long been recognized, for example, state officials and local officials. And as the Court said in Monell, local communities. And in response to your question, sir, the Prosser of his day was a gentleman called Hillard. And in Hillard on Torts, at page 269 in 1866, Mr. Hillard points out the ready availability of actions for damages against public officials. Mr. Hillard also wrote another book on injunctions. In 1864 on page 443 and 444 he points out that there was a long tradition of suits for injunctive relief against public officers who are acting illegally or unconstitutionally. And in there he cites other cases as well. So the 1871 act provided relief against state officials--
John Paul Stevens: May I just back up because I found that very interesting? Your first example from Hillard in 1866--
George H. Weller: --Yes.
John Paul Stevens: --Did that contemplate... do I understand you to say that he was suggesting it would be perfectly proper to get a damage recovery against a state individual acting in his official capacity?
George H. Weller: In his... that would be in his personal capacity, Your Honor, against him as a person.
John Paul Stevens: Well, the judgment would run against him in, in, in his personal capacity--
George H. Weller: Yes.
John Paul Stevens: --But supposing he was the head of the Michigan Department of Police and done just what had been done here, would such a judgment... and that had been regarded as a tort at the time--
George H. Weller: Well, that, that, that, that goes back to the Governor of Georgia v. Madrazo where the suit is against the office of the individual, not against the individual as a person. And so therefore, that kind of a suit that you describe would be against the office, therefore it would be against the state, not... and therefore it would be barred, as opposed to there was a separate--
John Paul Stevens: --Was... was that what you found in the tort law treatises at the time, or is that what you're saying is the--
George H. Weller: --No, that's basically what I found in the treatises at the time.
Speaker: --I see.
George H. Weller: Some of them are cited in our brief, and Hillard I found after we wrote our brief. So this recourse in the 1871 act against officials and local communities, but not against the states, it ensured the supremacy of federal law but at the same time it accommodated the traditional immunity of the states in what this Court in Monell referred to as coordinate sovereignty. In other words, it made the balance that ensured that federal law would be supreme, the federal Constitution would be supreme. Now, the immediate reason for the 1871 act was the violence that was being directed towards blacks and towards sympathetic whites who were the backbone of the southern Republican Parties. But the act, of course, applied to all of the states, not just the southern states. And so we have this question, the Court has yet to hold... this Court has yet to hold that a state court must entertain a claim under Section 1983. What this Court has said is that a state court may not discriminate against a type of federal action when that same type of action arising under state law is enforced in the state courts. So it's most unlikely that in 1871 it was the collective will of the 1871 Congress, and particularly since the senators were still being elected by the legislatures not by the people, it's most unlikely that it was the collective will of that Congress to include the states within the meaning of the word 1871 Congress to abrogate their traditional sovereign immunity of their states, only in the state courts, and thus raise the possibility that the states would be subject to actions for damages on a federal cause of action in their state courts when they would not be subject to the same type of cause of action under state law. So our feeling is... our basic premise is there is nothing in the context, or in the subject matter, or in the legislative history or in the tenor of the times to show that it was the collective will of the Congress, a Republican-dominated House and Senate, to do away with the traditional immunity of the states and subject them to damages in their own state courts.
Anthony M. Kennedy: I, I take it you're of the view that the 11th Amendment clearly bars the suit in a Federal court?
George H. Weller: Well, that's what Quern said, Your Honor, that the--
Byron R. White: Why, why do we have jurisdiction to hear this case, then?
George H. Weller: --This, this is a cause of action alleging a violation of a Federal statute. And--
Anthony M. Kennedy: But aren't you here in Federal court?
George H. Weller: --And you have jurisdiction to interpret the meaning of the statute to determine whether or not the states were or were not included.
Anthony M. Kennedy: But isn't this the suit that's brought... if this suit can't be brought in a federal court, then how can you be here?
George H. Weller: We can be here because the state courts enforce Federal law as well, Your Honor.
Anthony M. Kennedy: But we're a federal court, and the judicial power shall not extend, under the 11th Amendment, to this kind of suit.
George H. Weller: You're in... we're in federal court on an appeal from a state court handling a Federal cause of action.
Anthony M. Kennedy: But the 11th Amendment says you cannot be in the federal court.
George H. Weller: I don't believe, Your Honor, that the 11th Amendment bars actions on appeal on federal causes of action.
Anthony M. Kennedy: It says, "the Judicial power shall not extend. "
George H. Weller: Well, we're dealing with a federal statute, Your Honor.
Anthony M. Kennedy: Well, you'd be dealing with that in the district court too, I suppose, and you'd find... you'd ask for immediate dismissal, I assume.
George H. Weller: Well, if we went into the district court, yes, we'd, we'd raise the 11th Amendment, if the state was sued. And we do do that. But in this case--
Anthony M. Kennedy: But you don't raise it here?
George H. Weller: --We don't... no sir, we do not raise it, we do not rely on the 11th Amendment. Not at all.
John Paul Stevens: Yes, but don't we have an obligation to do that ourselves, if it deprives us of jurisdiction?
George H. Weller: If you feel--
John Paul Stevens: And this is a case, is it not, that was, in either law or equity, commenced against one of the United States by a, by a citizen?
George H. Weller: --I believe, Your Honor, the history of this Court and the cases involved show that in order to ensure the supremacy of federal law... Corens, for example, v. Virginia requires that this Court entertain these actions, if it chooses to do so, of course, on certiorari, but it has jurisdiction to hear appeals on federal causes of action coming from state courts to determine, and analyze and determine whether the federal law does or does not apply.
Antonin Scalia: Gee, I don't know why you don't rely on the 11th Amendment, because... if the 11th Amendment did apply to us as well as to other Federal courts, and as Justice Kennedy points out there's nothing that says it doesn't, then what your opponent would be suggesting is that Congress created federal causes of action in state courts against the states, they couldn't be appealed to the United States Supreme Court, so there'd be no way of, of giving any unity to that particular Federal law. That wouldn't be a very sensible arrangement, would it?
George H. Weller: I don't believe this is a valid argument, Your Honor, that a, a... the interpretation of a federal statute, by a state court, interpreting the meaning of a federal statute, cannot be appealed to this Court. I think the thought processes of the era are better found in the language of the 1880 Ex parte Virginia. The Court was speaking of the 14th Amendment, and the Court said, "Prohibitions of the 14th Amendment are addressed to the states. " But then, one page later, this Court said, "Such legislation must act upon person's, not upon the abstract thing that's denominated a state, but upon the persons who are the agents of the state in the denial of the rights which are intended to be secured. " Our position is, Your Honors, that Congress could have included the states within the scope of the 1871 Civil Rights Act. It did not do so. Congress can at any time, if it chooses, include the states within the scope of the 1871 Civil Rights Act. It has yet to do so. Thank you, Your Honors.
William H. Rehnquist: Thank you, Mr. Weller. Mr. Burnham, you have four minutes remaining.
William Burnham: Thank you. A couple of matters by, by way of response. First of all, I believe counsel for Respondents indicated that it was somehow rare that states would be persons under the, under the Federal laws. However, I did not mention the liquor tax laws in which the definition is partnership, association, company, or corporation, as well as natural persons. This Court has held that the state is a person. The shipping act, corporations, partnerships, and associations existing under or authorized by the laws of any state, that includes the state. The antitrust definition is precisely corporations and associations existing under or authorized by the laws of any state. The Court has held in all those circumstances that the state is in fact a person. Secondly--
Antonin Scalia: For an antitrust plaintiff, anyway. But I'm not sure for an antitrust defendant.
William Burnham: --No. Jefferson County was an antitrust defendant.
Antonin Scalia: Defendant?
William Burnham: As a matter of fact, one of the arguments that was made was that person should mean something different if it's a plaintiff than if it's a defendant. And it was precisely that argument that was rejected by the Court. In fact, if you're a person you're either in or out of that definition, and it doesn't vary depending on the circumstances. And of course, that rule is followed in a slightly different way in the civil rights context, that this Court held in Kenosha v. Bruno, that you can't bifurcate person somehow according to relief. Either they are persons or they're not, and if they are there as Congress says, action at law, suits in equity... everything applies.
Anthony M. Kennedy: Can you tell us why we have jurisdiction under the 11th Amendment?
William Burnham: Well, Cohens v. Virginia. I think counsel is correct, that in fact an appeal is not considered to be an action prosecuted against a state for purposes of the 11th Amendment.
Anthony M. Kennedy: But, no, no, the Judiciary Act of 1789 gave us jurisdiction over those matters, and there was no 11th Amendment bar.
William Burnham: Well--
Anthony M. Kennedy: The 11th Amendment says, "the judicial power shall not extend. "
William Burnham: --That's true. It would--
Anthony M. Kennedy: And I take it we're a federal court.
William Burnham: --Yes. I would agree with that. The difficulty, of course, is that this Court, if the Court wanted to take that matter up anew, would have to reverse several prior cases. Maine v. Thiboutot was a 1983 action brought in state court. This Court decided the attorney fee issue in that case without ever noting that there was any problem. Martinez v. California is another state court Section 1983 action that came up. Obviously in all those cases the Court would have been obligated to note the 11th Amendment problem, and to simply dismiss the case. There are all kinds of cases that are brought with federal--
Antonin Scalia: But nobody's perfect. We, we make mistakes. [Laughter]
William Burnham: --In, in, in the interest of stare decisis, I would suggest, however, that that perhaps is, is, is water over the dam and has been for, for almost, almost 150 years. Mr. Weller also indicated, I believe, that, that there were no suits against states prior to 1871. And in fact in, in Petitioner's reply brief we indicate Wilson v. New Jersey was a suit in state court against the State of New Jersey in 1812, Woodruff v. Trapnell was a suit against a bank receiver in their official capacity in 1850, of course Curran v. Arkansas in 1857. And Curran v. Arkansas is an interesting case for another purpose, and that gets to the next matter I would like to address, and that is the question of the jurisdiction of state courts to handle Section 1983 claims. In fact, there is no question about concurrent jurisdiction. In other words, the Court does not have to reach that because the Michigan Supreme Court quite clearly indicated that Michigan courts have jurisdiction over those cases, and moreover that Michigan's sovereign immunity is no bar to any of those actions. And consequently the sole reason why the Michigan Supreme Court decided the case, as it did, was because it believed that the state was not a person, i.e. there was not a cause of action against the state. I might not have been exactly clear in responding to Justice Scalia's question about the nature of the 11th Amendment bar. I would like to indicate that in the antitrust area, for example, the distinction is also made between the cause of action and the defense of the 11th Amendment. And as a matter of fact even though, under the antitrust laws, the state is a person who may be sued under the antitrust laws, the 11th Amendment bars damages relief. And consequently it did not affect the Court's decision that states were persons. They were nonetheless persons--
William H. Rehnquist: Thank you, Mr. Burnham. Your time has expired. The case is submitted.