William H. Rehnquist: Mr. Bolter.
Howard L. Bolter: Mr. Chief Justice, and may it please the Court: Section 1367 is a constitutional and sensible response by Congress to the serious procedural problems that were facing the Federal courts prior to 1990. Those procedural problems arose due to State claims that were pending in the Federal courts at that time under this Court's, what was then called, pendent jurisdiction and is now called supplemental jurisdiction. The problem specifically was what happens to those State claims that are pending in Federal court when the expiration of the statute of limitations on those claims occurs. The courts were faced with a dilemma at that point, do they dismiss these claims and risk having them not be refiled in the State court or do they retain those... the supplemental jurisdiction over those claims and decide issues that might be better suited for the State courts when they don't... when the Federal court no longer wants to exercise that jurisdiction.
Antonin Scalia: What... what's wrong with, as some courts did, conditioning dismissal upon... upon the plaintiff's... upon the defendant's agreement to... to waive the statute?
Howard L. Bolter: The problem with that solution, Justice Scalia, is that there is no guarantee that there would be an agreement to waiver. The defendant is... it's up to the defendant to agree to that waiver and to say that they will... they will not bring up that statute of limitations defense in State court.
Antonin Scalia: Right, and if he doesn't waive, then... then you proceed in Federal court because it's just not... not a proper... proper basis for dismissing it. What's... what's the matter with that solution?
Howard L. Bolter: In that... in that situation, it might work. There might be supplemental jurisdiction and the plaintiffs will not lose their claims. However, that is just one court's potential solution. There were a number of solutions that were being attempted at the time with varying effectiveness. It didn't guarantee, across the board, that plaintiffs would be able to bring those State claims in Federal court and be assured that they would be... that they wouldn't be forfeited if the statute of limitations ran out. One... one possible solution to the problem doesn't make 1367 unconstitutional. 1367 was a... was a general response to a general problem that was occurring below.
William H. Rehnquist: How about the Solicitor General's suggestion that we construe the statute so as not to apply to nonconsenting... actions against nonconsenting States?
Howard L. Bolter: To do that, the Court needs to address the threshold question of whether the statute abrogates in... in the first place, whether tolling is an abrogation of the State's immunity, and we contend that it is not.
William H. Rehnquist: Well, but the Solicitor General says, as I understand his brief, that we would avoid that constitutional question if we construed the statute in the manner that he asked us to construe it.
Howard L. Bolter: If the... if that scenario was taken and... and the construction is... is construed not to apply to the States, there will be serious constitutional problems that will be created by that construction, particularly depriving the... the Federal litigants of their access to the Federal forum.
William H. Rehnquist: Well, what constitutional provision do you say would be violated if we followed that suggestion?
Howard L. Bolter: The right... the due process rights of a plaintiff to have their cause of action heard in a... in a certain forum, to make sure that they would have those claims heard.
William H. Rehnquist: What case supports your position there? What case from this Court?
Howard L. Bolter: I don't know if there's a case that's... oh, I'm sorry. I take that... that's the Logan case that... that shows that a... that a plaintiff has a right to have their... their cause of action heard.
Ruth Bader Ginsburg: But not to have a cause of action heard in Federal court against a State.
Howard L. Bolter: That... that's correct, not to have... not to have it heard in... in the Federal court against the State, but to have it heard in some forum. The way--
Ruth Bader Ginsburg: But suppose the State decided it wasn't going to waive its immunity. As I understand it, in Minnesota, you could bring this claim within 45 days. The State has waived its immunity for suit in its own court.
Howard L. Bolter: --That's... that's right.
Ruth Bader Ginsburg: So... but it... you're not suggesting that it had to do that, otherwise there would be a due process violation. If that were so, then the State doesn't have any immunity because due process would compel it to... to answer.
Howard L. Bolter: What we are saying is that the due process violation would be if you construe the statute not to apply to the States, you don't have the protection of tolling a State claim against a State in Federal court. And if a State asserts its constitutional defense of sovereign immunity, that claim could be barred, but be... in--
Ruth Bader Ginsburg: But it wouldn't have been if you had filed a protective action. Suppose you had... with this uncertain question of Eleventh Amendment immunity from suit in Federal court, you could have, on the same day you filed in Federal court and took a chance on that, filed a protective action in Minnesota State court.
Howard L. Bolter: --We... we could have filed a protective action, but the... that has... I think there are two parts to that... that answer. First, we could have filed a protective action, but there's no guarantees that the State would have stayed that action. It might have... it might have forced litigation on that matter, creating res judicata and claims preclusion issues in the Federal court. It might have sought to dismiss it because of claims splitting. And the next part of the question is that the... the Supreme Court of Minnesota said that this was a facially unconstitutional... section 1367--
Ruth Bader Ginsburg: But wouldn't it... it wouldn't have occasion to say that... as I understand it, when duplicative actions are brought, the second court, the one where you file second, generally although it's not compelled to do this, will say, okay, prior action pending. We'll stay this case till the other one is finished.
Howard L. Bolter: --They... they could do that, but the point is that it wasn't... there was no guarantee that they will. They might also choose not to stay it and not to clog up their dockets and have... have cases affecting their statistics.
Ruth Bader Ginsburg: You have... you're using a lot of mights. Do you have any... do we know how Minnesota State courts treat the prior action pending plea? Do they dismiss or do they keep it?
Howard L. Bolter: They... if the claim is filed in Minnesota on... they will not dismiss if it was clear that the Federal court would not have exercised jurisdiction over that Federal... over that State claim. And in Minnesota, it was not clear at that time, and it's still not clear because the... the university and the States have this constitutional defense which they can assert or not assert. It's at their discretion. In fact, some of the cases that we've cited show that Minnesota, the university, has litigated cases, on the merits in Federal court, State and Federal claims. So, the point there is that we didn't know that the court would not exercise jurisdiction over the State claims, and if we were to file with that knowledge in... in State court, they could have dismissed on claims splitting or claim preclusion ground... or claims splitting grounds because the Federal court might have exercised jurisdiction. It was not clear.
Antonin Scalia: It seems to me the principle you're arguing for... I'm just not sure what its... what its boundaries are. The principle, as I take it, is when... when the Federal Government creates a Federal cause of action, any State law that impedes... and... and allows that Federal action to be brought in Federal court, any State law that impedes the bringing of that action in Federal court can be repealed by the Federal Government. How does that apply, for example, to simple statutes of limitations? Let's... let's assume you... you have a Federal statute of... of a year for certain... for a certain transaction or occurrence. The State statute for the same transaction or occurrence and the State's cause of action is just 6 months. Now, would you argue that because of the difficulty of claims splitting and so forth, the Federal Government can prescribe by statute that the State cause of action shall be extended to 12 months?
Howard L. Bolter: No, that's not what we are saying.
Antonin Scalia: Well, why not? If you say no, then you acknowledge the principle that, you know, there are some problems that have no solution, and... and the mere fact that you're making the Federal cause of action more difficult has nothing to do with whether there's Federal power to... to solve that particular problem.
Howard L. Bolter: The... the scenario that you just posed about the 6-month and the 1-year time limits... you could still file that State claim in Federal court within 6 months. You have to comply with the... the State cause... the State statute of limitations. It's just in a forum that maybe the State will ultimately object to.
Antonin Scalia: Yes, but the Federal Government wants to give you 12 months in its courts. That's... that's the policy that it's decided. We want to give you 12 months, and here's a State which has a State cause of action. It is... it is putting you to the choice. You either forego the... the State cause of action or... or you... you file within 6 months. Doesn't that impede, to some extent, what the Federal Congress wanted to happen?
Howard L. Bolter: I think in your... in that hypothetical, it probably would impede, but that's not the situation that we have in front of us.
Antonin Scalia: Oh, I understand it isn't, but... but I... but the principle you're arguing for, it seems to me, leads to that conclusion, that the Federal Government can... can reconfigure State causes of action willy-nilly so that they don't impede the bringing of Federal causes of action in Federal court as Congress wishes.
Howard L. Bolter: What the... what the statute does here, if it's applied to a State, is it tolls the time limit. It doesn't... it doesn't change the time limit for the... the statute of limitations. If we were to file this claim on the 50th day, 1367(d) wouldn't apply.
Anthony M. Kennedy: Well, I... I wonder about that. My understanding is... correct me if I'm wrong, please... that the Federal statute gives you an extra 30 days.
Howard L. Bolter: It gives you the... the tolling... the tolling provision runs for 30 days after the time after the dismissal.
Anthony M. Kennedy: Well, and so if you... if... if as in this case, I think you file on the last day or the next-to-the-last day in the Federal court, then you're given an extra 30 days. So, you do reconfigure the State statute, contrary to your suggestion. And... and I have a significant problem with that. It might be that the tolling provision is necessary in order to make the Federal courts operate and exercise their jurisdiction in an efficient manner, but this statute goes beyond that and gives a longer statute of limitations.
Howard L. Bolter: Well, it gives a longer tolling--
Anthony M. Kennedy: It does reconfigure the statute of limitations.
Howard L. Bolter: --I would respectfully disagree that it reconfigures the... the statute of limitations because it's... the statute... the State statute has to be complied with in order for 1367 to... to be triggered. It has to be filed within the appropriate time period. And... and that meets the statute of limitations objectives that the State was seeking when it... when it created that 45-day period. The fact that it's being tolled after it's been timely filed is not... that's... that's not a core interest that's protected by the State sovereign immunity. Tolling a statute that has been complied with, in this case filing within that 45 days--
Antonin Scalia: Well, it hasn't been complied with under State law. If... if the State law acknowledged the filing in Federal court as... as satisfying the statute of limitations, you wouldn't be here. The problem is the State law says you have to file the action in State court within the statute of limitations period, and we're not going to give you any grace period for a false start that you made in Federal court.
Howard L. Bolter: --Well, the... the State statute is silent on tolling. It's not a condition of... of the State's waiver of that 45-day period and--
William H. Rehnquist: But the State court here found that the State district court did not abuse its discretion in saying there wouldn't be any tolling, did it not?
Howard L. Bolter: --That's what... they found that there was no abuse of discretion, but that was... that... the State court's initial decision there was based on a... an erroneous interpretation of Pennhurst II when--
William H. Rehnquist: Well, but that presumably is up to the Minnesota courts to decide when the... when the State statute is tolled.
Howard L. Bolter: --They have the discretion to decide that, but it's our position that the tolling provision of 1367(d) can also toll that time period because it's not abrogating the State's sovereign immunity. It's not--
William H. Rehnquist: Well, but you know, you say it isn't tolling because it's... it doesn't really go to the length of the statute of limitations, one. But it does, you know. If you say the... if you want to say a statute of limitations is tolled for a year, obviously that extends the time that the State law would have allowed.
Howard L. Bolter: --But it doesn't defeat the purpose of... of the statute of limitations and... and the need to file in a timely fashion with that State statute to begin with. And I think that's what the... the State... the... if the State has a core interest in the statute of limitations, that's what it would be, is that claims are filed within that time period. Now, whether it's filed in a... in a jurisdiction to which the State ultimately objects is... is another point.
Antonin Scalia: That isn't self-evident. I mean, if what you're saying is true, every State would automatically allow tolling when suit is filed in a Federal court within the State statute period. If it were self-evidently true that the State policy is not at all offended by that, you wouldn't have a problem and you wouldn't be here because every State would say, well, it was filed in Federal court. That's good enough for us. But it isn't good enough for a lot of States. And... and, you know, it's their policy we're talking about, and their policy is you must file in State court within the limitations period.
John Paul Stevens: May I ask you a sort of preliminary question I'm kind of puzzled about? What is the source of the Federal Government's power to enact the statute at all?
Howard L. Bolter: Article III to control the lower Federal courts gives the... the Government the power to create these... these Federal practices and procedures, in this case, the... the way to address combined Federal and State claims, as well as its... its... the powers to protect individuals from losing their due process rights to have their claims heard and... and burdening the access to the Federal courts.
John Paul Stevens: So, it's Article III you rely on.
Howard L. Bolter: Yes, Article III and... and partly on the equal... equal protection for... to allow plaintiffs to have access to Federal courts and bring their Federal claims and their State claims if they... if they need to do that as well.
Ruth Bader Ginsburg: It would just... when Congress passed this, Congress I... I assume was just thinking it was regulating the procedure in Federal courts, that it was exercising that power to implement Article III. And what you said about due process, I didn't see any sign of that in the history of 1367. But you're not suggesting that before 1367, people were denied due process because there wasn't a tolling provision.
Howard L. Bolter: In some circumstances, they were because of the claims... the combination of the claims splitting and claims preclusion laws in the State courts and States and the statute of limitations on those pendent claims if they were brought in Federal court could result in a denial of a forum for that State claim if... if a Federal claim was also asserted.
William H. Rehnquist: Is there... is there any indication that Congress, when it amended 1367, relied on anything other than Article III? Are you suggesting it relied on section 5 of the Fourteenth Amendment?
Howard L. Bolter: I don't think it's... that it's explicit in the congressional--
William H. Rehnquist: Well, is it implicit?
Howard L. Bolter: --I think it's implicit in there that they're--
William H. Rehnquist: Where do you find that?
Howard L. Bolter: --Well, the protections that it... that it provides--
William H. Rehnquist: I mean, I'm... I'm talking about what Congress thought, not what you think.
Howard L. Bolter: --I... I'm not sure I understand your question, Mr. Chief Justice.
William H. Rehnquist: Well, my question was, is there any reason to think that Congress, when it made this amendment, was relying on section 5 of the Fourteenth Amendment, in addition to Article III?
Howard L. Bolter: Aside from nothing explicit, I don't... I don't know what Congress was thinking other than what I could speculate.
Ruth Bader Ginsburg: Well... well, don't we know that this came out of the Federal Courts Study Committee?
Howard L. Bolter: Yes, it did come out of the Federal Courts Study Committee?
Ruth Bader Ginsburg: And so... and Congress took the suggestion of that Federal Courts Study Committee, and as far as I recall, in that report, they were talking about the authority of Congress to regulate the procedure in Federal courts.
Howard L. Bolter: That's right. I think that goes to the Article III, I guess I... if I'm not... if I'm misunderstanding Mr. Chief Justice.
Anthony M. Kennedy: Suppose we were to conclude that this statute must rest upon Article III. We... we reject your due process and equal protection suggestions. What's the closest case that you have where we have sustained a power like this pursuant to Congress' authority to establish tribunals under Article III?
Howard L. Bolter: I have to think about that for just a second.
Anthony M. Kennedy: Is it Terrell/Taro v. Burt Construction Company where the State cannot condition the filing of articles of incorporation on a waiver of the right to go to Federal court? It can't burden the right to go to Federal court?
Howard L. Bolter: That... I think that is an example. I think probably Nash is also an example.
Anthony M. Kennedy: Although I think Terrell/Taro was probably a Commerce Clause case.
Howard L. Bolter: I'm not sure, Justice Kennedy, if it was or not. I think Nash, though, was also... I think Nash gets to your question as well.
Anthony M. Kennedy: Which... which case?
Howard L. Bolter: The Nash... the Nash--
William H. Rehnquist: Florida Industrial Commission.
Howard L. Bolter: --Nash v. Florida Industrial Commission.
Anthony M. Kennedy: Nash.
Howard L. Bolter: I... I couldn't hear Mr. Chief Justice. But I think that case also talks about burdening the Federal rights in an NLRB case.
Anthony M. Kennedy: Going back to the statute of limitations point, I... I should know this, but if I file a complaint in the Nevada State courts and the Nevada court said, this doesn't belong here, there's no jurisdiction, the cause of action arose exclusively in California, and it dismisses, and you then file in California, is there tolling as a general matter?
Howard L. Bolter: In that situation with... with two States, I would say that unless it was within the time period of California, it would probably not be tolled in that situation.
Anthony M. Kennedy: All right. Well, that... that seems to me very similar to what we have here.
Howard L. Bolter: Well, we have a filing in Federal court here with... with a statute that... that directly addresses the tolling--
Anthony M. Kennedy: Well, but you're... you're... well, it does or it doesn't. But you... you indicated earlier that the statute of limitations was not in any way extended because it was tolled by the filing. But it is extended by this additional 30 days. You basically have... what was it? 45... the 45 plus 30. You have 75 days now, almost double.
Howard L. Bolter: --Well, I think that the tolling provision is different. I mean, it does give additional time, but it doesn't extend the time period that the State was open and exposed to liability. It doesn't extend that 45-day period. They were already notified of it. They... they were put on notice. They had the... they knew that they were going to be sued and it was brought in... within that 45-day period. The fact that it was suspended during a time period where the State was in Federal court at its own... its own discretion, it would be... it would be harmful to the plaintiffs to have the State be able to use the delay in time that it's pending in Federal court to bar the claim from being brought after that in State court.
Ruth Bader Ginsburg: Mr. Bolter, what you said might be so if the only purpose of the statute of limitations were repose, being notified on time that you're subject to suit. But there are certain statutes that have been called so-called built-in statute of limitations where the limitation is considered part and parcel of the right itself usually when it's in the very same statute, and that seems to be the kind of limitation that we have here. We have a State that is giving up its sovereign immunity, but only on these terms. So, why isn't this a built-in statute of limitations? So, by necessity there would be harm when the State says it's the right... we condition the right on you bringing suit within 45 days.
Howard L. Bolter: They didn't make, as a part of that condition, anything about tolling. That's... that's I think the... the first point, and... and that's what this statute is doing, is tolling. It's not changing that... that right, that built-in right that you talk about, to the 45-day period. That... that still has to be complied with. But this is talking about tolling, which is a different... it's a different animal here, but it doesn't extend that time limit, that... that built-in time limit simply by tolling. It suspends it from running out but it doesn't extend it. I couldn't have filed that claim 75 days after it was sued. I had to file it within 45 days or else it would have been barred, and 1367 would not have attached.
David H. Souter: But I take it you're saying that whether you regard it as built in or whether you regard the policy as simply a policy of repose, Article III power or section 5 power is what it is, and... and it can accomplish what this statute wants to accomplish.
Howard L. Bolter: Yes.
Antonin Scalia: I don't know why you rely just on Article III or on section 5, which I think is pretty remote in this situation. Why... why don't you rely on the underlying Federal statute? There will always be some Federal power that justified the Federal cause of action which is the subject of this extension provision. Let's assume it's a Commerce Clause cause of action. Under the Commerce Clause, the Federal Government could have, if it wanted, eliminated the State cause of action entirely, couldn't... couldn't it? It could have said, we... we preempt any State action in this field, and the whole State cause of action would be washed away. If it can do that, why can't it do the lesser act of not washing away the State cause of action, but just saying, you know, if you bring suit in Federal court on this Commerce Clause cause of action, you get another 30 days or whatever, 45 days, whatever it is?
Howard L. Bolter: Well, it doesn't... it doesn't--
Antonin Scalia: Wouldn't that work? That... that makes me feel a lot more comfortable than just relying on Article III.
Howard L. Bolter: --Well, I don't think that it washes--
Antonin Scalia: I'm trying to help you. [Laughter]
Howard L. Bolter: --I don't know that I understand. Are you saying that they had power under the Commerce... if they had power under the Commerce Clause, could they do this?
Antonin Scalia: This statute itself piggy-backs on whatever substantive Federal statute exists out there, you know, whether it's under the Commerce Clause or under any other Federal power. And... and that Federal power would allow the total elimination of the cause of... of the State cause of action. Why... why is it unreasonable to allow a mere extension of the... of the State limitations on that State cause of action?
Howard L. Bolter: Well, I guess I don't disagree that it's not unreasonable to toll this... these statutes of limitations.
William H. Rehnquist: Do you know of any case in which this Court has held that Congress, when passing a statute of its own, could totally forbid a State to enact a similar statute?
Howard L. Bolter: I'm not aware of a case like that, Your Honor.
William H. Rehnquist: Neither am I.
Ruth Bader Ginsburg: Mr. Bolter, in any event, that wouldn't take you very far because so often these pendent State claims are garden variety State tort law, contract claims, are they not? I mean, there's the big Federal claim, and then you latch onto that the State common law claims. So, the State common law claims could arise out of the same transaction and occurrence, depend on the same nucleus of facts, and yet not be just a State counterpart of the Federal statute. Don't you... don't you have that in... in civil rights cases? Let's say, bring a 1983 claim against a police officer and then you latch onto it State common law claims for assault and battery?
Howard L. Bolter: Yes, and... and that's what we have done in this case, or that's what we... that's what this... and that's what this statute protects against, losing those claims. I... I'm not sure if I understood your question, Justice Ginsburg, about can you do that in Federal court, I mean, latch onto those Federal claims? Yes. I mean, that... that is what supplemental jurisdiction is about in this situation. So, I don't think that that's... that's appropriate to do that. And... and it goes back to giving the State a choice of whether it wants to be there or not by exercising its constitutional defense of sovereign immunity. I mean, I think the key... one of the key things here is that this... that the tolling does not abrogate the State's sovereign immunity because it's in a jurisdiction that it wants to be in at all times. The choice is its own. And the sovereign immunity core principles described by this Court in its jurisprudence have been whether and where a State can be sued, and it doesn't infringe on those core interests. Tolling has never been identified as a core interest of... of sovereign--
Antonin Scalia: Just whether and where and not when. Right? So, the Federal Government could... could override State statute of limitations on sovereign immunity cases no matter what because it's not really part of sovereign immunity.
Howard L. Bolter: --I don't--
Antonin Scalia: The State says, I'm willing to be sued for 1 year, and you say the Federal Government doesn't have to observe that 1 year. It can say, well, you know, it's 2 years instead.
Howard L. Bolter: --No. I think that the... that 1 year has to be respected, but this is about tolling. It's not about changing a statute of limitations. This is about tolling the time period for it to run out. If there are no further questions at this time, I'd like to reserve the remainder for rebuttal.
William H. Rehnquist: Very well, Mr. Bolter. Mr. Rotenberg, we'll hear from you.
Mark B. Rotenberg: Mr. Chief Justice, and may it please the Court: Your Honors, it's critical to focus on the fundamental issue of federalism presented in this case; namely, is it Congress or the State that has the power to decide when that State can be sued by its own citizens in its own courts?
Stephen G. Breyer: So, in your view, the Soldiers and Sailors Relief Act... all of the soldiers in Afghanistan, when they come back and they find that their statute of limitations has run out, Congress does not have the power to extend the statute. Is that right--
Mark B. Rotenberg: Your Honor--
Stephen G. Breyer: --in your opinion?
Mark B. Rotenberg: --Under--
Stephen G. Breyer: I mean, there's presently a statute that says when they come back, people who are in the armed forces, they will discover that the statute of limitations in the States has been extended for 6 months. In your... or however long necessary. In your opinion, that's unconstitutional.
Mark B. Rotenberg: --Your Honor, the... the logic... it may be unconstitutional is the direct answer to your question. The logic--
Stephen G. Breyer: All right. Now, what about... what about tort reform? Suppose in the tort reform statutes that pass, there is a provision that somehow in there is favorable to a plaintiff. That could happen. And if that does happen, then the State doesn't want to follow it, unconstitutional to apply it.
Mark B. Rotenberg: --Justice Breyer, the... the thrust of Alden against Maine is that Congress does not have the power under Article I to force a State to submit to a private suit for damages in its own courts.
Stephen G. Breyer: All right. Is it constitutional for Congress to pass a copyright law or a... any of these tort statutes that are federalized and say that the States cannot pass a statute that gives a cause of action in tort that is different?
Mark B. Rotenberg: Your Honor, the answer to that question would depend on Federal preemption principles.
Stephen G. Breyer: Correct.
Mark B. Rotenberg: Under the Commerce Clause--
Stephen G. Breyer: Now, they... they can preempt. Fine. Then if they can do that, why can't they shape the cause of action in the State so that it corresponds with Federal law by, for example, extending a little bit or not extending too much the statute of limitations?
Mark B. Rotenberg: --The reason they cannot do... the Congress cannot do that, Justice Breyer, is because this statute, 1367(d), represents a blanket attempt by Congress to extend statutes of limitations without regard to the existence of an independent power in Article I, such as the war power which may suffice to protect--
Antonin Scalia: That... that power will always exist in the Federal cause of action that has been brought in Federal court.
Mark B. Rotenberg: --It will exist, Your... Your Honor, in... in the--
Antonin Scalia: In every case to which this... this statute applies, there will be involved a Federal power under Article I.
Mark B. Rotenberg: --Well, not in this case, Your Honor, and this case is a perfect example of the... of the situation. This... this Court held that, in fact, there was no power under Article I to hail the State into Federal court in an age case. So... and... and petitioners here--
David H. Souter: No, but that's... essentially you're going back to the Eleventh Amendment. I mean, your... I understand your Eleventh Amendment argument, but you're trying to overlay an Article I argument on that, and I think that's where we're having... having our difficulty. But as I understand it, your ultimate answer to the difficulty is the Eleventh Amendment.
Mark B. Rotenberg: --We... Justice Souter, we have two arguments, yes. The... the essential point of... of Alden relates to causes of action against the State sovereign, and this Court in Alden has established a categorical rule that a State's power to condition its waiver of immunity is... is not subject to the Article I power of Congress to amend. In Alden, this Court held that, to the extent Maine chose to consent to certain types of suits, while maintaining immunity in other types of suits, it has done no more than exercise its privilege of sovereignty concomitant to its constitutional immunity from suit. So, that is the first and most important point here. With regard to the... the plenary authority of Congress to adopt a sweeping statute of limitations alteration in... in the States that applies to an unlimited type of claim, you have to look at whether there was an express intent to abrogate and--
John Paul Stevens: May I interrupt you?
Mark B. Rotenberg: --and that would take you into a... a section 5, Fourteenth Amendment type analysis. And--
John Paul Stevens: May I ask you this question as a preliminary matter? Putting the Eleventh Amendment to... to one side just for a moment, because I do understand your position there, assume this was a suit against a public utility and the... and they... Minnesota provided an especially short statute of limitations for that public utility. Would... would you think the... the Federal statute would be unconstitutional as applied in such a case, or would it be valid?
Mark B. Rotenberg: --The... the statute is unconstitutional if the Court needs to address the question of legislative power, Justice Stevens, because there is no case upholding a congressional power to enact a sweeping expansion of statute of limitations--
John Paul Stevens: There's no case upholding it, no case striking it down. But... but in any event, you think the statute would be unconstitutional even if you didn't have a State defendant.
Mark B. Rotenberg: --That's right, Your Honor.
William H. Rehnquist: Well, that... that goes quite far. What... what is your reasoning there?
Mark B. Rotenberg: The reasoning there, Mr. Chief Justice, is simply that since the Founding Convention, it's been clear that the powers of Congress are defined and limited, and the residual legislative power does not rest with Congress. It rests with the States under the Tenth Amendment under this Court's decisions in Marbury and the... as recently as United States against Morrison. The... the point of the matter is, Your Honors, that my able petitioners' counsel here has... has failed to suggest any case law that supports the enactment of a... of a change in the State statutes of limitations that's unhinged from a particular exercise of power--
William H. Rehnquist: But... but Article III is certainly a particular power.
Mark B. Rotenberg: --Yes, Your Honor. But the tribunal--
Ruth Bader Ginsburg: Mr. Rotenberg, did... did the Minnesota Supreme Court go that far? I thought that their decision as to the unconstitutionality of 1367 related only to cases in which the State was the defendant.
Mark B. Rotenberg: --Justice--
Ruth Bader Ginsburg: And to the extent that you're asking us to consider this broader theory, you're asking us to take that up... to go beyond where the Minnesota Supreme Court left off.
Mark B. Rotenberg: --Yes, Justice Ginsburg, that's correct. The Minnesota Supreme Court did not hold that the statute was unconstitutional as applied in all--
Sandra Day O'Connor: And your position... your position would, as Justice Breyer suggested, mean that the Soldiers and Sailors Civil Relief Act is invalid, insofar as it tolls State statute of limitations as well.
Anthony M. Kennedy: In actions against the State.
Sandra Day O'Connor: This would... this... this would be a big surprise, I think--
Mark B. Rotenberg: --Justice O'Connor--
Sandra Day O'Connor: --to members of the armed forces.
Mark B. Rotenberg: --Justice O'Connor, the... the--
Sandra Day O'Connor: Why... why do you want to go that far? Why don't you stick with what the lower courts did and talk about the Eleventh Amendment? What... what possible advantage is it to you to make this sweeping argument you're making?
Mark B. Rotenberg: --Justice O'Connor, it is certainly sufficient for this Court to address only the Alden principle, as Justice Kennedy just mentioned, and restrict the holding to a State sovereign--
Sandra Day O'Connor: And in that regard, what's the matter with the Solicitor General's approach that says the statute was never intended to cover nonconsenting States? Don't interpret as applying. What's the matter with that?
Mark B. Rotenberg: --Justice O'Connor, we agree with the Solicitor General that the statute can and, indeed, should be so construed.
Stephen G. Breyer: I guess then the next case... then the next case we'll have is where the soldiers and sailors come back and they would like to sue the State. Maybe it's a pension. Maybe it's a tort. Maybe it's a contract. There can be many, many things in States that... where the residents have a cause of action, and I guess even your minimal position would make it unconstitutional for them to do so.
Mark B. Rotenberg: Justice Breyer, this Court has not addressed the intersection between its holding in Alden against Maine, which establishes a categorical rule that Congress is disempowered from forcing a State to defend itself against its own citizens in its own State courts, and the... the war power. That case has not been presented, and I would suggest to Your Honors--
David H. Souter: Well, the war power is... is an Article I power. I mean, a minute ago I thought you were making a... a flat Article I argument.
Mark B. Rotenberg: --Yes, Justice Souter. The... my... my understanding of this Court's jurisprudence in this area... and Alden isn't the only case that stands for this proposition, of course... is that Congress, acting within its Article I power, is... has no authority to abrogate sovereign immunity. Now, it hasn't... Your Honors have not specifically faced what I would submit is a very challenging issue, as suggested by Justice O'Connor's question. Do we really mean each and every exercise of Article I power, even and including the war power to protect sailors abroad?
Anthony M. Kennedy: Well, what would... what would possibly be the ground for distinguishing. The State has sovereign immunity or it doesn't.
Mark B. Rotenberg: Justice Kennedy, I agree, and I think that the practical answer in our federalism is to allow the States to exercise good judgment with respect to their tolling provisions. It... it strains the imagination--
Anthony M. Kennedy: Precisely. They can waive if they want to.
Mark B. Rotenberg: --Exactly.
Stephen G. Breyer: Well, that's what bothered me. This may just be a misprint or something, but quite clearly the State of Minnesota has the power to say that our consent extends to this tolling provision, doesn't it? It could. It could come out the other way if it wants to. And, indeed, they say that the equitable tolling applies to their statute, don't they? All right. Now, I read their opinion. I've read this six times. Not six, but only two. Let me not exaggerate. [Laughter] But... but when they get to the--
Antonin Scalia: --It seemed like six. Right? [Laughter]
Stephen G. Breyer: When... when they get to the point, this very point, it says, however, we read Alden to require the university's waiver of immunity be limited to the... be limited to the parameters set forth in the statute; i.e., 45 days. Well, Alden has nothing to do with that. But they seem to think... and after all, they did say that this statute says 45 days, but it doesn't mean 45 days in respect to equitable tolling. But they seem to think that our case Alden required them to limit it to the 45 days, which of course it doesn't. So, they seem to be under a misapprehension in that respect, and I would like you to address that, what we should do about that.
Mark B. Rotenberg: Justice Breyer, I agree with you that Alden does not compel a particular interpretation of State law. That's certainly true. It is also true that the Minnesota Supreme Court unanimously determined that the 45-day limitation on its waiver of sovereign immunity is... is part and parcel of the statute, as Justice Ginsburg previously mentioned, and is an aspect of its... of its sovereign immunity and in... in addition said that the equitable tolling principle could be applied. But it's important to recall that the Minnesota courts apply the equitable tolling principles in an extremely conservative fashion.
Stephen G. Breyer: Yes, but my question, of course, is, what do we do about that sentence in the opinion which says, we read Alden to require that the waiver of immunity be limited to 45 days?
Mark B. Rotenberg: Well--
Stephen G. Breyer: That's... that's... if they had said exactly what you just said, I wouldn't have my question.
Mark B. Rotenberg: --Justice Breyer, this Court need not affirm every sentence of the Minnesota Supreme Court's decision. It only need affirm the judgment, and the judgment can be affirmed simply by reference to the fact, the constitutional fact, that Alden proscribes congressional alterations of... of State waivers of sovereign immunity.
Ruth Bader Ginsburg: Mr. Rotenberg, because sovereign immunity is kind of a peculiar objection... that is, the State... it's up to the State to waive it or not. It's not like a case where the Federal court wouldn't have subject matter jurisdiction. Shouldn't, at least for the period that the State stood silent, which I understand was about 9 months, in Federal court... at least for that period, shouldn't the State be treated as having been legitimately before the Federal court not complaining about it? So, for those 9 months, at least, the limitation ought to be tolled.
Mark B. Rotenberg: No, Your Honor. It... it isn't true that Minnesota stood silent for 9 months. The university asserted its sovereign immunity defense at the earliest opportunity, namely in its answer, and... and never in any way suggested a waiver of such a... of such a defense. This Court has held repeatedly that waivers of sovereign immunity by the States is not to be inferred and not to be implied.
Ruth Bader Ginsburg: What was going on? I understand, at least from the dates, that this was raised 9 months after the litigation commenced. Usually an answer is in... how many days?
Mark B. Rotenberg: 20 days, Your Honor.
Ruth Bader Ginsburg: Yes.
Mark B. Rotenberg: And we filed our answer asserting sovereign immunity within that time frame. There's nothing the university could have done to save their claim. The... they filed in Federal court merely 48 hours before the statute of limitations would... the 45-day rule would have expired even under their understanding, meaning that a filing in the wrong court suffices to be a filing in the correct court. So, there's nothing the university did to delay whatsoever. Moreover, we filed a dispositive motion at... in a timely way, consistent with the normal course of litigation in this case. Most Federal trial courts prefer that dispositive motions not be filed seriatim. And we... we noticed the motion, and there was a scheduling order, which plaintiff knew about, in the spring of 1997, and we filed the dispositive motion asserting our sovereign immunity in June of '97. And even if you would say that... that somehow the petitioners here were not fully aware, as they should have been, that the university was asserting its sovereign immunity from the get-go, by June 3, they had a motion, a dispositive motion, and the filing in the State forum still exceeded the 45 days.
Anthony M. Kennedy: Well, I... I suppose under the rule you're suggesting that we adopt the State could... let's assume that the claim is filed in the Federal court on the fifth day, and there's 40 days more left. I suppose the State could just sit back and wait for 60 days before it moves to dismiss to allow the claim to go stale, under your submission.
Mark B. Rotenberg: Justice Kennedy, that's possible but that was not what happened here, number one, and number--
Anthony M. Kennedy: Well, it not only is possible. It's the necessary concomitant... necessary sequence from the rule you... you propose.
Mark B. Rotenberg: --Your Honor--
Anthony M. Kennedy: It's not possible, it's necessary. That's your rule.
Mark B. Rotenberg: --it isn't... it isn't my rule alone, Your Honor. Pennhurst explicitly--
Anthony M. Kennedy: It's the result you want us to adopt.
Mark B. Rotenberg: --Yes, it is, Your Honor. But Pennhurst specifically suggests... yes. Excuse me. Pennhurst explicitly says that the expedient of filing the claim in the State court will avoid any danger of this kind occurring. And... and Pennhurst stands clearly for the proposition that a filing of the State claim, a protective claim, which petitioners' counsel here acknowledged would solve the problem, and filing the Federal claim in the Federal forum is a constitutionally appropriate expedient. Any contrary indication brings into question the... the opinion of this Court in... in Pennhurst by suggesting that filing concomitantly in the State and Federal forums is somehow a due process problem. Let me conclude with an... a closing observation about the due process issue. Petitioners have not cited a single case, not a single case, holding that the State's handling of pendent claims, in the absence of section 1367, somehow violated due process. And equally important, Your Honors, petitioners do not seriously claim that 1367(d) is a valid exercise of Congress' power under section 5 of the Fourteenth Amendment to address any supposed due process problems. The record is simply bare. Moreover, due process cannot be the basis of any supposed abrogation here because the first element of abrogating the State's sovereign immunity, using section 5 of the Fourteenth Amendment, is an explicit statement of Congress. There is no such explicit statement of Congress here. In fact, the record is silent as to any due process claim either in the halls of Congress or in the... in the case law, at least as cited or referred to by... by petitioners. And most importantly, Your Honors, and in conclusion, whether there might conceivably be an unfairness in some hypothetical State situation, this question of unfairness does not trump the Alden principle, that Congress cannot, by an observation of unfairness falling short of a due process issue, force a State to submit to suit against itself in its own courts.
Antonin Scalia: I suppose unfairness is what sovereign immunity is all about, isn't it?
Mark B. Rotenberg: It may be seen that way by some plaintiffs, Your Honor.
William H. Rehnquist: Thank you, Mr. Rotenberg.
Mark B. Rotenberg: Thank you.
William H. Rehnquist: Mr. Clement, we'll hear from you.
Paul D. Clement: Thank you, Mr. Chief Justice, and may it please the Court: When this Court confronts a general grant of jurisdiction, like 1367(a), it routinely infers that the statute does not apply to nonconsenting States. Such a construction avoids difficult... upsetting the balance between Federal and State powers. For similar reasons, this Court should construe section 1367(d)'s tolling provision not to apply to nonconsenting States. That reading avoids the difficult sovereign immunity questions posed by the application of a Federal statute to extend the State statute of limitations against a nonconsenting State in State court.
David H. Souter: You... basically you're saying clear statement. Is that... is that nub of your point?
Paul D. Clement: The nub of the point--
David H. Souter: The clear statement rule.
Paul D. Clement: --is this Court should apply a clear statement rule to this statute, the supplemental jurisdiction statute, and since there's no indication in the text or legislative history that Congress had any contemplation that this would apply to nonconsenting States, this Court should construe the provision as not applying to nonconsenting States.
David H. Souter: Do you... do you agree that in the absence of a clear statement rule, there is no ambiguity here that... that would open the door to our giving this kind of a construction?
Paul D. Clement: There is... there is enough ambiguity in the statute, if the Court wanted to, to reach the second argument that we offer in our brief, but I would suggest that the first argument we offer in the brief, which you could call the clear statement argument, is a more narrowly tailored and focused answer to the constitutional issues that are raised by applying the statute to nonconsenting States.
David H. Souter: Well, you've only got 10 minutes, and I'll leave it to you to whether you want to get into it. I... I have trouble with the ambiguity argument. I understand your clear statement argument. I have trouble with the ambiguity.
Paul D. Clement: Well, if I could, I would focus on the clear statement argument because I think it does very narrowly avoid the constitutional issue that's raised.
Antonin Scalia: Now, to... to apply the clear statement argument, do we not have to at least decide that it does constitute an elimination of State sovereign immunity to require the tolling of... of the action against the State?
Paul D. Clement: I don't think so. I think this Court only needs to decide that it would raise grave constitutional doubts before it would need to apply the... the clear statement rule because, although in some contexts, in the abrogation context, for example, a clear statement rule assumes that... that the Congress can't constitutionally do something, in other contexts as Gregory v. Ashcroft, Will against the Michigan Department of... of State... in those cases, this Court has applied clear statement principles even though they don't assume the answer to the constitutional question. And that, of course, is consistent with the way this Court approaches matter as a general matter and its preference to avoid constitutional questions. The... the Court, for example, just last term in... in Vermont against United States ex rel. Stevens, applied similar principles of statutory construction to avoid directly addressing the Eleventh Amendment--
Antonin Scalia: It's fine when you're dealing with an ambiguous statute. Sure, just the mere presence of a constitutional doubt will cause you to resolve the ambiguity in such a fashion that it doesn't raise a constitutional principle so you have sort of a clear statement rule, unless it's a clear statement where there's a... but those are ambiguity cases. You're... you're purporting to forego reliance upon ambiguity and to say even assuming that the statute is clear, you should not interpret it to apply to the States. And now, do you have any case not involving ambiguity, where we have applied the clear statement rule without first finding that it is clearly an abrogation of State sovereign immunity?
Paul D. Clement: --Well, I think, for example, in the Stevens case, this Court interpreted the term person not to include the State. What effectively we're asking the Court to do here is interpret the term, any claim, in section 1367(d) to say any claim except one against a nonconsenting State.
William H. Rehnquist: Well, I think in Atascadero we interpreted the word person so that it did not include the State, even though you could say person means a lot.
Paul D. Clement: No. That's exactly right. And in Will against Michigan where the Court had already held that 1983 did not implicate Eleventh Amendment issues, this Court nonetheless held that in State courts, the term person in 1983 does not apply to... to States or to State officers acting in their official capacities. And I think all of those cases and the... the Court's decision in Gregory against Ashcroft and in Will all stand for the proposition that this Court can apply a clear statement type principle to avoid a constitutional--
Sandra Day O'Connor: How... how do you respond to the Soldiers and Sailors Civil Relief Act as applied to States in tolling causes of action against the State?
Paul D. Clement: --Well, I... I think that... that in order to maintain consistency with our position in this case, we would have to ask this Court to apply a clear statement rule in that case, and the current version of the statute would probably not apply to States under that... under that theory.
Stephen G. Breyer: So, has that been happening? I mean, is it the case that the armed forces members have been suing States or not under the act?
Paul D. Clement: We haven't seen that the... that the issue of sovereign immunity arising in those contexts, and it very well... well--
Stephen G. Breyer: And it could be just that--
Paul D. Clement: --It very well may be, as counsel for the University of Minnesota suggested, that States will have the good sense in those instances to waive their sovereign immunity defense. I mean, the same principles that are going to motivate the Federal Government to pass the Soldiers and Sailors Civil Relief Act are going to motivate State governments to waive their sovereign immunity defenses in those claims. Now, it seems to me that... two points I'd like to make. First of all, it's worth focusing on the fact that even before 1367(d), the informal Federal court practices for dealing with potentially untimely State claims did not apply to nonconsenting States. Justice Scalia, you raised the... the problem of conditioning a dismissal on a withdraw... of statute of limitations defenses. But, of course, under Pennhurst II, a State has an absolute right to insist that the pendent claims against it be dismissed. So, in that context, the Federal court would not be able to condition the dismissal on a waiver of a statute of limitations defense, nor would it be able to retain jurisdiction over the claim. So, it stands to reason that 1367(d) should no more apply to cases against nonconsenting States than the Federal court practices it replaced. Lastly, I would emphasize that this interpretation of section 1367(d) does not place plaintiffs in an untenable position or in an unconstitutional bind. Plaintiffs, in cases where the State objects to Federal court jurisdiction as a blanket matter, have the same rights that they would have under Pennhurst II. They can file both claims in State court, the Federal and the State, which seems a complete answer to any due process objections, or they can file parallel proceedings. Even if the State makes a decision whether to consent on a case by cases, as Minnesota appears to do, the State... the plaintiff can still attempt to get consent in the first instance, and if it's not, it can make a protective filing along the lines that Justice Ginsburg suggested. In the end, it seems that plaintiffs lack any case law to support their due process arguments. I think that respondent, in fairness, lacks any case law to support its... its Article I legislative power argument. There's really no need for this Court to make any significant case law in order to decide this case if it simply applies the clear statement test we suggest in our brief. If there's no other questions, I'll submit.
William H. Rehnquist: --Thank you, Mr. Clement. Mr. Bolter, you have 2 minutes remaining.
Howard L. Bolter: Thank you, Mr. Chief Justice. I'd like to address something that was brought up on... again in questioning the university about being a nonconsenting State. It is... their arguments... the... the university and the Solicitor General's arguments rely on the fact that they were a nonconsenting State throughout this whole procedure. And that's not an accurate characterization of what went on here. When they were sued in Federal court, they were not a nonconsenting State until 9 months later when they brought that motion to dismiss.
Ruth Bader Ginsburg: But they said they put it in their answer within 20 days.
Howard L. Bolter: They did do that.
Ruth Bader Ginsburg: And I think Mr. Rotenberg was quite right that the whole impulse of the Federal rules is you bring all of your motions at once and not seriatim.
Howard L. Bolter: They--
Ruth Bader Ginsburg: But they... if they raised that... that Eleventh Amendment in their answer within the time allotted, I don't think that you can say that it was a 9-month thing that they--
Howard L. Bolter: --Raising the defense in the answer was just like raising any other defense in that answer. They had to assert it or else they would risk a waiver argument later on. All that did was preserve their right to bring the... the motion 9 months later.
David H. Souter: --Yes, but in preserving that right, it... it certainly does not put them in the position of being a consenting State.
Howard L. Bolter: Well, they were not a nonconsenting State.
David H. Souter: Look, what it boils down to is they hadn't filed the motion to dismiss yet. That's what we're arguing about, isn't it?
Howard L. Bolter: Yes, they had not filed the motion and until that motion was filed, the court can't rule on it. The court can't... is not going to dismiss the claim, and there will be supplemental jurisdiction over all the claims that are--
David H. Souter: Yes, but by the same token, you know by the answer that they are not consenting to jurisdiction.
Howard L. Bolter: --All we knew by the answer is that they were asserting an affirmative defense, just like they asserted a statute of limitations defense or laches or waiver. And none of those can be ruled upon by the court until they are affirmatively brought before them to rule on. They might have just decided not to do anything with it until the matter was tried on its merits, and they have done that in another case, the Eldeeb case, which they received summary judgment on the merits of both State and Federal claims.
Ruth Bader Ginsburg: Didn't you know also that you were at risk of an interpretation of 1367? Justice Souter suggested that there is no ambiguity, but at least there's a respectable authority for saying there is and that the tolling of 1367(d) is limited to cases covered by 1367(c) and would not take in sovereign immunity.
Howard L. Bolter: We did not anticipate that that could be a construction of... of 1367... of 1367(d), otherwise we might have reevaluated whether or not to bring it. But that wasn't... there was nothing to suggest that that was the status of the case law--
William H. Rehnquist: Thank you, Mr. Bolter. The case is submitted.


Earl Warren: Number 83, Richard McAllister, Petitioner versus Magnolia -- Magnolia Petroleum Company. Mr. Mandell.
Arthur J. Mandell: May it please the Court. This action was instituted in the District Court of Harris County, Texas on the 27th day of August 1953 in behalf of a (Inaudible) seaman and engineer on a motor vessel J.C. Stephens owned and operated by the respondent Magnolia Petroleum Company. This action was removed by way of plea of privileged to the District Court of Dallas County where the trial was held. The pleadings in sort of orthodox --
Earl Warren: Where was it filed, Mr. Mandell?
Arthur J. Mandell: In Houston.
Earl Warren: In Houston.
Arthur J. Mandell: Yes.
Earl Warren: In the state court?
Arthur J. Mandell: The state court --
Earl Warren: Yes.
Arthur J. Mandell: -- and removed to the State Court of Dallas County. The pleadings in sort of orthodox fashion alleged unseaworthiness and negligence. Before trial, the respondent interposed a plea of limitation both to the action under the Jones Act and to the action which petitioner here claims is also under the Jones Act but under the principles of the Maritime Law that proceeded the Jones Act. The theory of the respondent and the court below was that when the Jones Act was enacted, a two-year limitation statute prevailed and when the Federal Employers' Liability Act limitation provisional was increased to three years, it did not apply because it was not specifically provided in the extension as to the Jones Act. And also, stated and urged below that the cause of action for unseaworthiness has been barred by limitation because the two-year Texas Limitation Statute applied and not the two-year statute. The trial court overruled after hearing both of these pleas and trial was held on the merits. At the trial and conformity with the rules of civil procedure applicable in the State Court of Texas, special issues or interrogatories were submitted to the jury. The jury found first that petitioner did receive any injury to his body while attempting to walk down a set -- a set of stairs leading from a lounge to the galley below which he had to go in order to reach the engine room where he was employed as an engineer. The jury also found one of the allegations urged by the petitioner that the portholes over the stairs from which he fell were not watertight causing seawater to come in and making them dangerous causing his fall. The jury found that the portholes or windows over these stairs were not watertight. Petitioner insisted that the inquiry immediately following this inquiry should be was such on seaway the condition or was such failure to have these portholes watertight approximate cause of petitioner to the injuries on the theory of that. Once the unseaworthy action or the effect has been found the unseaworthiness follows as a matter of law and the next one is just a question of approximate cause. The Court refused to submit such an issue and instead asked the jury whether that failure to have these portholes or windows watertight rendered the vessel unseaworthy then gave a definition over the objections of petitioner stating you are instructed that by the term unseaworthy as used herein means that a vessel with it's appliances and the fittings is not reasonably fit for the purpose for which it is being used. Petitioner objected first that there was an unnecessary question of the jury whether or not that led the vessel unseaworthy. And secondly, stated that if the Court was to submit such an inquiry then the definition is erroneous because it emplaces a greater burden than the one upon petitioner, than the one required by law, because the definition requires the jury to find that by reason of that failure to have these portholes or windows watertight. The vessel as a whole is unseaworthy whereas the burden upon us was to show that that particular port of the vessel was unseaworthy approximately causing injury. The Court refused to do so and refused to do so on a similar issue inquiring about whether or not the deck above the galley was watertight, (Inaudible) shows that it wasn't and submitted the same type of issues.
Charles E. Whittaker: Mr. Mandell, did you alleged specifically what it was in your complaint that cause --
Arthur J. Mandell: Yes.
Charles E. Whittaker: -- the vessel to be unseaworthy?
Arthur J. Mandell: Yes, particularly I say the vessel was unseaworthy in that setting specifically that portholes were not watertight and water would come through, the largest are from the stairs that the deck above the galley was not watertight, that water would come through and lodge itself on the steps very specifically set out. Then I made the same objections and the same exceptions and requested the same definitions with reference to question number 14 but of course the same result. The jury, however, was not 15 minutes and send an inquiry to the Court saying Judge Long does the term unseaworthy refer to the vessel as a whole or to the three portholes or three windows above the galley, the specific question. The Court refused to answer to that stating, “We the Court, the charge contains all destructions and definitions.” Jury of layman naturally answered the question of unseaworthiness no, that a jury was confused. It's so clear by the issue that they've send out that at least no room for that otherwise they would have never send that very cautioned and intelligent question out. Again, when the jury send out that question in conformity with our practice, are requested in writing that a Court issue, answer the jury the question that in connection with your answer, you are instructed that we have referenced to the portholes over the stairs leading from the lounge to the galley. The Court refused it at that time again, I asked for a definite definition particularly pinpointing as the Court should that the defect we were talking about was not the vessel as a whole but the specific windows and the specific deck above the galley the Court again refused. The jury found acquitted defendant that the respondent here of all negligence bound $22,500 for the damages and some $6000 plus for maintenance.
Speaker: Could I ask you a question?
Arthur J. Mandell: Yes, sir.
Speaker: Is the -- the issue is submitted, the one that you're talking about is on page 35 of your brief, is that it?
Arthur J. Mandell: Yes.
Speaker: Now, the first -- the first part of that, do you have any quarrel with that?
Arthur J. Mandell: No, that's exactly the way I've requested.
Speaker: Is the ambiguity that's created by the second paragraph?
Arthur J. Mandell: By the definition. Yes, sir, as clearly illustrated by the jury this question. Now -- no, it's not a -- Justice Harlan, it is not as I've shown a specification over -- on page number 35. I say that was unnecessary once they answer on the jury was requested and answer specification number two as it's not in my brief, it appears on page 384 of the record.
Harold Burton: Page 34.
Arthur J. Mandell: 384 of the record itself. I objected to that part of the issue that appeared on page 35 of my brief because I find it wholly unnecessary under the decisions of this Court and particularly Putman versus United States and many other cases.
Speaker: In other words, you objected to all of --
Arthur J. Mandell: Number three.
Speaker: You thought number three was all -- that in view of number three number 14 was unnecessary, is that it?
Arthur J. Mandell: I said in view of number two immediately proceeding number three.
Speaker: I see.
Arthur J. Mandell: Number three was not necessary.
Speaker: I see.
William O. Douglas: I thought your main question here was the statute of limitation.
Arthur J. Mandell: Yes, sir, I'm getting to that immediately next of I -- I think.
William O. Douglas: You don't have very much time.
Arthur J. Mandell: Thank you, sir. I say that -- that the method of submitting that issue itself put -- deprived petitioner of the federally created right. Now, we come to the question of limitation, I approached the question of limitation on two grounds. One that the Jones Act was an all inclusive statute that it took in all personal injuries suffered by seaman and when once the Congress has passed an Act, providing that all personal injuries, the statute shall be three years, that is controlling otherwise the -- we have a judicial chameleon that changes these color as accordance with the topography or geography of the country. It would be ridiculous, I submit, that a seaman in Texas must -- would lose his law suit that he bought -- cause he bought it after two years but one in New York can recover because he bought it in three years and one in Louisiana would lose it because he didn't bring within one year. Secondly, we have the statute with reference to analogy. Now, if analogy is to be had and by the way respondent pleaded last year so we -- petitioner pleaded by way of protection incursion excused from last year. And it was shown there that all of the witnesses that were present at the time of the injury were present and testified at the trial of the case that this man was kept on the employ of the employer for a period of -- of almost two and a half years. So a good grant of excuse were present to excuse delay if delay is in the case and I submit there is. Secondly, as they were own questionably there was no prejudice to the respondent here. Now, I submit that a case that I haven't cited but recently where again Lindgren versus United States decided by this Court many years ago its 38 -- 281 U.S. 38 and the appellate court decision is 28 F.2d 125. In that case, Lindgren sued the United States and that was -- and sought under both negligence or on -- and unseaworthiness and it was sued for the death, Lindgren died leaving no beneficiaries which could take under the provisions of the Jones Act to the Federal Employers' Liability Act. The District Court allowed them $5000 damages to who -- to the administrator under the -- on the Virginia statute, I believe, because under the Virginia statue, you did not have to have this class of beneficiaries in order to see the recovery.
Speaker: The brief I've just --
Arthur J. Mandell: The Court of Appeals reversed saying that Congress has spoken in enacting the Jones Act which sets out exactly who the beneficiaries are and since questionably these beneficiaries were not existent, he can recover. But counsel for the petitioner (Inaudible) took the position that this is also a cause of action for unseaworthiness which the Jones Act does not cover and therefore the State statute applies which does allow recovery. But this Court and the Court of Appeals said not so the Court has spoken clearly to Congress -- Congress has spoken clearly saying that you cannot recover unless you have these class of beneficiaries there and since they're not existent, it matters not whether you recover under unseaworthiness or under the Jones Act by way --
William O. Douglas: What is the name of the case you --
Arthur J. Mandell: Lindgren versus U.S. --
William O. Douglas: Where did you cite it?
Arthur J. Mandell: It's 281 U.S. --
Speaker: (Inaudible)
Arthur J. Mandell: -- 38, 28 F.2d 125.
William O. Douglas: It's not in your brief.
Arthur J. Mandell: I -- I thought I had it but I checked it this morning when I saw it, I did not but I think it's a relevant decision and that if the Court of Appeals in Texas is correct then Lindgren versus U.S. is wrong for this reason. In Lindgren versus U.S. this Court have said, the Congress had passed an act applicable to Jones Act actions which prohibits recovery unless these class of beneficiaries are alive and it matters not that you come in here and say that you proceeded under unseaworthiness. The reason of -- the parallel I think is clear if the -- the argument is made that a plea of statue of limitation applies only to the Jones Act then Lindgren versus U.S. is wrong because they say it matters not. If the provisional beneficiaries in the Jones Act is applicable then the provision of the limitation of clear limitation is applicable more over this Court time and time again as stated that Section 688 Title 46 applies to all maritime causes of action. I say that is the fault of the courts to some extent primarily the fault of the lawyers that fell into a mail saying over and over again that the Jones Act is a negligence statute. I say and I urge this Court to see that the Jones Act is not merely a negligence statute, where you couldn't proceed under the FELA to impose liability under the Safety Appliance Act which certainly is a non-negligence statute. This similarity is exactly the same and of course this similarity in my position is supported by the recent decision of this Court in Kernan versus the American Dredging Company decided I believe January 27, 1958 by this Court. And this -- since I like to have about a few minutes to reply, I say that a statute of limitation enacted by Congress in three year is applicable to all causes of action by -- urged by a seaman in the event of personal injuries since Congress has decreed that otherwise the uniformity of the matter would be seriously impaired. Secondly, the issues submitted by the trial court below has impaired and prevented the sea -- the seaman of appealing its federally created right and a method on which they were committed and this Court has very reasonably also and there are no case held that a state court cannot by its practice and procedure deprive a citizen of its federally created right.
Speaker: I'd like to ask you a question if I may. Assuming we agreed with you on the statute of limitations, what should we do with the case?
Arthur J. Mandell: It is my opinion and I certainly strongly urge the Court to also speak on my second point, which is the proper submission of the definition of unseaworthiness.
Speaker: The Court of Appeals never reached that point.
Arthur J. Mandell: The Court of Appeal never reached that point, that's true but as much as it is a great honor for any lawyers certainly for me to appear before this Court, I would not want to come back on this case again. I -- I think this Court ought to also pronounce the rights of -- of this litigant on the second question.
Speaker: They might decide it correctly.
Arthur J. Mandell: They might.
Felix Frankfurter: Could we -- could we decide what you call the second question without reading the whole record in order to find the relevance of the -- is this an abstract question that you're tendering or does it relate to the facts made out of the case.
Arthur J. Mandell: I think Justice Frankfurter that the facts made that the undisputed questions by both counsel here raises the second question without the necessity of going through like --
Felix Frankfurter: You said something about the bearing of the jury must it so understood it, didn't you say something in the bearing?
Arthur J. Mandell: Yes, but that's appearing from the record sir.
Felix Frankfurter: Well --
Arthur J. Mandell: From I mean --
Felix Frankfurter: Is it appearing from the record without going through the record?
Arthur J. Mandell: I think so. I think it is.
Earl Warren: Mr. Mandell, do we have to go with you all the way on your -- pm your argument that the statute of limitation as contained in the Jones Act applies to all maritime cases in order to be with you?
Arthur J. Mandell: No, sir, you can go ahead on the analogy matter but I -- I do honestly believe it does, but the Court -- the Court can do one hold that the Congress having spoken that a two-year statute applies to seaman receiving personal injury that -- that's controlling on all states.
Felix Frankfurter: Our problem is, what it is that Congress said when it's both.
Arthur J. Mandell: Well, I understand that -- and I would find the help as much as I can by my being here in my brief, that's number one. Number two this Court can say we find that no prejudices existed and if any analogy is to be followed, a two-year statute enacted by Congress since it's a federally created right.
Felix Frankfurter: Am I right in inferring and assuming or inferring that you would be -- you would have the cause of action which you here urged prior to the Jones Act?
Arthur J. Mandell: Yes.
Felix Frankfurter: And what you're saying is that although -- and what are the statute of limitation prior to the Jones Act?
Arthur J. Mandell: There -- there was no federal --
Felix Frankfurter: What was the controlling statute of limitation in this litigation prior to the Jones Act?
Arthur J. Mandell: Two years, sir.
Felix Frankfurter: Two years, why -- why?
Arthur J. Mandell: States statutes so provide because there was no federal --
Felix Frankfurter: Although the right was a -- the substantive right was uniformed throughout the country.
Arthur J. Mandell: Yes.
Felix Frankfurter: What was unseaworthiness was that general question of national law.
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: But the enforceability depended upon the state law prior to Jones Act.
Arthur J. Mandell: Well, sir --
Felix Frankfurter: I mean the statutory limitation was the state law?
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: And what you're saying is that when the Jones Act was passed not taking any change in the Maritime Law, but having a provision regarding the statute of limitation in the same act that change the law regarding unseaworthiness, that's the case.
Arthur J. Mandell: That's exactly the case --
Felix Frankfurter: All right.
Arthur J. Mandell: And this Court has so held with reference --
Felix Frankfurter: I -- I just want to be clear on what you said.
Arthur J. Mandell: Yes, sir. (Inaudible) Court just held this. I thank you.
Earl Warren: Mr. Bolton.
Frank C. Bolton, Jr.: Mr. Chief Justice, may it please the Court. I would like to address our argument primarily almost solely to the question of limitations. Mr. Mandell has in a large manner made summary of the jury findings. There were some 34 special interrogatories submitted and only 15 of which were required to be answered to arrive at the verdict which the jury found because some of the issues were conditionally submitted upon a yes or no answer to a preceding issue. The jury exonerated the respondent from any act of negligence. They did it specifically with reference to the specific acts about which inquiry was made and it did so generally by finding that the injuries resulted from an unavoidable accident. The seaworthy issues were submitted as requested by counsel except insofar as he has outlined here. The jury found the condition existed but that the condition did not constitute unseaworthiness and under the Court's instructions they were not then required to determine the approximate cause issue which followed. Now, to make my point as to the applicable statute of limitation, it is I think necessary to go to the historical backgrounds or a brief summary at least so long since the (Inaudible) or back in the early days of this Court. The cause of action for unseaworthiness as a condition has been recognized as a matter of national law. The unseaworthiness in that since is a condition without regard as to why the condition existed. The cause of action then that a seaman had under that law depended merely upon him showing that the condition existed and not showing how it came about. With the enactment of the Jones Act in 1920, the law then changed and the seaman's right were expanded in many particulars. As this Court well knows, the Jones Act adopts the provisions of the laws of the United States modifying the common-law rights of railway employees and that we commonly think of those laws as being the Federal Employers' Liability Act. Now, the Jones Act has in it some substantive rights certainly and it adopts a statute which has any other substantive rights. It is long been held that the statutory period prescribed in the Federal Employers' Liability Act is substantive rather than procedural since it comes within the rule that it is a portion of the statute creating the right. Now, Section 56 of Chapter 45 the Federal Employers' Liability Act modifies the common-law by prescribing a period of limitation within which the action provided in that law could be brought. The reach and scope of Section 56 is limited to actions brought under this chapter. Section 52 of that chapter describes the actions which maybe brought under that charges and Section 52 relates to causes of actions by employees or survivors against the employers or injuries resulting -- injuries or death resulting in whole or in part from negligence. Now, shortly after the passage of the Jones Act, this Court have before it the case of Engel against Davenport and in that case the question was whether the prescriptive period provided in the Federal Employers' Liability Act at that time, two years, controlled over the statute of limitations in the State of California which at that time was a one year statute. The Court recognized the problem which we have here today. It found it unnecessary to decide the issue because the plaintiff there had declared upon a cause of action based upon negligence and unseaworthiness as a result of negligence, so the Court permitted the action within the longer period of time. The next case which is cited in our brief which most merely approaches our problem is the case of McGee versus the United States in 165 F.2d. There, the Second Circuit discussed the holding in Engel against Davenport and interpreted that holding to mean that if the plaintiff declared upon a cause of action based upon negligence -- negligence on seaworthiness then it was incumbent upon him to make that proof in order to avail himself of a longer period of limitation as prescribed in the Federal Employers' Liability Act. Now, I believed the law to be that when a summary -- that when a seaman, asserts an action for unseaworthiness in a state court. He must bring his action within the state prescribed period if it is factually based upon unseaworthiness, simplicity around seaworthiness which exist as a condition not arising from negligence but that he may bring it within the period of the Jones Act as a connection arising under the Jones Act if the same condition is based upon some negligence of the ship or its owner.
William O. Douglas: But if it's based on both --
Frank C. Bolton, Jr.: Sir --
William O. Douglas: -- gathered then I suppose, he must proceed within the two years or his -- takes his chance of losing out.
Frank C. Bolton, Jr.: If these facts do not sustain his negligent count then he does have that --
William O. Douglas: As a practical matter, we have something here that implicates only the unseaworthiness but ordinary negligence suit under the Jones Act.
Frank C. Bolton, Jr.: Yes -- yes sir. Now --
William O. Douglas: It's a rather -- rather direct bearing upon them too, I would think.
Frank C. Bolton, Jr.: I would think so, sir. The statute of limitations which would apply to the same type of action brought in the law side on -- as an action at law in the Federal District Court and with trial by jury and so on under the election which the -- the seaman employee had would be governed I think under the same rules because of the rules of the decision act insofar as it would apply to the Federal Court sitting in that State. Of course, then on the admiralty side of the Court, you have an entirely different situation. Now, it is our position here that since the jury facts have become the facts before this Court and particularly those with reference to negligence which were not made the point of objection on appeal at all. In other words, the counsel did not raise in the court below and does not raise here any points of appeal relating to the cause of action which he asserted based upon negligence. And since the jury exonerated the respondent here from all acts of negligence then we must treat this case as if it were a case based only upon unseaworthiness simplicity or unseaworthiness which existed of the type that existed prior to the basis to the Jones Act.
Felix Frankfurter: Well, that's not in dispute between you as I understood Mr. Mandell. That is not in dispute between you --
Frank C. Bolton, Jr.: Not of the negligence. No, sir.
Felix Frankfurter: No, it's not in dispute that the case that's now before us is as though he had laid merely unseaworthiness.
Frank C. Bolton, Jr.: I believe that -- that certainly is my position, Your Honor. I believe that to be counsel's position.
Felix Frankfurter: Well, the fact that you joined the two and the other one as you say the defendant has exonerated, it doesn't change the nature of the legal problem now before us.
Frank C. Bolton, Jr.: No, sir.
Felix Frankfurter: All right.
William J. Brennan, Jr.: Mr. Bolton is there any significance in the language of Jones Act may at his election maintain an action?
Frank C. Bolton, Jr.: Yes, sir. I do not think so insofar as this case is concerned. I -- I believe that the -- the election there is as -- the remedy for the seaman to proceed at law with trial by jury rather than the election of remedies between the unseaworthiness and -- and negligent counts.
William J. Brennan, Jr.: I don't quite understand. You mean that election means only elect between the trial based on negligence without a jury and --
Frank C. Bolton, Jr.: No, sir. I did not mean to say that. I -- I believe that his election is simply between whether he proceeds in the Court at law and obtains the jury trial wherein he may incorporate all of this counts based upon the same facts and secure in them that they either by reason of fault or by reason of unseaworthiness if his proof is -- is --
William J. Brennan, Jr.: Well --
Frank C. Bolton, Jr.: -- such as distinct.
William J. Brennan, Jr.: Well, to that extent at least, does the recognition of an action based on unseaworthiness implied in the provision that he may at his election?
Frank C. Bolton, Jr.: Well, that I -- I don't quite know that I understand the Court's question but if -- if I --
William J. Brennan, Jr.: Well, what I'm -- what I'm trying to get at is, is there any recognition in the statute that the election is as between an action which would be founded upon or based upon the FELA principle?
Frank C. Bolton, Jr.: Yes, sir.
William J. Brennan, Jr.: And an action founded upon alleged unseaworthiness.
Frank C. Bolton, Jr.: Justice Brennan, I believe that -- that is the question which the courts below have had some difficulty in determining and -- and the most recent way to authority I think is that the election is only as to whether he proceeds before a jury or proceeds admiralty.
William J. Brennan, Jr.: In admiralty.
Frank C. Bolton, Jr.: Yes, sir.
William J. Brennan, Jr.: Well, I -- after all, the statute of limitations, you suggested that substantive --
Frank C. Bolton, Jr.: I -- I suggested that it's substantive in the Jones Act I -- I would say that the Texas Act which was applied by the court below is procedure and it is so been held. It is a general statute of limitations not a portion of the statute creating the right. To me, the -- the right of the Texas Court to apply its own statute generally in this type of case is no different from committing it to prescribe the jurisdiction of its courts or the prerequisite steps to preserve appellate point -- points or the Rules of Civil Procedures. The only other point that I wish to make is that the court below did not have an opportunity to pass upon any of the assignments of error or counter assignments of error -- or it had an opportunity but it did not see fit to pass upon them and if the Court does see fit to reverse the court below, I believe that the proper disposition of the case would be to remand it for a further consideration so that it may consider all of the points which were briefed at the submission
Felix Frankfurter: May I -- may I ask, I heard nothing about any light shed by the legislative history of the Jones Act. I gather there isn't any as the counsel would've produced it.
Frank C. Bolton, Jr.: Mr. Justice Frankfurter, I originally thought that I had a very good point of law that the amendment to the FELA, the 1939 Amendment of the FELA could not be attributed to apply it to the Jones Act and just about the time that we argued or we're arguing our motions below this Court rendered its opinion in the Cox versus Roth case and my confidence in that point materially decreased and so I -- I have abandoned that. I do not believe that that is -- is actually here now insofar as the initial act is concerned, of course the background there goes back to the -- on the condition that existed but the efforts to pass a -- a Longshoremen and Harbor Workers Act and to apply rights to these classes of people, federal rights, if you please that did not apply the other classes of employees generally.
Felix Frankfurter: But -- but on -- on the statute of limitations, there's no light as to -- secondly, I gather not -- secondly --
Frank C. Bolton, Jr.: No, sir.
Felix Frankfurter: -- it is a bit surprising that there should be seemingly as little light on the substance -- on the actual determination whether the Jones Act does or doesn't apply where an action is brought merely for unseaworthiness or that's the only claim that is sustained. Here, the statutes been enforced since -- for 38 years. One counsel is surprised that law isn't -- everything else about life but is unexpected.
Frank C. Bolton, Jr.: Well, this Court has have before its famous cases which could not have reached here had counsels contention been correct for example in the Mahnich versus Southern Steamship Company case, that was a case which was admittedly filed after the prescriptive period in the Jones Act through it was filed in evidently and the -- the six-year, I believe it was the six-year statute which was applied in the State in which the court set and this Court in its action sent back for trial on the issues of the situation there. That case would not have been alive so to speak had the -- the Court and should the Court apply counsels contentions that the Jones Act embodies the whole of the Maritime Law in support it relates to seaman injuries.
Felix Frankfurter: Of course you might have to meet the argument if the Jones Act sets the minimum but if a state wants to give more, that doesn't contradict the Jones Act. I -- I wouldn't think much of that argument.
Frank C. Bolton, Jr.: I -- I do not either, sir. Now the state -- the State of New York applies its six-year statute of limitations to unseaworthy claims brought in those courts. This contention would -- by counsel result and those actions being terminated for three years. They arrived I believe then under a theory of a breach of warranty which they attribute to their contractual provision in their statute of limitation.
Felix Frankfurter: Well, if -- if it -- if the mode of enforcement because the locality of the injury is local, is left to local law, that's not the difficult -- anyhow, New York had can work that out if it wants to.
Frank C. Bolton, Jr.: Yes, sir.
Felix Frankfurter: But --
Frank C. Bolton, Jr.: I see nothing wrong with that. Actually the lawyers in Texas are more familiar with the Texas Laws than they are with the laws of the United States and if the courts of Texas or the statutes of Texas apply uniformly to all litigants in those courts except insofar as the expressed provisions of the Jones Act -- the Jones Act, the three-year statute does definitely apply and I'll make no contention and it does not.
Felix Frankfurter: And even Texas lawyers have to be familiar with that.
Frank C. Bolton, Jr.: Yes, sir.
Felix Frankfurter: I mean the independent Republic of Texas even have to take account of that National Law that --
Frank C. Bolton, Jr.: Yes, sir. We have to know that. Unless there are further questions, I believe that's all. Thank you.
Arthur J. Mandell: Mr. Mandell, you may proceed.
Arthur J. Mandell: I -- I think perhaps I maybe of aid to the Court in reference to the history of the legislation. I have checked that and found no history of legislation except this. This Court decided Arizona versus (Inaudible) of 1942 or 1943 or that about I believe. In that case, a seaman sued under the Jones Act for personal injuries and the attorney for the steamship company very advertly I thought came back and interpose the plea of assumption of risk stating that if they are going to take in the Federal Employers' Liability Act in total, they can take only the good and not the bad. It would be bad and the -- at that time, the Federal Employers' Liability Act, I'm sorry was page 6, I believe. The doctrine of assumption of risk could've been applied because the law hasn't been amended since 1939. This Court and the court below rejected that argument stating this that the Jones Act was not meant to limit the rights that a seaman had under the Maritime Law but why don't you enlarged it that a Jones Act wasn't drafted on the Maritime Law or which it became apart and I say therefore that while this Court had never had this question brought out before directly the question of limitation except in Engel versus Davenport which this Court particularly states we need not pass from the question whether the Jones Act period of limitation applies on a cause of action for unseaworthiness because we don't have it before. But in that case in the Arizona versus (Inaudible) case, this Court stated that a right that they had the -- the Jones Act do not afford the right to avoid the assumption of risk defense nevertheless it's right that they had an admiralty and it's embraced and continued and became a part of the Jones Act as I believe was a right of unseaworthiness and the statute of limitation under the Jones Act became a part of the Jones Act.
Felix Frankfurter: Mr. Mandell, you stated with great candor that prior to the Jones Act, the local law of limitation where it's decide by Congress to be applied to suits in state courts and also the federal court to suit in any court state or federal giving a maritime right for unseaworthiness, if you're in maintenance et cetera or subject to the local law of limitation, is that right?
Arthur J. Mandell: Partially right.
Felix Frankfurter: What's wrong about it?
Arthur J. Mandell: I don't agree with -- I don't agree with you Justice Frankfurter. I was saying that it was desired by Congress. Congress simply did enact.
Felix Frankfurter: Very well, I accept your --
Arthur J. Mandell: Yes, yes.
Felix Frankfurter: -- your correction.
Arthur J. Mandell: Yes.
Felix Frankfurter: Congress cause act and not act, if Congress doesn't act in an area in which it doesn't give a statute of limitation then that's the policy of Congress that the local law should apply would you agree to that?
Arthur J. Mandell: I say that local law must apply in the absence of -- of congressional action or (Voice Overlap) --
Felix Frankfurter: Because Congress has chosen not to leave the local law to be applicable to transactions that transpire local.
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: That's the policy, isn't it from the beginning of our history?
Arthur J. Mandell: If known action means policy.
Felix Frankfurter: Well, I --
Arthur J. Mandell: If non-action means policy, yes, sir.
Felix Frankfurter: I do want to take your time in --
Arthur J. Mandell: Yes sir.
Felix Frankfurter: -- talking about words. The fact is that if Congress doesn't pass the statute of limitation, the local statute applies.
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: Although, the right derives from federal constitution on those law. Is that right?
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: Very well. Now knowing the history of the Jones Act, I think I can say both you and I know it.
Arthur J. Mandell: Thank you sir.
Felix Frankfurter: Will you indicate -- will you state, you tell me whether there -- tell the Court whether there is the slightest intimation in the course of that history that Congress was concerned with the enforceable rights for -- of maritime law regarding unseaworthiness when it passed the Jones Act or rather whether it was concerned to undo what I believe to be the undesirable cause of decisions in this Court and give recovery under the Jones Act not only different substantive rights but also the right of recovery to those who is -- who-- in cases of death. Is there any indication that anybody was concerned with changing the then Maritime Law about unseaworthiness except to create a new substantive right?
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: That's a very big except. I mean that's --
Arthur J. Mandell: Yes, sir.
Felix Frankfurter: -- the purpose.
Arthur J. Mandell: Except -- yes, Your Honor. I --
Felix Frankfurter: Is there anything that you find in anybody's utterance that was concerned with changing the then existing law regarding unseaworthiness?
Arthur J. Mandell: Yes, Justice Frankfurter, the very language of the statute (Voice Overlap) --
Felix Frankfurter: Well, I can read that as whether you can, but apart from that, is there anything in how the language of the statute does that I cannot see for the light of it.
Arthur J. Mandell: Thank you very much.