William H. Rehnquist: Cause Number 86-473, Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc.-- Mr. Prettyman, you may begin whenever you're ready.
E. Barrett Prettyman, Jr.: Mr. Chief Justice, and may it please the Court: This case is here on certiorari to the 4th Circuit Court of Appeals and it involves the question of whether citizens can sue for purely past violations as opposed to ongoing violations under the Clean Water Act. Congress has set up a rather interesting dual system of regulating effluent discharges into the nation's waterways. The states adopt these plans, which are approved by the Administrator of EPA, the states issue permits, which set forth the effluent limitations and standards under which the permit holders can discharge, and then to demonstrate that he is operating within the ambits of his permit, the discharger is required to constantly test the effluents and to fill out DMRs or discharge monitoring reports which are on public file and which anyone can go see. These DMRs show on their face when the permit holder is operating within the parameters of the permit and they also show on their face if, in fact, the discharger is exceeding those limits. Thus, citizens groups like Respondent can review these DMRs on the public record and then give sixty day notice if they're going to sue for alleged violations and if the suits are not settled, then you... they can collect $10, 000 a day, which has now been upped to $25,000 a day, except when I say collect, I really mean that that money, of course, goes to the United States and not to them. They allege in their allegations the permit holder to be in violation. They usually attach these DMRs to their complaints and as I say, in theory at least, the recovery goes to the United States. When Gwaltney of Smithfield purchased a meat rendering and packing plant from ITT toward the end of 1981, it found after the purchase that it had inherited some problems, principally with the biological treatment system.
William J. Brennan, Jr.: It had no prior knowledge?
E. Barrett Prettyman, Jr.: They did have knowledge that ITT had had problems. They thought the problems had been solved. They found after they purchased that the problems had not been solved. These problems involved primarily chlorine, fecal coliform, and total kjeldahl nitrogen or TKN, and it thereafter experienced various excedences and various parameters of its permits. However, it then installed two new systems and it's undisputed that all of the excedences had, in fact, stopped prior to this suit. The Court of Appeals so held. It was so stipulated between the parties and the Respondents even conceded in their question presented before this Court that this case involved only past violations. First, as to chlorine, I'll touch on these just briefly, as to chlorine, we have found many problems in installing a new automatic chlorinator, but that finally fell into place in October of '82, so that there were no excedences for some twenty months or almost two years prior to the trial in this matter. With the exception of start-up excedences, which I'll talk about a little bit more later, the same is really true for fecal coliform; that is, that they substantially ended in 1982. We had more problem with the TKN and had to install largely a new system and there were various fits and starts, including six-month delay by the State Water Control Board itself, but the system was finally approved by the state and it began operation in October of '83 and it was fully on line in December. So that the only TKN excedences between then and--
William J. Brennan, Jr.: Is that a coined word or something?
E. Barrett Prettyman, Jr.: --Yes, Your Honor. It's the alternative to violation because if you use violation, there seems to be some import--
William J. Brennan, Jr.: Is it coined for this industry or something?
E. Barrett Prettyman, Jr.: --Pardon? Pardon me?
William J. Brennan, Jr.: Was it coined for this statute?
E. Barrett Prettyman, Jr.: No, It is my understanding it is regularly used in the industry. It's not just for this case. What it means is, Your Honor, that you have exceeded the limits in your permit, but an excedence, of course, could be a permissible upset or could be for other permissible reasons. Therefore, it's not necessarily a violation. And as I was saying, the excedences here, as far as TKN is concerned, were the unavoidable start-up excedences before suit. The District Court held that there is no way to start-up a biological treatment system without violations. But the important point here, really, to focus on is that the last fecal coliform excedence was four months before suit, TKN was a full month before suit, and, of course, the chlorine was twenty months ago. So, the case comes to you with the rather pristine question of whether citizens can sue for purely past violations, those which have abated prior to suit. The Court of Appeals held that they can. We say that they can't. The Solicitor General interprets the Act as we do, as to past violations. We disagree with him only in respect as how he interprets the word "alleged" in the statute and, therefore, with his recommended disposition.
Sandra Day O'Connor: Mr. Prettyman, did the District Court have an alternative holding below that there were continuing violations?
E. Barrett Prettyman, Jr.: What it had, Justice O'Connor, was--
Sandra Day O'Connor: I was under the impression that it did, and that that holding was just not reviewed by the Court of Appeals.
E. Barrett Prettyman, Jr.: --That alternative holding, which was in a footnote, was that even if you couldn't sue for past violations, that there was a good faith allegation of on-going violations. I would emphasize in regard to that, first of all, as you point out, the--
Sandra Day O'Connor: So, even if you were right, what, at best, what would happen? It would be vacated and remanded so that that could be considered?
E. Barrett Prettyman, Jr.: --Well, if you reach that question because you don't have to reach it, of course, if you reach that question. I would certainly think you would want to remand to the Court of Appeals for its consideration, but you shouldn't have to reach that question at all because in view of the fact that it is quite clear, both from the facts, the holding and the stipulation, that everything had stopped, had abated prior to the suit, it really didn't make any difference whether the allegations were good faith or not.
Sandra Day O'Connor: Well, unless the trier of fact thought that there was, indeed, a likelihood of some continuing problem, for example, with the TKN-type discharge.
E. Barrett Prettyman, Jr.: In that regard, Justice O'Connor, I wonder if I could call your attention to Footnotes, I think they are, 25 and 26 of the District Court's opinion because he very well addressed those particular matters. 25 and 26, where he, in effect, said some question has arisen as to whether these problems would continue, but I regard that as entirely too speculative to find. He, in effect, holds in these two footnotes that the problem has entirely ceased and I want to point out to you that the Respondents are not here arguing anything about good faith allegations or that these were on-going violations. What they are here arguing is that they can sue for past violations period. They posed the suit because--
Sandra Day O'Connor: Mr. Prettyman, can the EPA Administrator bring a civil penalty action for purely past violations?
E. Barrett Prettyman, Jr.: --That is an interesting question, and we really don't know the answer to that yet. The Government said yes, but it's interesting that xx--
Sandra Day O'Connor: The language is the same.
E. Barrett Prettyman, Jr.: --No, With great respect, Your Honor, it is not the same. The language in regard to the Government is in Section 309 or 1319, and the language is quite different. It is so different that the Government, when it seeks to bring a suit for past penalties, doesn't even rely on this statute. It relies on the judicial code.
Sandra Day O'Connor: The Government relies on statutes outside because of the similarity of the language perhaps.
E. Barrett Prettyman, Jr.: Right. And the reason they do that is the language is really not clear in this statute itself as to whether... it's a very convoluted statute when it comes to the Government's rights, but certainly even if the... the point I want to make is that even if the Government can sue for past violations, it is quite clear that the language and the rights are very different from those that relate to a citizen and the Solicitor General is very strong on that point, that he does not believe for a moment that a citizen has the same rights as, and comes under the same language as, the Government does.
Antonin Scalia: Mr. Prettyman, the language governing private civil actions doesn't say has violated, but it doesn't say is violating either. It says is in violation of.
E. Barrett Prettyman, Jr.: Yes.
Antonin Scalia: Now, that, it seems to me, means something quite different from is now violating. If you're caught by radar exceeding the speed limit and a police car pulls along side you after you realized that you've been caught and you've lowered your speed, he doesn't say into your window, you are violating the speed limit, you were violating it five miles back. He will say, you know, you were in violation of the speed limit.
E. Barrett Prettyman, Jr.: That would be very fair, Your Honor, if that's all the further we went, but the fact is that this statute, two things go to that. First of all, this statute uses the present tense in at least four other places in this same 1365.
Antonin Scalia: But the present tense speaking of a status, the status of being in violation. Now, what if I think that that status means you violated it in the past and you haven't done anything that seems likely to eliminate that possibility of violation in the future? What if I considered that to be what in violation of means?
E. Barrett Prettyman, Jr.: You may then be engaged in an on-going violation and, in fact, under our definition, you may be able to xx because an on-going xx present non-compliance because of a failure to correct an underlying difficulty, and if you have in fact, violated for several times, you have done nothing about it, and the suit is brought, that may be an on-going violation, may be perfectly proper to sue. That's not what happened here. In this suit, what happened was there were a series of excedences and we did something about it. We put in place with a new systems which were supposed to deal with it. After the systems were in place, we had unavoidable start-up excedences, which could not be avoided, the District Court so held, they were no more normal, the District Court again held, than you would expect in an ordinary xx the xx end of this, knowing that the situation had abated, knowing that it had been corrected and had come to a close, that Respondent come in and sue.
Antonin Scalia: Is had knowledge clear? You said that the last violation, the TKN violation was, excedence, if you want xx way was one month before suit was filed. But at the time suit was filed was it clear that the new equipment you had put in would do the job?
E. Barrett Prettyman, Jr.: I don't think there's any question about xx An the District Court ultimately held and the xx pointed out to you and where he said we were xx compliance and also.
Antonin Scalia: I didn't ask whether you were; I asked was it clear at the time that the suit was filed that the new equipment was effective to do the job.
E. Barrett Prettyman, Jr.: I think so, and this is the reason that I say so, Your Honor. First of all, they knew that the new equipment had been put in Secondly, they knew that it had been completed. They attended a meeting in March of the State Water Control Board at which this was discussed, and the State Water Control Board said, look, we've seen it, it looks to us like you're getting this thing under control. There's no need for any further action. Then, there were some unavoidable start-up excedences. I keep emphasizing that because you cannot start a new plant, much less fix an old plant, without having some of these unavoidable start-up excedences.
William H. Rehnquist: But the fact it's unavoidable doesn't get you off the hook. I mean, the statute doesn't require negligence or wilfulness to make it an excedence.
E. Barrett Prettyman, Jr.: Well, let me say two things to that, Your Honor. First of all, even the unavoidable start-up excedences had ceased prior to suit, but, secondly, even if they had been going on, it may well be that a start-up excedence would be a past violation that, for example, the state could xx after. But by definition, it cannot be an on-going violation. An on-going violation is something where something is going on because of a problem and you are not fixing it, you are not doing anything about it. This is a situation where we've done everything about it. We put in a new system. We spent $265,000 putting it in. It is now... the crust is starting to form on the lagoon which takes a long time. That's a problem getting that into shape, and those excedences cannot possibly constitute an on-going violation by their very nature. They are the tail-end of abatement. The whole purpose of the statute is abatement. The statute, you've got to remember, follows directly upon the Clean Air Act, and the Clean Air Act, as you will recall, had only an injunctive provision in it, and it related only to compliance, only to on-going, only to abatement. The one thing that this statute added to the Clean Air Act was the remedy of penalty, and that, by adding the penalty, what, it seems to me, Congress clearly did was to say we're going to add an extra incentive for you to stop sooner because by saying that you're going to get penalties and not just an injunction, it becomes very much to your advantage to stop at the earliest possible moment during the sixty-day period, for example. You get your sixty-day notice. If you can abate in there and stop, you have avoided your penalties and that's what the Act is entirely about.
Sandra Day O'Connor: Well, Mr. Prettyman, what's the test for violation and to get into court in this citizens suit? You don't really take the position, as I read your brief, that there has to be a violation on the day the suit is filed.
E. Barrett Prettyman, Jr.: Correct. I'm not sure I can define it any better than I did a little while ago, and that is present non-compliance for failure to correct the situation. Our definition would be that if there... the 5th Circuit pointed this out in Sierra Club v. Shell Oil that you can't just take an excedence here, an excedence there, and kind of bunch them all together and say this is an on-going violation. What you do is you kind of look behind them and you see is there a reason for this, is it on-going, do you have here somebody who has just turned off the spigot in order to avoid a suit, is it a periodic episodic violator who is just trying to avoid suit. In other words, the District Court can look at the facts very much as he does in a regular injunction proceeding to determine whether there is a problem which is creating excedences which you have not corrected, you have not done anything about. If you have not, then it is an on-going violation.
Sandra Day O'Connor: And if there's any question about the efficacy of the so-called correction, is that something that would xx the citizen to sue and litigate about?
E. Barrett Prettyman, Jr.: Might well. Now, for example, let's suppose you have taken some action, but it's the improper action, it's ineffective action, it's not enough action, it won't work, that's something that the court would be entitled to look to to see whether, in fact, there is an on-going problem that you have not properly addressed.
Sandra Day O'Connor: So, possibly, the Plaintiffs below had at least that much of a complaint with regard to the TKN problem.
E. Barrett Prettyman, Jr.: With great respect, Justice O'Connor, that just isn't possible in this case because they knew that we had installed a system. They knew that the system had been approved by the state. They knew that thereafter the state met and said we think we've got this under control. They knew--
William J. Brennan, Jr.: Mr. Prettyman, didn't the District Court find, I think this is the word they used, that the attempt to correct was lackadaisical and exceedingly unconcerned attitude toward correcting anything, and in the thirty-one months prior to the suit, the plant was in compliance with permit conditions only four months?
E. Barrett Prettyman, Jr.: --That, Your Honor, related to the prior period, when we were still wrestling with getting this whole thing into place, and we may well have been in violation, in an on-going violation at that time. It may be that we could have sued at that time, but he's not referring to the later period where, if you'll see, I think this Joint Appendix 115, in that area, where he says that at the end, which is the period we're talking about, just before they brought suit, these were unavoidable and were anticipated. As a matter of fact, in all the plans that the state had looked at prior to that, they had always put in a period for excedences after the system went into effect because they knew that even after you put the system into effect, you're going to have a period of excedences that you can't avoid.
Thurgood Marshall: Mr. Prettyman?
E. Barrett Prettyman, Jr.: Yes, sir.
Thurgood Marshall: If they put it in twelve months ahead of time, they wouldn't have had that problem, would they?
E. Barrett Prettyman, Jr.: If they had put the new system in before they did, it would have stopped sooner?
Thurgood Marshall: Yes.
E. Barrett Prettyman, Jr.: There's no question about that, Your Honor, and I'm not--
Thurgood Marshall: There would have been no possibility of filing a suit.
E. Barrett Prettyman, Jr.: --That's--
Thurgood Marshall: But they didn't.
E. Barrett Prettyman, Jr.: --Well, I wouldn't say that there's no possibility of filing a suit, depending upon how quickly they did it and what xx but this suit is not about, and even Respondents do not say it is about, whether the penalties were correct, assuming that penalties should be issued because we didn't move quickly enough. What the suit is about is whether you can get penalties at all for purely past violations as--
Byron R. White: Mr. Prettyman, suppose there is an on-going violation under your own definition at the time the suit is filed, but within two or three months, the whole matter is cleared up, now, you would say the suit was proper at the outset, but does it then... should it then be dismissed when there is compliance?
E. Barrett Prettyman, Jr.: --If there was jurisdiction at the time that the suit was brought because there was an on-going violation at that time, the District Court got jurisdiction.
Byron R. White: Got jurisdiction and the citizens suit was proper at that time.
E. Barrett Prettyman, Jr.: Correct.
Byron R. White: What happens then when there is compliance?
E. Barrett Prettyman, Jr.: Well, first of all, I assume if he was satisfied with the compliance, he would not issue an injunction, but he may well issue penalties.
Byron R. White: For what?
E. Barrett Prettyman, Jr.: For the period up until the time that they stopped.
Byron R. White: Why could he... well, why should he be able to issue penalties for violations prior to the filing of the suit?
E. Barrett Prettyman, Jr.: Because, Your Honor, at the time the suit was filed, there was jurisdiction and the reason that there was jurisdiction was that this statute required an on-going violation at the time suit was filed and in your hypothetical, there was an on-going violation.
Byron R. White: So, you essentially agreed with the Government in that regard?
E. Barrett Prettyman, Jr.: Absolutely. The Government and we are very close on our interpretation of that, and perhaps I ought to turn then to one difference between us and the Government before I come back to other matters.
Harry A. Blackmun: Mr. Prettyman, I take it your answer to one of Justice White's questions, however, is, or is it, that under those circumstances, the District Court should dismiss the complaint?
E. Barrett Prettyman, Jr.: No.
Harry A. Blackmun: Jurisdiction and then there was compliance, what happens to the lawsuit?
E. Barrett Prettyman, Jr.: No. What I would say under those circumstances is that he should not issue an injunction if he's satisfied that there is true compliance and abatement, but that he may well decide to issue penalties because he had jurisdiction at the time that the suit was brought. Now, I want to say just one thing before I get to this business of allegations. I just want to point out to you that, really, this statute makes no sense if you're going to treat it as going to past violations. Let me just give you two brief examples. The citizen would be giving notice of something that's already abated. All the courts that have looked at this agree that one of the purposes of giving sixty-day notice to the permit holder is to allow him to get himself into shape and to abate, to get rid of the problem. Here you have a situation where somebody is suing for penalties five years old, maybe fifteen years old, because we don't know what the statute of limitations is. There is none in the statute. So, you're suing for fifteen years old and you're giving the man sixty days notice for what? It doesn't make any sense. The only thing that makes sense is that you're giving him sixty days notice of an on-going violation. One other example. The citizen couldn't sue for past violations when the Administrator is already suing for on-going violations. I realize this is a little difficult, but if you will look at the language in 1365, you will see that what it says is that when the Administrator is actively prosecuting a suit for compliance, the citizen can't come in and sue. Now, the only way that makes any sense at all is if they're both trying to sue for the same thing; that is, the citizen is trying to sue for an on-going violation, and the Government is suing for an on-going violation. If you have the citizen stopped from suing for past violations because the Government is suing for present or the Government is not suing for present and they are both suing at the time, same time, for past, it doesn't... the statute doesn't hang together. It makes no sense. But let me move then to the one point of difference between us and the Solicitor General, and that is this business of the allegation. He puts a great deal of stress on the word "alleged", and he feels that a good faith allegation of on-going violation gets the citizens past the jurisdictional requirements of an on-going violation. Now, I want to emphasize, as we've already pointed out, that the Court of Appeals never passed on this, and that even the District Court said that the good faith allegation related only to TKN and, Justice O'Connor, TKN was the smaller part, as you know, of the award. A million dollars was for chlorination, which stopped twenty months before. But even as to TKN, that's very confusing because the Government concedes that once you make an allegation and we contest it under 12(b)(1), the Court can go behind it, and all we're saying is here you xx allege all you want to that something is on-going but if, in fact, we challenge you, you have the burden of proving that it's true. This is true in any kind of a suit. It's true in a suit where I file a suit against you on diversity grounds in Pennsylvania and I attach all of your prior reports to show you were there and you file a motion dismissing saying I'm sorry I moved into your state of Maryland since my last report.
William H. Rehnquist: Isn't the Government's position that it should apply something like Rule 11 of good faith belief?
E. Barrett Prettyman, Jr.: Yes, but look what that does, Your Honor. Someone who files a group of DMRs just as someone who files your last ten quarterly reports would, in good faith, believe that we are in the midst of an on-going violation or that you are located in Pennsylvania. But if that is attacked and, in fact, you have moved from Pennsylvania into Maryland and if, in fact, our violations have come to a halt prior to suit, they have been abated, they have been cleaned up and stopped, which is the purpose of the Act, then all we're saying is that you can't go ahead with a suit where a mere allegation gets you to trial. If the allegation is wrong, it doesn't make any difference what your good faith is, it is wrong. I see I don't have much time left, and if I could, I'd like to save just a few moments for rebuttal. Thank you.
William H. Rehnquist: Very well, Mr. Prettyman. We'll hear now from you, Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice, and may it please the Court: It may be useful to begin by indicating the degree to which both the District Court and the Court of Appeals did deal with the question of whether there was a risk of repetition of the violations which it had noticed for the past. I simply want to draw the Court's attention to two footnotes, both reproduced in the Appendix to the Petition. The first one is from the District Court Opinion and appears on page 38(a). It's Footnote 8, and there one finds the District Court's holding, alternative holding, that at the time the complaint was filed, there was sufficient ground to believe in good faith that the problem had not been cured. What is more, the Court itself indicates--
William H. Rehnquist: Is that in Footnote 8, on page 38(a)?
Louis F. Claiborne: --Yes, Your Honor. The problem of determining whether a violation is continuing is highlighted. Well, in this case, skipping a bit, with the history of violations, its TKN violations, in the winter time, Gwaltney had just experienced another winter of repeated violations, despite the change it had implemented in its waste water treatment system. At the time of trial in December 1984, now that's six months after the complaint was filed, one of Gwaltney's own witnesses expressed doubt as to whether Gwaltney would meet its TKN violations... limitations. It was not until Gwaltney had experienced a full winter, the following winter, after the trial, without problems that it could make its motion to dismiss based on its present compliance with a secure belief that it was, indeed, in compliance. Now, the Court of Appeals, and here I refer the Court to page 7(a) of the Appendix and Footnote 9, looking at the second paragraph of that footnote, and the second sentence of that paragraph, the Court of Appeals says "a very sound argument can be made that Plaintiff's allegation of continuing violations were made in good faith despite the fact that Gwaltney had not actually violated the Act since May 15th, 1984. "
Sandra Day O'Connor: Well, Mr. Claiborne, what about the Footnotes 25 and 26 that Mr. Prettyman referred to in the District Court Opinion, which basically say the District Court believes that to conclude there were continuing violations would be too speculative on the present record?
Louis F. Claiborne: I think those, Justice O'Connor, those two statements can be reconciled. What the Court is saying is that at the time of filing and at the time of trial, there was ground to fear that there would be repetition of the excedences, so called; that is to say, violations in winter time. By the time this opinion is written in June of 1985, the Court, having experienced a winter without violations, is now saying we don't have ground to fear for the future any longer. They are different times we are talking about.
Sandra Day O'Connor: You don't think the District Court Opinion reflects the situation as of the conclusion of the trial?
Louis F. Claiborne: I do, Your Honor.
Sandra Day O'Connor: And that these footnotes indicate that the Court found that too speculative to find an on-going violation at that time?
Louis F. Claiborne: That is exactly... Justice O'Connor, I may have mis-spoken. What I meant to indicate was that the Court found that in June of 1984, when the complaint was filed, and in December of 1984, when the trial was held, there was still ground to fear that the system, the new system, would not handle the problem during the winter. When this opinion is written and that is what the ultimate footnotes are addressing now, judgment being entered, it would be speculative to suppose that... the winter having gone by without incident, it would be speculative to suppose that there would be problems for the future.
Byron R. White: Once the trial was over, how does the Court know what's happened between the time the record is closed and he writes the opinion?
Louis F. Claiborne: I don't know, Your Honor, I, frankly, don't know whether the Court was made aware of the absence of violations between December and June.
Byron R. White: Well, I would suppose that he was reflecting in these footnotes what was true at the termination of the trial.
Louis F. Claiborne: Well, I'm attempting to tax the District Judge with--
Byron R. White: That would be the normal... wouldn't that be the normal assumption?
Louis F. Claiborne: --Well, Your Honor,--
Byron R. White: That he'd be writing his opinion based on the record that was made.
Louis F. Claiborne: --the footnote to which I have referred, Footnote 8, very clearly indicates that not only in the Court's view, but in view of the expert for the Defendant there is ground to fear that the problem had not been solved as of the date of trial in December 1984.
Byron R. White: Well, why shouldn't the rule be for this jurisdictional argument or the citizen bringing suit, at the time of filing the suit, which in a lot of courts will be an awful long time before the trial.
Louis F. Claiborne: Your Honor, xx is only a preamble to xx is Your Honor has indicated, xx is perhaps a little logic in focusing on the state of mind of the Plaintiff and the grounds for objective belief at the time of filing as opposed to the time of judgment, and, yet, my learned friend, seem to indicate that he would condone the assessment of penalties entirely for the past provided that at the time of filing there were an on-going violation, even though it had been demonstrated that the problem was cured before judgment was entered. Now, that, to us, highlights the reason why it is not sensible to focus on the notion of on-going violation at all, whether at the time the suit is filed or at the time when judgment is entered, and it is for that reason that we cannot embrace either the 1st Circuit's decision or the Government's brief here, albeit they might resolve this case favorably to us, because it seems to us that the logic must be that if it matters whether there's an on-going violation, the time when that matters is when penalties are being assessed, not when the suit is being filed.
Byron R. White: So, you want us to take the case as it comes to us and decide whether the Court of Appeals is right or wrong?
Louis F. Claiborne: Indeed.
Byron R. White: On its theory?
Louis F. Claiborne: On its theory.
William H. Rehnquist: On your construction of the statute, what do you make of the purpose of the sixty-day notice provision, which your opponent says doesn't make sense unless it's given opportunity to abate?
Louis F. Claiborne: I'm grateful to the Chief Justice for having focused my attention on that question. Legislative history as to the reason why that sixty-day provision was inserted never mentions one reason being to afford the violator an opportunity to get off the hook. That is no where suggested in the legislative history as a reason for the notice. The reason for the notice is to allow the Government, indeed, both Governments, federal and state governments, to take this opportunity to decide whether they wish to enforce the Act and thereby preempt the citizen's suit, and that is--
Antonin Scalia: But the notice doesn't just go to the Government; it's notice both to the Government and to the violator. What's the reason for the notice to the violator?
Louis F. Claiborne: --I suppose, Justice Scalia, that there are two reasons for the notice going to the violator. The first is that when a violator or an alleged violator is being reported to the authorities as such, as violating the Act, it seems only fair to give him notice of that, not so that he can get off the hook for the past violations, but perhaps so that he will more quickly come into compliance and afford himself an opportunity to be liable for fewer penalties for a shorter time. It does have that effect of goading the violator into ceasing more quickly, not in order to be totally absolved for the past, but to shorten the period for which he will owe penalties. If, indeed, penalties are appropriate and we do not maintain that penalties are always appropriate no matter how isolated the violation, no matter how old it may be, no matter how quickly it was corrected, those are matters which the District Court in its discretion may determine at the penalty phase it had no bearing on the jurisdiction of the Court to entertain the case--
Sandra Day O'Connor: Well, Mr. Claiborne,--
Louis F. Claiborne: --and ever bearing on the--
Sandra Day O'Connor: --I'm troubled by suppose we have a situation of two or three isolated violations, five years before the suit is filed, and the citizen files the suit seeking only civil penalties for those prior violations. Now, you want us to hold that that kind of a suit is perfectly permitted and that the Court has jurisdiction, right?
Louis F. Claiborne: --I would say, Justice O'Connor, there may be a question about whether five years is beyond--
Sandra Day O'Connor: Well, there's no statute of limitations.
Louis F. Claiborne: --Well, that's not entirely clear. There is a suggestion that the statute--
Sandra Day O'Connor: Well, let's not go off on that. Let's assume there is none.
Louis F. Claiborne: --It so happens the statute of limitations would be applicable as a five-year one which is the only reason I mentioned it. But let's say it's four years ago and otherwise the matters are as Your Honor suggested, that is a case in which we would say there is jurisdiction in the District Court to entertain the citizen complaint.
Sandra Day O'Connor: Well, now, the penalties go only to the Government, is that right?
Louis F. Claiborne: That is so.
Sandra Day O'Connor: And how does the citizen have standing in a constitutional sense to come in and get those?
Louis F. Claiborne: Well, let me say, first, that the question of standing had not been taken to this Court.
Sandra Day O'Connor: Well, I know, but doesn't that form an interpretation of the statute?
Louis F. Claiborne: Well, it may be that because the standing in strict sense is jurisdictional, it's before this Court in any event, and I'm not trying to avoid the question; I'm just giving a preparatory explanation. In our view, standing in the citizen complainant, and he must be under the statute not any citizen but one who is aggrieved by the pollution which occurs, that means, and as is true in this case, that a member or more members of the organization must live on or near the affected water and be injured by its pollution, either in his commercial or recreational activities there. That shows that he has injury in fact. Now, it is perfectly true that the assessment of penalties will not immediately and directly redress that injury, but it will have a substantially beneficial effect on his interest in that river in the following three ways: first, the threat of the imposition of such penalties is likely as the EPA policy on penalties is at pains to indicate to deter him from violating in the first place. But even after he has violated, if he has been assessed substantial penalties, it is an assurance that he will not return to his old ways. Even in circumstances where injunction would not have been necessary, the assessment of penalties against him does obviously deter him from doing it again.
Sandra Day O'Connor: Well, it seems to me--
Louis F. Claiborne: But, thirdly,--
Sandra Day O'Connor: --that really is stretching any traditional notice of standing.
Louis F. Claiborne: --Your Honor, I think not. It has a very particular effect on the particular river and the particular injury that this individual Plaintiff is concerned about, and the third way in which it relieves his concern is that it deters not merely that same violator but others on the same river or river system who would otherwise feel free to pollute the river until enjoined.
Antonin Scalia: On that analysis, you would say that Congress would have the power to confer standing upon any citizen to prosecute violations of crimes within his community, right? Congress could pass a law saying the United States Attorney shall no longer be the sole person who can prosecute crimes, but any person in the community in which a crime occurred may bring a prosecution?
Louis F. Claiborne: Justice Scalia, there are, I assume, independent reasons not related to standing why an individual ought not be permitted to prosecute criminally. So far as the answer on standing, I suppose the answer must be yes, that prosecuting for crimes and prosecuting for penalties would serve the interest and protect the values in that river to the same degree, but--
William H. Rehnquist: But I thought your answer to Justice O'Connor's question was that you had to be affected by the particular pollution in question before you could sue as a citizen and, therefore, it seems to me your answer to Justice Scalia ought to be the logical counterpart would be to allow victims to bring a prosecution for crime but not just anyone in the community.
Louis F. Claiborne: --Well, I suppose that Justice Scalia was really asking me, and I shouldn't be making such assumptions, whether this same citizen who lives on or near the river would have equal standing to bring a criminal prosecution as he does in my submission to bring an action for civil penalties, and put that way, my answer is yes, he's got equal standing, but the privilege of prosecution is one that, for other constitutional reasons, not standing, are not available to the ordinary citizen.
Byron R. White: You never got to your third reason, the third way that a citizen... that this person is affected.
Louis F. Claiborne: Justice White, the third way is in deterring others--
Byron R. White: I see.
Louis F. Claiborne: --on the same river who would otherwise feel sanguine about polluting the river, and I must say that we are talking here about the imposition of civil penalties, not a marginal peripheral unimportant sanction. It is, as the EPA policy has made clear, probably the most important sanction in government enforcement. One would suppose that when the citizen is given the privilege of standing in for the Government, provided he has standing or personal interest in the matter, he ought to have as much as possible the same weapons. Now, he cannot issue administrative orders. He cannot institute criminal prosecutions, but when it comes to civil actions, one would expect him to be able to obtain like relief and this relief, the imposition of penalties, is the most important instrument because, otherwise, a polluter has every incentive to delay compliance and to profit by his advantage over complying competitors and to delay the expenditures.
Byron R. White: Are attorneys' fees available in these suits?
Louis F. Claiborne: They're available in both directions, Your Honor. Congress was well aware that there might be a tendency to abuse the citizens supervision, so it provided and the legislative history notes it that attorneys' fees are available to the Plaintiff, but they're available against him if he files frivolous, vexatious or harassing litigation, and that, of course, is a deterrent to the frivolous plaintiff who--
John Paul Stevens: Mr. Claiborne, what is the status of the civil plaintiff who's a property owner along the river who says his property was damaged by the pollution? Does he have any remedy?
Louis F. Claiborne: --Under this Court's holding that there is no action for damages in federal law, he would not be able to invoke either the Clean Water Act or the Federal Common Law in order to make himself whole, but he would be free to invoke state damage remedies.
John Paul Stevens: Isn't that sort of anomalous?
Louis F. Claiborne: It would be state law to obtain damages.
John Paul Stevens: Isn't it sort of anomalous that there's no federal remedy for the direct injury, but there's standing to sue on behalf of the Government for penalties?
Louis F. Claiborne: Well, it isn't--
John Paul Stevens: Not really on behalf of, but--
Louis F. Claiborne: --It would be extraordinary if the solution to the standing problem were to have a Treetom action, which the Court has more than once indicated presents no constitutional problem, which Congress only last year reaffirmed and widened with respect to the False Claims Act, thereby if we had a Treetom action in which the informer had a pecuniary interest because he got a share of the assessment and, yet, he would widen the class of potential plaintiffs to include any citizen, as is true under the False Claims Act, now that simply cannot be a way one solves a constitutional standing problem and, yet, it would seem to be, if this Court were to hold that there is such a problem, a simple remedy for Congress at the next session. Now, I want to... I am making a very disconnected argument, but I want to stress that Congress did not use language in this statute with all the precision that one might have hoped for. There is loose language. There is misuse of language. That is easily demonstrated by anyone who reads the Act. It seems to us that the Court ought to prefer to tax Congress with loose language, a lapse of tense perhaps, not clearly but perhaps, even somewhat illiterate sentences here and there, rather than to attribute to Congress a scheme which is downright nonsense. It is downright nonsense to say there shall be penalties assessable in citizen suits. As to that, there can be no question. The statute says so. It certainly works. And then to say oh, but, that means only in those rare cases, because they must be rare, in which despite having been notified sixty days before, the polluter is so perverse and so improvident as to continue his evil ways until the day of filing or perhaps the day of judgment, maybe that's the Government's position, I'm not sure, because otherwise he is excused from all penalties and the Court has no power to impose them. One thing or the other. It is conceivable to hesitate to give the power to assess penalties going to the Treasury for private payment. One can understand that, but once you do give a plaintiff that power, you don't take it all back from him and make it available only in that rare case that it will almost never occur; that is the case where the polluter is so perverse and so improvident as to continue his violation long enough to give the Court jurisdiction to enter these awards. That simply cannot have been the intent of Congress. The... it was mentioned that Section 505(1)(b), this is reproduced in Petitioner's brief at page 3, refers to an action to require compliance and that is an action to require compliance by a citizen which would be barred if the Government had previously filed. And the suggestion is that an action for penalties is not an action to require compliance; therefore, Congress is telling us here that it never intended to authorize an action for penalties. Now, we know it did. So, we're a bit at a loss, but the other thing to be noticed about this provision is that it doesn't use language quite so fastidiously. The words are that the Federal or State Governments, the citizens suits will not lie if the Federal or State Governments has commenced and is diligently prosecuting a civil or criminal action in a court of the United States to require compliance with the standard of limitations and so forth. Let me say a criminal action is not, strictly speaking, an action to require compliance any more than an action to collect penalties. What is proved here is simply that Congress was not punctilious in its use of language, not that it meant that there was no action by the citizen to secure an assessment of penalties. Indeed, the Congress, in 1985-86 and '87, made quite clear that it understood itself some years earlier to have authorized citizens suits in respect of wholly past violations and to the assessment of penalties without an injunction in those circumstances. I draw the--
Antonin Scalia: --Mr. Claiborne, that section may bring the realization of the question I asked you because it permits the citizen to intervene as a matter of right in the criminal action apparently.
Louis F. Claiborne: --Again, Justice Scalia, I wonder whether they really meant it. I think that is rather a lapse. We do not claim that right. The Section 309(d) was added in 1987. It had been prepared in 1985 and 1986, the provision, for quite independent reasons, was vetoed by the President, and, so, was not enacted in its final form until 1987. Its purpose, so far as we're concerned, was to add to the Clean Water Act an ability for the Administrator to assess penalties administratively. He had already issued cease and desist orders administratively, but he could not assess penalties in this way. Having given the Administrator that authority and we are clear on both sides that this authority relates solely to past events, solely to past violations, which attract the civil penalties, Congress went on to say that a citizens suit would lie in respect of the same violations only if notified or filed before the Administrator acted. Now, according to the Petitioner, that was unnecessary to say because there could be no citizen suit notified or filed in respect to purely past violations. Here is Congress indicating that it understood otherwise. I may say that the Petitioner himself obviously understood otherwise during the eleven months before the filing of the motion to dismiss on this ground and when it took the trouble to seek amendment of the summary judgment that had been entered in August 1984, to absolve itself in respect of the violations that had occurred before it acquired the property, what was the point of that, except that it feared that penalties would be assessed in respect of those old violations. It was only eleven months later that, and only when the 5th Circuit handed down its Hamford decision that anybody for the first time focused on the present tense in 505 and said, oh, this qualifies, the entire statute, we had it wrong, no penalties can be assessed in a citizen suit, except only, when for reasons not easy to understand, when they are, in effect, combined with an injunction. The one time you don't need penalties because the injunction serves the purpose and its violation will, of course, attract civil and criminal contempt penalties of its own. For these reasons, we pledge affirmance of the judgment of the Court of Appeals.
William H. Rehnquist: Thank you, Mr. Claiborne. Mr. Prettyman, you have two xx--
E. Barrett Prettyman, Jr.: Just a few very quick point, Your Honor. I would urge that you read the end of Footnote 9 which my good friend for the Respondent xx did not get to, and call your attention to the first part of it. We filed a motion to dismiss almost a year after the last violation, which clearly alerted the District Court Judge that there had been no violations during the course of that year when he ruled he was fully familiar with that. I have to go outside of the record to make the following statement, and that is that there have been none for now four years, and I say that with equanimity because I am sure my Respondents won't dispute it. There was one hurricane upset, but other than that. The problem with the Article 3 is that I think it may be directed to your question, Justice Scalia, to perhaps the wrong point. The real problem with Article 3 is redressability; that is, when all of the penalties go to the Government and you don't have an injunction going to the underlying fact, you have an injury that is not redressed by any remedy and that xx the Article 3. xx the Court to be very careful here if it's going to open the flood gates to these past suits because you know you're not only going to have these federal suits for going back we don't know how many years, maybe fifteen, but we're going to have many state claims, you're going to be trying state claims in federal courts going back fifteen years, which is going to be attached to these federal claims, which is going to cause great hazard to the federal courts. Thank you very much.
William H. Rehnquist: Thank you, Mr. Prettyman. The case is submitted.


Warren E. Burger: We'll hear arguments first this morning in Summer v. Mata. Mr. Brady, you may proceed whenever you are ready.
Thomas A. Brady: Mr. Chief Justice, and may it please the Court: This case is before the Court on a writ or certiorari to the Court of Appeals for the 9th Circuit. That court reversed an order of the district court which denied the respondent Mata's habeas corpus petition. The court further ordered that on any retrial of the respondent Mata evidence of identifications of him by two eyewitnesses could not be admitted. This defendant and his two codefendants--
Byron R. White: You mean evidence, in-court identifications, or evidence about a pretrial identification?
Thomas A. Brady: --As I read the opinion, Your Honor, it would apply to both.
Byron R. White: Well, which was it? Was there... did it exclude in-court identifications here?
Thomas A. Brady: It is my reading of the opinion that it excluded both identifications, both evidence of in-court identifications and evidence of identifications from a group of photographs.
Byron R. White: At the state trial there was evidence introduced with respect to the pretrial identifications?
Thomas A. Brady: That is correct. This defendant and his two codefendants by the names of David Gallegos and Salvador Vargas were convicted in a California court of the first-degree murder of a man by the name of Leonard Arias. The three defendants were members of the "Mexican Mafia" prison gang. Victim Arias was a member of a rival gang. There was evidence introduced that these three defendants accepted an assignment from the Mexican Mafia hierarchy to kill Mr. Arias because Mr. Arias had stabbed another Mexican Mafia member at the California prison at San Quentin. There was further evidence that they armed themselves and that they stated their intention to kill Mr. Arias. The killing itself occurred at approximately 1:45 p.m. of the 19th of October, 1972.
Warren E. Burger: Where did that take place?
Thomas A. Brady: It occurred in one of the inmate dormitories at the California Correctional Institution at Tehachapi. At the time there was a correctional officer present in this dormitory. He estimated that there were between 30 and 35 inmates there at the time. Although both the prosecution and the defense interviewed many of these inmates, only three of them would ever admit that they had witnessed the killing. Each of these three were hesitant to some greater or less degree to admit that they'd seen anything and hesitant to admit that they were able to identify anyone. The three eyewitnesses who testified at trial were inmates and were residents of this particular dormitory. The first of them was an inmate by the name of Paul Childress. The defendant does not now contend that his identification testimony was improperly admitted. Indeed, Mr. Childress testified that he previously knew the defendant and Mr. Gallegos and he was able on the day after the killing to identify them by name, and to select their pictures, as well as a photograph of the third defendant from a group of several hundred pictures shown to him. The other witnesses were inmates by the name of Rigoberto Almengor and Jay Allen. Both of them testified that they were walking with the victim when he was suddenly set upon by three men armed with knives who appeared to have been waiting for him. Both of them testified that this fatal struggle took several minutes, perhaps as long as four minutes. Almengor testified that at one point during it he struggled briefly with the defendant. He made eye contact with the defendant, the defendant broke off his attack on the victim and commenced an attack on Mr. Almongor. This lasted a short time. Thereafter Mr. Almengor backed off from the defendant, they faced each other from a very short distance, Mr. Almengor then turned his attention back to the victim, but once again he and Mr. Mata backed off. They faced each other from a short distance, and at this point Almengor indicated that he wanted no part of this struggle that was going on. Mr. Allen testified that he too struggled briefly with one of the other men but then he backed off a short distance from the struggle and began yelling for help. On the day of the killing Mr. Almengor was shown several hundred pictures of inmates at the institution. From these he was able to narrow it down to a group of four of them which he said were similar in appearance to the men he had seen. It should be emphasized that his identifications at this time were not positive. In fact, he selected more pictures at the time than he said there were assailants. Mr. Allen was also interviewed this day. He stated that he did not want to get involved and for this reason he told the prison authorities he was able to identify no one. Because of this they showed him no pictures. In the next few days after this there is evidence in the record that a riot was occurring at the prison and that the investigation was postponed for a short time because of this. Finally, on the 27th of October, approximately eight days after the killing, the three witnesses were shown a group of 24 pictures of inmates. This was People's Exhibit 23, introduced at trial, and it as well as People's Exhibit 24, which I'll mention in a moment, has been brought before this Court. Mr. Childress was able to identify all three of the defendants from this initial photo display. Mr. Almengor identified a photograph of Mr. Vargas only. Again his identification was not positive. He stated that the pictures that he was looking at seemed to him to be outdated and he asked the prison authorities to see what they could do about getting some new pictures for him to view. Mr. Allen saw the same group of pictures that day. He was able to identify no one. He too commented that he thought new pictures would be helpful. In a few days following this the prison authorities attempted to take new pictures of a number of inmates. Only those of the three defendants turned out. These three pictures were placed in a different group of 15 pictures, which is People's Exhibit 24, which were shown to the witnesses on the 30th of October. The identifying information on these pictures, the names and the dates the pictures were taken, that was covered at the time. At this point both Allen and Almengor identified all three of the defendants. At trial the two of them stated that they were now sure when they saw Mr. Vargas in person at trial that he was not one of the people who attacked the victim. They remained firm, however, in their identifications of the defendant and Mr. Gallegos. I believe that the 9th Circuit's opinion is in error in several respects. The first error is its statement of the standard for determining the admissibility of identification evidence in a case where pretrial photographic identification procedures have been used. The 9th Circuit stated that the appropriate standard required a two-part approach. First, a court should look to the necessity for use of photographic identification procedures. Here, since the defendant and his codefendants were state prison inmates, the court found that there was no necessity for the use of photographic identification procedures. From this lack of necessity it proceeded directly to a determination of whether there had been a likelihood of misidentification. The lack of necessity was said to be an important factor weighing against the admissibility of their identification evidence. It is our position and our belief that this Court has never held that necessity or lack of necessity for use of a particular procedure is part of the constitutional standard. Indeed, the Court has rejected attempts, most recently, in Manson v. Brathwaite, to have generalities such as this included in what is basically a fact-oriented balancing process. The Court has, in Simmons v. United States, and again in U.S. v. Ash, declined the opportunity to formulate special rules in cases where pretrial photographic identification procedures have been used. The Court has, instead, applied what we believe is a consistent standard of due process fairness in all cases involving the use of pretrial identification procedures. It has applied the same standard whether photographic identification procedures were used, whether a live lineup or showup was used, or whether there was a combination of these factors. I believe that this Court's due process standard focuses on two things: first, the suggested nature of the particular pretrial confrontation involved in the case; and, second, the reliability of the identification evidence. We believe that the Court's consistent treatment of all these situations makes it clear that it believes that due process does not require that a particular procedure be used, or that the use of one procedure as opposed to another should be penalized. Rather, I believe the Court's cases require only that the procedure which is actually used not be so unfair to deny a defendant due process. We therefore ask the Court to reject the 9th Circuit's approach and to affirm the approach which has been adopted by the 5th Circuit and by the majority of the other courts which have considered the issue. And that approach, very briefly stated, is as follows. First, if the defendant objects to the admission of identification evidence, a court should first ask itself whether the pretrial identification procedures actually used have been so impermissibly suggestive that they could give rise to a very substantial likelihood of mistaken identification. The focus here is on the particular identification confrontation and the circumstances surrounding it. The Court may consider, for example, any circumstances tending to suggest that the witness should identify a particular person or not identify a particular person. It may consider the circumstances of the crime, the extent that they have a bearing on the question of suggestiveness. If and only if the Court should determine that the pretrial identification procedures used were so impermissibly suggestive that they could give rise to a very substantial likelihood of mistaken identification, does it become necessary to determine whether in fact it it is likely that they had this effect. In making this latter determination the focus is on the reliability of the identification evidence. It is at this point that the Court applies the five factors stated in Neil v. Biggers, and restated in Manson v. Brathwaite, and any other factors bearing on the question of whether the identification evidence is reliable.
William H. Rehnquist: Mr. Brady, the procedural history of this case is that these was a trial in the Superior Court, appealed to the Court of Appeal, the judgment of conviction affirmed, and then federal habeas sought. Is that right?
Thomas A. Brady: Yes, sir.
William H. Rehnquist: Did the State Court of Appeal pass on the eyewitness identification issues that you've been discussing?
Thomas A. Brady: Yes, sir, it did. It found that there was no impermissible suggestion in them.
William H. Rehnquist: And the 9th Circuit disagreed with the State Court of Appeal?
Thomas A. Brady: With the State Court of Appeal, and also with the district court.
Byron R. White: Did the district court hold a hearing, or rely on the state record?
Thomas A. Brady: The district court, as did the 9th Circuit, relied solely on the state record. There was no evidence, no new witnesses.
Byron R. White: Did they apply the same standards?
Thomas A. Brady: Well, it's our position the 9th Circuit did not apply the same standard that apparently the district court did, or the state courts. Neither of them mentioned the concept of necessity. The only cases cited in either of the lower courts were this Court's cases, particularly Simmons.
Byron R. White: Assume you agreed with the standard, the legal standard that the 9th Circuit applied. Would you be here still?
Thomas A. Brady: I believe we would, Your Honor.
Byron R. White: You think they're... whatever else there is, you think the 9th Circuit disregarded state courts' findings without--
Thomas A. Brady: Yes, Your Honor. That is another one of the reasons which brings us here, our belief that the 9th Circuit did not apply Section 2254 when it should have.
Thurgood Marshall: --Mr. Attorney General, what about the possibility of a lineup? There wasn't any problem in having a lineup if you wanted one, was there? Is there any reason why they didn't use a lineup?
Thomas A. Brady: Yes, sir. The record suggests several reasons.
Thurgood Marshall: It wasn't for the lack of people.
Thomas A. Brady: No. One reason appears to be the fact that a riot was going on in the prison at that time. A second reason appears to be that all of this was occurring in a prison which, as was stated in Judge Sneed's dissenting opinion in the 9th Circuit and has heed stated in many other places, a prison is a unique world and inmates there are not generally very favorably disposed to come forward and give evidence to identify other prisoners as being responsible for crimes.
Thurgood Marshall: Well, that wouldn't have stopped them from getting in a lineup.
Thomas A. Brady: No, it would not physically stop them, but it is one reason why a decision may be made that the use of photographic identification procedures--
Thurgood Marshall: But the question was never gone into by anybody?
Thomas A. Brady: --No, there was no objection to the admission of the identification.
Thurgood Marshall: I thought one of the three did ask for a lineup.
Thomas A. Brady: One of the three men mentioned that. This was on the 27th of October, I believe, after he'd seem the first group of photographs. Thereafter he saw a second group of photographs, did not renew the request for a lineup, and he apparently felt that the second group of photographs was--
Thurgood Marshall: But it never was explained in this record why his request was refused.
Thomas A. Brady: --It was alluded to at one time only by--
Thurgood Marshall: My question was, was it ever explained?
Thomas A. Brady: --No, sir, not in so many words.
Warren E. Burger: What did the district court, the federal district court hold on the habeas corpus hearing? They denied relief. They found that... on a fairly conclusory opinion found although the identification procedures used were deficient in some respects, nonetheless, taken as a whole, the identification evidence was still reliable and was still properly admitted. So, by the time this case got to the 9th Circuit Court of Appeals, three courts had held that there had been no miscarriage of justice: the state trial court, the state Court of Appeal, the federal district court, is that right?
Thomas A. Brady: Yes, Your Honor, that is correct, although the state trial court was not expressly called on to resolve the issue.
Potter Stewart: And although the federal district court talked about irregularities, didn't it?
Thomas A. Brady: Yes, Your Honor.
Potter Stewart: But neither the federal district court nor the United States Court of Appeals dealt with your 2254(d) argument at all, did they? Did they mention it?
Thomas A. Brady: No, Your Honor, they did not.
John Paul Stevens: When did you first raise that argument?
Thomas A. Brady: The 2254(d) argument was first raised in the district court, in our return. We stated at that time that the findings of the State Court of Appeal should be accorded the presumption of correctness, mandated by 2254. We said that this was necessary, because since there had no objection at trial, the trial court was not really called upon to make fact-findings regarding this identification issue.
John Paul Stevens: Did the trial court... I understand there was no objection to the testimony about the photo identification procedure. Is it also true there was no objection to the in-court identification?
Thomas A. Brady: That is correct, Your Honor.
John Paul Stevens: But you didn't argue as a matter of California procedure that they therefore could not raise this whole problem in the Court of Appeal, did you? That they'd waived their constitutional objection by failure to object in the trial court?
Thomas A. Brady: Well, let me approach this this way. In the United States District Court, we argued that there had been a procedural default by this failure to object. In the district court, however, we were required to acknowledge that there was a controlling 9th Circuit case which would hold that the state Court of Appeal treatment of the issue substantively would act as a forgiveness of any default. The same thing held true in the 9th Circuit. They could not argue that in the 9th Circuit because there was controlling 9th Circuit precedent which one panel could not overrule another.
William H. Rehnquist: And the state Court of Appeal here did treat the matter on the merits, did it not?
Thomas A. Brady: No, Your Honor, I don't believe that... well, it passed on the constitutional validity of the identification procedures but it's our position that by so doing it did not forgive any procedural default. California's contemporaneous objection rule does not preclude a state appellate court from considering, from discussing a constitutional claim. It precludes it from reversing a judgment of conviction if there has been no appropriate objection. It is our position that in order to forgive a procedural default a state appellate court must not only discuss the issue but also reverse the judgment.
William H. Rehnquist: But, so far as raising the matter beyond the state Court of Appeal, say to bring it to this Court, the defendant would have been perfectly free, I take it, to petition for certiorari on the merits, since the state Court of Appeal had discussed the merits.
Thomas A. Brady: Well, that is one of the questions in this case, Your Honor, whether he would be, or would have been.
Potter Stewart: Isn't your position a little bit inconsistent? If this was just a meaningless discussion, then 2254(d) is of doubtful applicability, isn't it?
Thomas A. Brady: No, Your Honor, I don't think so. The state Court of Appeal here found itself in this rather no-win situation. It had on the one hand the not very appetizing prospect of foreclosing the defendant from relief solely on procedural grounds, or on the other hand, if it wanted any reviewing courts, any federal courts to have the benefit of its views to find out--
Potter Stewart: This is a totally inconclusive discussion, and even if the state Court of Appeal had found the identification procedures wholly improper and unconstitutional, your present submission is it had no power to reverse the conviction, and therefore why is 2254(d) applicable at all if this is just an inconclusive, meaningless discussion?
Thomas A. Brady: --Let me say, it had the power to reverse the conviction but not the right. And I think the Court's treatment of the issue on the merits was not a meaningless discussion. It was meant to inform not only this defendant but anyone else that might be interested in this case, in the future, of what the Court's views on that were, what it believed the appropriate constitutional standard was, the appropriate conclusions. For this reason I don't believe it was at all meaningless.
William H. Rehnquist: Well, then, if that's the case, the procedural waiver of failure to object is almost meaningless in the Superior Court. If the California appellate court has the right to say, even though there was no objection, we're free to to treat this on the merits, and we're free to reverse it if we think it's flagrant enough, or if we think it does fall under the federal constitutional ban.
Thomas A. Brady: In my previous answer I attempted to make the distinction between the power to reverse the judgment and the right to do so.
William H. Rehnquist: I don't understand it. That seems to me somewhat meaningless, frankly, because, when you say it has the power to do it, do you mean that the Supreme Court of California would reverse it if it did that? Or do you simply mean that any court that isn't reviewed further is going to have its judgment enforced?
Thomas A. Brady: Yes, I relieve that is what I mean, that the court... this is the state Court of Appeal... would be able to reverse it. If it is incorrect in doing so, if the matter came before the California Supreme Court, it should reverse the state appellate court's judgment. But from all this, I don't think that we can necessarily say that what the state Court of Appeal did was really meaningless or worthless or kind of a throwaway sort of a thing. The court I think considered the issue in some detail, and I think this Court's previous cases, most notably Wainwright v. Sykes, have encouraged the state appellate courts to deal with issues such as this and to give the federal courts the benefit of their views, the benefit of what thoughts they might have about any particular state procedures or state laws that might be applicable here. And I think it's for this reason that the federal courts should, where a state appellate court has passed on a constitutional issue, give deference to the decision of that state appellate court.
William H. Rehnquist: But that's not because of Wainwright v. Sykes. That's because of 2254, isn't it?
Thomas A. Brady: That's correct. But in Wainwright v. Sykes, I read that as this Court encouraging the state appellate courts to tackle these things on the merits and not really to stand on procedural grounds necessarily.
Harry A. Blackmun: Well, the net result is that your California Court of Appeal chose not to follow its own contemporaneous objection rule. Right?
Thomas A. Brady: Well, that is--
Speaker: In which case, what are we to do about it?
Thomas A. Brady: --Well, that is my point. We don't really know from their opinion whether or not they rejected the state contemporaneous objection rule. It was certainly brought to their attention in our brief. It's a very well-known point in California that would not have escaped them. And I think the fact that they considered the constitutional claim on its merits but did not reverse the conviction does not necessarily mean that they forgave the procedural default.
Potter Stewart: Well, they found no error in the admission of the identification evidence, which would lead to no reversal of the conviction.
Thomas A. Brady: That's correct.
William H. Rehnquist: Well, doesn't that mean that they in effect overruled your suggestion that they not even consider the claim because of a failure to object in the trial court, if they considered it on its merits?
Thomas A. Brady: I do not think you can necessarily imply that, no, sir. Thank you.
Warren E. Burger: Mr. Hendon.
Ezra Hendon: Mr. Chief Justice, and may it please the Court: I think the procedural issues in this case need not detain us terribly long. What we have here is, in the first place, procedural issues brought before this Court which have not been timely presented in the courts below. So far as the record which we have here is concerned, there appears to be no indication that the argument that the procedural default bars federal review was ever raised in the district court. The only thing that we have is a bare assertion in the reply brief of the petitioner that it was orally argued. There is no oral transcript of those proceedings in the district court. I personally did not handle the case in the district court, and so far as I know and so far as the Court is aware--
Thurgood Marshall: I thought Mr. Brady said it was in a response that they filed.
Ezra Hendon: --I think what he said was that their 2254(d) argument was in the brief which they filed. The argument that the supposed procedural default bars federal review, so far as the record that is before this Court demonstrates, was never raised in the district court. In any event, even if it was raised, if you read their brief carefully, what you conclude is that what was raised was a concession that they are foreclosed from asserting any procedural default argument, and in any event it was never raised in the 9th Circuit. So that the issue is simply not properly before the Court, and even if it were properly before the Court, as I understand the remarks of counsel here this morning, he seems to have indicated that, he seems to have agreed that the argument was presented to the state Court of Appeal, he seems to have conceded that the state Court of Appeal had the power to reverse the conviction based on the argument on the merits that was presented, and given those two concessions it seems to me very clear that there is simply no federal interest. There is no interest in comity that is advanced by a federal court in essence regarding a state court ruling which purports to be on its merits as a mere gratuity, and that's the language that counsel uses.
John Paul Stevens: Mr. Hendon, is there not a federal interest, even assuming for the moment there were no California contemporaneous objection rule at all? Not just that they didn't waive it? And supposing a federal judge reviewing the state record formed the conclusion that as a matter of trial tactics the defense counsel decided he would not make any objection to admissibility of the identification evidence, because he thought he might have a greater chance of obtaining a not guilty verdict by cross-examining the witnesses at great length and trying to show improper police behavior, and so forth. Would not the federal court in its interest in trying to reach the right result properly take that trial strategy into account?
Ezra Hendon: Not as a matter... it would not bar the federal court, procedurally to bar--
John Paul Stevens: I understand. It's not a procedural bar, but should it not be a factor that should be considered in the overall picture of whether due process was denied?
Ezra Hendon: --On the merits, yes. I would say that that is... that if the conclusion is that it was a tactical decision, then clearly counsel can't get the benefit of both ends of--
John Paul Stevens: Well, what is there in the record to indicate that it was not a tactical decision here? Surely the objection is one that's well known to trained defense lawyers.
Ezra Hendon: --Yes, this is one of the unresolved issues of this case. It's unresolved because neither lower court ever reached it, and it is not presented, as I read the papers here, in this Court, as an alternate ground for reversal of the Court of Appeal by the petitioner. I don't understand them to be arguing that even if the identification is bad the Court of Appeal's judgment must be reversed because there was a tactical decision not to object.
William H. Rehnquist: But that's not to say that that's not their 2254(d) argument that you're talking about now, is it?
Ezra Hendon: No; no, that's not their 2254(d). I suppose what this Court... well, if this Court were inclined to consider that matter on its merits, I suppose the appropriate... first, the Court, of course, would have to find that the identification was improper, that there is something wrong with the identification. If the Court were then to go on and consider that the--
John Paul Stevens: No, I'm not sure that that follows. I'm suggesting in the analysis of the question whether there was constitutional error committed--
Ezra Hendon: --Oh, I see.
John Paul Stevens: --By letting this evidence into the record. It seems to me one could take into consideration the fact that no objection was made and conceivably that that was a tactical decision by counsel. It's hard for me to reach a conclusion that there's a deprivation of due process in receiving unobjected evidence, evidence to which there was no objection at all, if the objection was available to counsel.
Ezra Hendon: Well, it seems to me that there are two separate questions. One is whether the identification is proper or not, and to resolve that question we look to all of the factors that exist in the case with regard to the identification itself.
John Paul Stevens: Yes, but even if it's improper, no denial of due process takes place unless it's put into the record of the trial. You can do everything, all the suggestive material you wanted in the police station if the witnesses never testify. There can't be any denial of due process from that. The due process issue only arises at trial, as I understand the constitutionality.
Ezra Hendon: Yes.
John Paul Stevens: So that it seems to me the critical point is when the evidence is offered. And if it's improperly received, perhaps a denial of due process could take place.
Ezra Hendon: Yes.
John Paul Stevens: But it's hard to find a denial of due process by the admission of evidence to which competent counsel doesn't make any objection.
Ezra Hendon: Well, I think that assumes the ground of the--
John Paul Stevens: You don't challenge the competency of counsel?
Ezra Hendon: --We did, below. That is--
John Paul Stevens: I'm sorry.
Ezra Hendon: --We did, below, yes. And that was not resolved.
John Paul Stevens: I see.
Ezra Hendon: It was not resolved in the 9th Circuit because the 9th Circuit decided that the identification was improper. What I'm suggesting is that if the Court takes the first step and decides that the identification was improper, and is still concerned about the failure to object, then I suppose an appropriate course would be to remand for further consideration on whether there was a tactically based failure to object. Now, with regard to the 2254(d) argument, I think a fair reading of the record again indicates that that is not properly preserved for review in this Court. It was raised in the federal district court. It was not raised in the 9th Circuit until after the case had been decided. And I simply suggest that this is not... to reach that question, this procedural question on its merits, is basically to reward a kind of off-again-on-again way of approaching procedural issues.
Potter Stewart: Don't you concede the possibility that 2254(d) may impose an obligation upon federal courts regardless of whether or not anybody raises the point?
Ezra Hendon: That may well be. That, I don't think... with all due respect... speaks to the question of whether that issue was properly preserved for--
Potter Stewart: Well, but if the Court of Appeals didn't even mention 2254(d)--
Ezra Hendon: --Yes?
Potter Stewart: --And if 2254(d) does impose some obligation upon federal courts to consider it, and to find an exception to its generalized application... and it lists various exceptions; eight of them, I think... what does it matter if anybody raised it?
Ezra Hendon: Well, if this Court is prepared to hold that in every federal--
Potter Stewart: Well, do you concede the possibility that 2254(d) might impose some obligation upon federal courts, in federal habeas corpus courts?
Ezra Hendon: --I suppose so yes.
William H. Rehnquist: And following up Justice Stewart's question, certainly the phraseology makes it virtually an element of the federal habeas cause of action, does it not? That is it's almost as if it were typical bench trial negligence causation damages: the plaintiff fails to prove causation, the defendant doesn't object, and on review would the reviewing court be prevented from assessing or reviewing what is essentially a basic element of the cause of action?
Ezra Hendon: No, I don't think that they would be precluded from reaching it. It has always been my understanding, and I'm not aware of any authority which suggests that there is a sua sponte obligation on the part of the federal district court or therefore the Court of Appeals to reach that question. And I think this Court would be breaking new ground if it were to decide that.
William H. Rehnquist: Isn't it virtually jurisdictional? I mean, the habeas corpus statute confers a special kind of jurisdiction on federal courts to, in effect, review the same findings that the state courts made and come out differently, if there is a constitutional claim. And if it's jurisdictional it's really our obligation as well as counsel's to investigate whether the jurisdictional requirement was met.
Ezra Hendon: Well, if the conclusion is that it is jurisdictional, then you are correct. I am not aware of authority which holds that it is, and I think in any event it's of no moment here because I don't think we're dealing truly with conclusions of fact; I don't think these are fact findings that we're dealing with. I think we're dealing, properly understood, with conclusions of law, and I think that as I read Justice Powell's footnote in Neil v. Biggers, I think in an extremely similar context he's held as much. I think that what we're dealing here is not so much with the findings of fact as we are with the conclusions, the constitutional conclusions to be drawn from those findings.
William H. Rehnquist: Well, what troubled me about Judge Ely's opinion was that there was absolutely no reference to 2254(d) in it. And if you're right, it seems to me he could have set it aside, set the point to rest in a footnote saying we're dealing here with questions of law and therefore 2254(d) has no force or affect or he could have dealt with it in some other way. But one got the impression that neither the majority nor the dissent in the 9th Circuit had even any knowledge of 2254(d).
Ezra Hendon: Well, with all due respect, Your Honor, I think they had no knowledge of it, and didn't think of it, because counsel never brought it to their attention. Whether it was jurisdictional or not, I think that's the explanation for why it's not addressed. If this Court is inclined to go ahead and treat this procedural issue on its merits, then it has to essentially substitute itself for the 9th Circuit and draw its own conclusions. My point here is that the conclusions which you have to draw are that what the 9th Circuit was dealing with was conclusions of law, the constitutional significance of facts. It was not going ahead and finding any new facts on its own, and I think that's a fair reading of the opinion, regardless of whether the 2254(d) issue is addressed on its face.
Potter Stewart: You are suggesting, then, that 2254 just doesn't address itself to mixed questions of fact and law?
Ezra Hendon: Yes, I am.
Potter Stewart: It's just purely historical facts that it relates to?
Ezra Hendon: That's right. Primary historical facts. I think that's--
John Paul Stevens: But you also contend it only applies to determinations by the finder of fact who actually saw the witnesses? That's a separate question.
Ezra Hendon: --Yes. Well, yes, but here you have the wrinkle that there was no objection in the trial court and the argument that's being made by the petitioner is that the finder of fact in that situation is the Court of Appeal.
John Paul Stevens: But wouldn't you contend that 2254(d) simply doesn't apply unless there's a determination by a trial court?
Ezra Hendon: Yes.
John Paul Stevens: I thought you'd made that argument. There was at least an implicit determination by the trial court when he admitted the evidence, wasn't there? Didn't he necessarily, by implication--
Ezra Hendon: Yes.
Potter Stewart: --Find that there was, it was perfectly proper to admit the evidence, and therefore that the evidence... it was not unconstitutional to admit the evidence?
Ezra Hendon: Yes, but in addressing the question of which primary facts we ought to defer to, which we are not to defer to--
Potter Stewart: There was no discussion, there were no findings of fact as such.
Ezra Hendon: --There was no discussion, so that's why it's difficult to identify them. Now, with regard to the merits, I... as I understood counsel to be speaking this morning... I find that I have no special objection to the test that's proposed here, that is we look first to suggestiveness, secondly we look to necessity and we ask the question with regard to suggestiveness whether these identification procedures could have been suggestive. And with that statement I think what I'd like to do is identify what I regard to be the issue in this case. It seems to me that in Manson v. Brathwaite and in Neil v. Biggers, this Court made clear that the focus of the inquiry in eyewitness identification cases is suggestiveness and reliability, and that the issue that's raised by this case is what a court may properly consider in passing on the question of whether a given identification is suggestive and reliable.
William H. Rehnquist: You're suggesting then that basically the 9th Circuit and the state Court of Appeal applied the same legal test for eyewitness identification?
Ezra Hendon: The same as each other, each... as each other?
Speaker: Yes, that they roughly applied the same test but reached different results.
Ezra Hendon: Yes, I would say that that's--
William H. Rehnquist: Well, then, wouldn't you feel that there was some obligation on the Court of Appeals to say that the state Court of Appeal was, that your client had demonstrated by clear and convincing evidence under 2254(d) that the state Court of Appeal was wrong?
Ezra Hendon: --I think that the only obligation that the federal court had was to apply the law, the proper law, whatever this Court finds it to be, to not substitute its findings of fact for those that already were made, and to draw constitutional conclusions from them. If the constitutional conclusion that the federal Court of Appeals reaches is different from the conclusion that the state Court of Appeal reached, then that issue will be resolved here, but I don't think they had any independent obligation to apply a different standard, a clear and convincing evidence standard, if I understand the thrust of your question. I think the only obligation was to apply the law and to draw their conclusions from it.
William H. Rehnquist: How do you read the Subsection 8 of 2254(d) then, where it says that, where a factual issue was determined by the state court, the burden is on the habeas petitioner to prove by clear and convincing evidence that it was wrong?
Ezra Hendon: Well, it seems to me that that clear and convincing evidence standard is a part of the already existing legal standard, and that by implicitly, by coming to the conclusion that it came to here, the 9th Circuit has in essence said that.
William H. Rehnquist: Well, you think that on an appeal, say, within the federal system that doesn't involve federal habeas, that a court of appeals could reverse the admission of identification testimony by a district court only if it found that it was clear and convincingly wrong, rather than just wrong by a preponderance of the evidence?
Ezra Hendon: You're asking me whether, on a direct appeal, and in a federal case?
William H. Rehnquist: On a direct appeal, yes?
Ezra Hendon: Well, I have to plead ignorance on that Your Honor. I do not practice in federal--
Potter Stewart: Well, in a direct appeal of a federal criminal conviction, a federal reviewing court sets the conviction aside if it finds that there was error in the trial, and I don't know that there's ever been... it doesn't need to find that beyond a reasonable doubt or by clear and convincing evidence; it just finds that there was error in the trial, error in the admission of evidence or error in the instructions to the jury, or error somewhere else.
Ezra Hendon: --I think that's the point that I have been trying to make, or I tried to make at the outset of Justice Rehnquist's question, that the obligation of the reviewing court is to apply the legal standard that this Court tells it to apply.
Potter Stewart: Generally there's no great argument about what happened at the trial because you have the trial record and you know how the judge did instruct the jury, and you know what was admitted in evidence, and so on.
Ezra Hendon: You have that here too.
Potter Stewart: So, if you conclude that that was erroneous, something about it, that it was prejudicial, a judgment of conviction is set aside.
Ezra Hendon: You have that here too. I don't think there's any problem with the record in that regard. This is a fully litigated issue and you have a complete record on the eyewitness identification question. It seems to me that the dispute between the parties on the merits in this case is essentially whether the Court of Appeals ought to have been free to consider necessity, the lack of necessity, and particularly the failure to conduct a lineup. Now, it seems to me very clear that the court ought to have been free to do it, and that's precisely what the Court of Appeals did in this case. The test that this Court has established in Manson and in Neil is totality of the circumstances. A court looks to all of the circumstances and so long as it predicates its findings on reliability, so long as it looks to reliability, and so long as reliability is the bottom line, then I read this Court's opinions, especially in Manson and Neil, to conclude that any circumstance may be considered by a court so long as it goes to reliability. Now, here in this case you have a witness who is essentially saying, I cannot make an identification from photographs, I need to see a lineup. You also have no reason why a lineup could not have been conducted. Let's assume, at least, that there is a dispute between the parties on that question. But let's assume, for the moment, that there is no explanation, there is no valid explanation for why a lineup could not be conducted. And it seems to me very obvious, under those facts, that the failure to conduct a lineup is a factor going to reliability. We all know, and this Court has held, that lineups are more reliable than photographic identification where you have a witness saying, I cannot make an identification from a photograph, it's too old, the photographs are in black and white. Where you have a witness who's saying that, and saying, I need to have a lineup, then it's perfectly proper for a court to consider the failure to conduct a lineup. And I think if you read the petitioner's briefs in this case, you see that there has been a subtle shift from the opening brief to the closing brief. What petitioner had been arguing at the outset and what is essentially the position that, as I read the 5th Circuit cases, has been adopted in the 5th Circuit, is that you do not look to the conduct of the police in passing on suggestiveness. What you look to is the photo spread by itself. You don't look beyond the photo spread, and you look to the photo spread on its face. Well, that assumes that so long as you have a photo spread which is fair on its face, then you never get beyond it and you never get to the second step, which is reliability. And I think a few simple examples ought to demonstrate to the Court that that simply cannot be the case. Let's assume that you have a photo spread which is fair on its face, but that the police officer is saying to the witness, this is the person. Look at photograph number three, don't you think that looks like him? Now, I think everybody would concede that in a circumstance such as that the conduct of the police in suggesting a particular identification to a witness was a factor that properly could be considered in passing on, (a) suggestiveness, and (b) reliability. And I think that's essentially what was done in this case. I think that you have peculiarity, a peculiar fact situation in this case where you have a witness saying, I cannot make an identification from a photograph, I need to see a lineup. I think that that's one factor to be considered along with many others that exist in this case that point to a suggestive identification. You have, for example, the police officers telling the witnesses who made identifications... I think the record will bear out the conclusion that the initial identifications that were made by witness Almengor were positive identifications. He identified someone by the name of "Bogus Pete" Nunez, as the perpetrator of the offense, and the guard said to him, no, no, it can't be Bogus Pete, Bogus Pete wasn't in the prison at the time. Now, it seems to me that if what the police are interested in is simply the identification that the witness presents to them rather than the one that they want to orchestrate, they will not point out wrong choices. And I think this Court has indicated in several of its cases that it will not do that. Secondly, they removed all choices that they thought were wrong. The other witnesses, the other... Almengor also pointed out other people who simply magically disappeared from subsequent show-ups. Their photographs just never recurred again. I think the record also supports the fact that the three defendants who were ultimately identified were brought before the holding cell in a very suggestive way so that this also focused the attention of the witnesses on them. These are all factors which I think the Court of Appeal considered. I think if you read the Court of Appeal's opinion, it considered all proper factors, it applied an appropriate standard, and it came to the only conclusion that I think it could have come, which was that you had a very volatile, tense situation, there was an interest in identifying somebody, in getting somebody incarcerated for these... this offense, and they just picked out the three people that they thought were most conducive to being convicted. Now, I think if anything proves the necessity for a lineup in this case, nothing does it so much as the fact that after one of the witnesses said, I need to see a lineup, I cannot make identifications in photographs. They finally showed him the last photo spread, he points to the three defendants, they take him out, he has a chance encounter with the defendant Vargas, who is taking a shower, he sees him live, and he says, my God, I identified the wrong person, and he turns to the guard and he says, I picked out the wrong person, this is not the person who did it. Now, this is a live, he sees him live. This is the only opportunity that he had to see him live and he said, I picked out the wrong person. The guard said, in effect, tell it to the judge. And he goes to court, and here we are today. I think that is palpable proof of the fact that these witnesses indeed needed a lineup, that you could not have a reliable identification in this case without a lineup, and that the Court of Appeals properly considered that factor in reversing this conviction. Thank you.
Warren E. Burger: Do you have anything further Mr. Brady?
Thomas A. Brady: Very briefly. If, to concede at the moment for purposes of argument that the state Court of Appeal's opinion was an opinion on the merits of the constitutional issue, then we submit that that court's findings should be accorded the presumption of correctness of Section 2254(d). We raised this point expressly in our return in the district court, and this appears at age 195 of the Joint Appendix. In the 9th Circuit we raised the point a little bit differently. We were at that point reviewing the findings of the district court, and we asked the 9th Circuit to accord to the findings of the district court, which as far as we could see had given appropriate deference to the state Court of Appeal's findings, we asked the 9th Circuit to give the district court's findings deference. It did not.
Byron R. White: Did the 9th Circuit show a lack of deference to anything other than the ultimate conclusion of district court?
Thomas A. Brady: Yes; yes, Your Honor--
Byron R. White: Did they differ on the historical facts?
Thomas A. Brady: --I think they differed on the historical facts. I think two examples will show this. The state Court of Appeal opinion says, in so many words--
Byron R. White: Your colleague doesn't agree with you, does he, on that?
Thomas A. Brady: --He apparently does not. The state Court of Appeal says in so many words, there was no influence on the witnesses by the investigating officers. The 9th Circuit holds precisely to the contrary. The state Court of Appeal says there was an adequate opportunity for the witnesses to view the attackers at the time of the attack. The 9th Circuit doesn't so much take that on; it says, the fact that there was this knife attack going on, this violence, this excitement, that very likely had the effect of, if you will, taking the witness's attention away from the men in front of him so that very likely they did not have an opportunity to view the attack. This particular finding seems to be a general purpose one made up by the 9th Circuit. It could apply to any crime of violence. There is nothing in the record here that these witnesses said, we were afraid, or anything of that sort. So that I think we really have not an academic exercise here, we have a case where a federal appellate court has very really found that it should be a fact finder in a case where there's been both a state trial court determination, state appellate court determination, and also a district court determination.
Byron R. White: Mr. Brady, if we agree to the 9th Circuit with respect to the necessity part of its opinion, would we reach this other issue?
Thomas A. Brady: I think we would, Your Honor.
Byron R. White: You don't think the necessity ruling was dispositive, or independently dispositive?
Thomas A. Brady: No, Your Honor, I do not. It was on or two strikes against us, but I think even if we were to assume that the 9th Circuit were correct in this, I still do not think we would be over the line into where we would have a constitutional violation. This Court, I think, has never stated the appropriate standard better than in the Foster case. It asks, is this the man? Has this man been singled out? Looking at the circumstances here, I think this Court cannot conclude that. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.