William H. Rehnquist: We will hear argument first this morning in No. 85-1140, the Atchison, Topeka and Santa Fe Railway Company against Buell. Mr. Lee, you may proceed whenever you are ready.
Rex E. Lee: Thank you, Mr. Chief Justice, and may it please the Court, this is a statutory construction case. There are two statutes to be construed and they are the two that govern relations between employers and employees in the railroad industry. On the one hand, the Railway Labor Act provides for exclusive mandatory nonjudicial resolution of so-called minor disputes which the Act defines as all disputes growing out of grievances or out of the interpretation or application of bargaining agreements. The basic objective of this minor dispute part of the Railway Labor Act was to assure that workplace controversies would be resolved by persons who were expert in railroad matters and by processes less cumbersome than courts can offer. The Federal Employers Liability Act, on the other hand, gives a special federally created remedy against railroads for injuries that they cause. The problem in this case arises out of the fact that you have one federal statute that precludes a judicial remedy while the other provides a judicial remedy. Nevertheless, over the 60 years that these two statutes have existed side by side there has been very little conflict between them, and the reason is simple. So long as the RLA is given, as it usually has been, its traditional usually understood meaning as applying to the resolution of workplace disputes, that is, how the shop ought to be run and what the relationship should be between supervisor and employee, and the FELA on the other hand is given its traditional, usually understood meaning as applying to the redress of physical injuries. Then there will be few cases, if any, in which courts will have any difficulty deciding which statute covers which case. Clearly, if that approach is followed here there is no question how this case must be resolved. Mr. Buell's grievance against his employer, Santa Fe, really boils down to a disagreement with his foreman, Mr. Wright, over their respective duties. He makes three basic allegations. The first is that he had been given two conflicting sets of instructions as to how to fill out car inspection reports, second, that he was forced to assist Mr. Wright in what he considered to be illegal activity, namely or principally removing ice and plywood from the yard. And third, and beyond any question the most important, that his supervisor aid not adequately discipline other employees and prevent them from ridiculing and intimidating Mr. Buell by doing such things as posting anonymous cartoons making fun of Mr. Buell's physical appearance. The first step taken by the respondent and other employees was to initiate RLA grievance procedures on account of Mr. Wright's alleged wrongdoings, and then about a year later Mr. Buell filed this FELA suit alleging that Santa Fe had wrongfully failed to prevent his foreman and his fellow employees from intimidating him, as a result of which he suffered severe mental and emotional injuries. He did not allege any physical injury. Several federal courts of appeals and district courts have cautioned against the potential for effectively repealing the Railway Labor Act. Through what those courts have called artful pleading in drafting personal injury complaints under either the RLA... excuse me, under either the FELA or state law, and ironically the most thoughtful of those opinions comes out of the Ninth Circuit. This case is the classic example of why that is a legitimate concern. Look at the issues that are going to have to be resolved by whoever decides this cases. They arise out of disagreements between an employee and his foreman over the rules of the shop. Were there in fact conflicting instructions, and if so then which instruction should prevail. What are the company rules concerning taking scrap plywood home? And most important of all, what are the foreman's obligations to keep other employees from making fun of Mr. Buell? Those are the issues in this case.
Antonin Scalia: Mr. Lee, wouldn't that also be the case if you had just a standard FELA negligence action where prior to the accident there had been complaints about slipshod procedures within the shop or about some other matters that would constitute negligence? You could grieve those, those negligence matters, and instead of grieving them you certainly could bring an FELA lawsuit later.
Rex E. Lee: Clearly you can, and clearly you can do both, and those two can exist side by side.
Antonin Scalia: So why is this different?
Rex E. Lee: This case is different simply because there is no legitimate FELA complaint that has been stated. There is no legitimate FELA cause of action that has been stated in this case. In order to reach--
Antonin Scalia: Well, that is quite a different issue, and I was going to ask you that, too. Why is there any... if you want to talk about artful pleading I would think the artful pleading consists of causing an intentional injury to become a negligent injury within the meaning of the FELA by simply saying that a foreman who inflicts intentional injury is not adequately supervised. Are you making that assertion here, that this matter is not even covered by the FELA anyway?
Rex E. Lee: --Oh, yes, we are. We are making two arguments. The first is, we are doing all of it in the context of the general proposition that in order to reach a proper accommodation between these two statutes, what you have to look at is, first, what is the interpretation of each that will harmonize the two so as to minimize the conflict between them, and then you have to ask yourself what is the real thrust of this particular complaint? Is it really in the nature of a traditional FELA complaint which is tied to physical injury or is it, does it really arise out of a disagreement as to what are the rules of the shop and who is to do what in this particular--
Antonin Scalia: I am not talking physical injury, Mr. Lee. I am talking negligence. It is clear the FELA only applies to negligent injury.
Rex E. Lee: --That is correct.
Antonin Scalia: And the injury alleged here is proximately intentionally causing emotional distress which may or may not, depending on which side you believe, have led to properly alleged physical injury, but you know, proximately you have intentional action on the part of the foreman and some of the coworkers causing emotional distress, and that has been converted into a negligence action by saying that it was the company's failure adequately to supervise that constitutes the negligence.
Rex E. Lee: That is correct.
Antonin Scalia: Now, you are not protesting that and saying that that doesn't constitute a proper FELA action?
Rex E. Lee: Oh, indeed we are. For the 60 years... for the first 58 of the 60 years that the FELA had been in existence there was never any single federal court that had ever held that purely emotional injury, that is, without any physical injury--
Antonin Scalia: I am not talking emotional injury. You keep getting back to that point. My concern is intentional injury versus negligent injury. Does intentional injury get converted into negligent injury under the FELA simply by the fact that the company aid not adequately supervise so as to prevent the intentional injury?
Rex E. Lee: --That at least is not... we are not protesting that part of the claim. That is correct. What we are contending is that there can be no FELA action without a physical injury.
Antonin Scalia: The same problem has arised under the Federal Tort Claims Act, which only allows... which specifically excludes claims for intentional injury but it is sometimes alleged and some courts have thought it is artful pleading to allege that where the government fails to supervise, let's say, an enlisted man in the Army who intentionally inflicts injury on somebody else, that constitutes negligence under the Federal Tort Claims Act.
Rex E. Lee: Yes, I think I understand your question.
Antonin Scalia: Do you understand where I am going?
Rex E. Lee: I think so. The FELA by its terms applies only to negligence. However, it has been settled for some time that it also does apply to intentional injury, and in any event the reason that we contend that the FELA does not apply in this case is because of the lack of a physical injury or, to use the Seventh Circuit's language in Lancaster, torts that work their harm through physical means. What you really have to do... the heart of the Ninth Circuit's error in this case was that it held first that the RLA does not apply, and second that the FELA does apply.
William H. Rehnquist: And you could win, I take it, either by claiming... by establishing that the RLA applied even though in the absence of the RLA the FELA might apply, or you could win by proving that the FELA didn't apply whether the RLA applied or not.
Rex E. Lee: That is exactly right, and I would like to take those one by one now and establish the Ninth Circuit's error as to each of them.
Lewis F. Powell, Jr.: Mr. Lee, before you proceed, it would help me if you would tell me what relief could be awarded respondents under the FELA.
Rex E. Lee: Under the RLA these adjustment boards have the authority to give standard arbitration kinds of awards. They can award reinstatement and back pay.
Lewis F. Powell, Jr.: Can they award damages?
Rex E. Lee: Well, damages in the sense of reinstatement and back pay. Now, they can't award damages in the sense of the kinds of damages that a court would under an FELA, but the point is that what we are looking at here is Congress's intent in passing these two statutes, and there is no question that Congress when it passed the RLA wanted these workplace disputes, these disputes over how the shop is supposed to be run to be resolved through these nonjudicial arbitration projects.
John Paul Stevens: Mr. Lee, I am not sure you really gave an answer that I thoroughly understood to Justice Scalia's first question, that if it were an ordinary FELA case that arose out of sloppy procedures and so forth and an injury, why would the RLA not preempt that cause of action if it does in this case, and you answered it by saying, well, there is no FELA case here, but that is really your second argument.
Rex E. Lee: That is correct. That is correct, and perhaps I did not fully understand the thrust of his question. We have two arguments and they have been correctly summarized by the Chief Justice, and one of them is, this is not an FELA case. Now, if it were an FELA case then what you have to do at that point is to ask... there are really two subsequent questions that you ask. The first one is, is the real gravamen of this dispute, does the real gravamen of this particular dispute put it into the RLA came or the FELA camp, and that is the approach that was taken by the Ninth Circuit in its earlier Magnuson decision, and we think that is the one that... that is an approach that has to be taken if you are to avoid the artful pleading type of problem. Now, there can be some instances, and perhaps this is the thrust of what Justice Scalia is asking, there can be some instances nevertheless when you have a hard time saying, well, does it squarely fit in one or does it squarely fit in the other, and under those circumstances we contend that the tilt should be, in the close cases, should be toward the Railway Labor Act for a couple of reasons. One is that the basic question here is a question of what is the proper forum, and it is the Railway Labor Act that deals precisely with that issue of what should be the proper forum. Let me deal just briefly then with the Ninth Circuit... what we consider to be the Ninth Circuit's error on both of these grounds. First of all, that the Railway Labor Act... it should have held that the Railway Labor Act does apply, and second, that it should have held that the FELA does not apply. There is no question that this case involves a disagreement that arises out of the employment relationship. It is at bottom a disagreement over how to run a railroad and who should be doing what toward that end. But the respondent nevertheless contends that a workplace controversy is not a minor dispute subject to the RLA's compulsory grievance procedures unless it involves the interpretation of the collective bargaining agreement. That is the respondent's principal argument. It is the principal issue that is discussed in the briefs. It is essential to his case in our view, and it is the lynchpin of the RLA part of the Ninth Circuit's opinion, but in our view it is wrong for two reasons. The first is that it just doesn't apply to this case because, as explained in our briefs this controversy does involve interpretation of the bargaining agreement, specifically Rules 39 and 40, which are discussed in our briefs, and remarkably have never been addressed by the respondent. But the even more important point is this. If this dispute were not covered by the bargaining agreement, then you have effectively repealed part of the RLA because by its terms it applies to, and I am quoting, "all disputes growing out of grievances or the interpretation or application of bargaining agreements. " That language very simply could not be more plain. The respondent cites cases saying that the RLA applies to interpretation of the bargaining agreement, and of course it does, but it also applies to something else, and that something else is grievances. Otherwise why would Congress have used this disjunctive, "or". The legislative history makes it very clear that Congress meant what it said. We have those citations in our brief. I will refer just to the one from Congressman Barkley, who was the principal legislative sponsor of this bill, that what they wanted to do was to resolve, and I am quoting, "disagreements over grievances, interpretations, discipline, and other technicalities that arise from time to time in the workshop and out on the tracks. "
Sandra Day O'Connor: Well, Mr. Lee, I don't understand why if you are right about the Railway Labor Act, that actions from mental injury stemming from grievable disputes are preempted by the Railway Labor Act, why, then, are not physical injuries that also stem from grievable disputes not similarly preempted?
Rex E. Lee: The reason in our view that they are not, Justice O'Connor, is because you have to reach some kind of an accommodation of both statutes, and you cannot simply turn your back on either of them. Now, my opponent takes the position that we have effectively repealed the FELA. Our position is that their view, and certainly in this case, if this case on its facts can go into court on these allegations, then the RLA... then the RLA has been effectively repealed. We think the only way to prevent that is to ask in each instance what is the real thrust of this particular claim, and if it is physical injury, if what he is talking about is the traditional kind of thing that has fallen within the FELA, then the FELA prevails, but if it does not, if the real thrust of what he is complaining about is how the workshop ought to be run, what are the rules of the railroad, then it ought to be an RLA grievable offense. There may be--
Sandra Day O'Connor: Why would you not approach this case in the same way the court did with the National Labor Relations Act?
Rex E. Lee: --I think we do except that there are two different statutes, and because there are two different statutes their underlying policies cut in opposite directions. The reason that in Farmer this Court held that state law does not... excuse me, that the National Labor Relations Act does not preempt state law was twofold. The first is that in Farmer the Court simply reasoned that there was nothing in the National Labor Relations Act that would be impeded by allowing arbitration to... excuse me, by allowing personal injuries to go ahead under state law, but the difference between the NLRA and the RLA is very significant in this respect. The central focus of the Railway Labor Act is a dispute or at least the minor disputes part of it is a dispute resolution process that is extrajudicial. That is entirely different from the central focus of the National Labor Relations Act which does not proceed in that way, and as a consequence with regard to the Railway Labor Act, unlike the National Labor Relations Act, you have this conflict that comes into play. The other difference is that you have two federal statutes that are at issue in this case and with regard to the National Labor Relations Act you only had one.
Antonin Scalia: May I ask why it is you think that the language "disputes arising out of grievances or out of the interpretation or application of a grievance. " necessarily means that the matter does not have to be based in the contract?
Rex E. Lee: Because otherwise the word "grievances" simply becomes meaningless.
Antonin Scalia: Why couldn't you have a grievance which consists of a situation in which both the employer and the employee are clear on what the agreement means and what it requires in this case, what its application should be in this case. The only disagreement is as to the fact of the matter, whether indeed the employer did this or that. There is no dispute whatever as to what the agreement requires. Wouldn't that be a grievance and yet not be a dispute arising out of the interpretation or application of agreements?
Rex E. Lee: Well, but it says interpretation or application. And I think the--
Antonin Scalia: But there is no dispute as to how the agreement applies. It is clear that the agreement requires a certain thing, and what the employee is arguing is, that certain thing was not provided.
Rex E. Lee: --All right. I have three answers. The first is--
Antonin Scalia: It is at least a plausible reading of the word "grievances".
Rex E. Lee: --That's right. It is at least one instance in which you could have the two of them existing side by side, but I think in fairness it is not the more common sense reading of that term when you have the or, particularly--
Antonin Scalia: The problem I find is that once you depart from that interpretation what in the world is not covered by a grievance? An employee says that his supervisor borrowed money from him and didn't pay it back.
Rex E. Lee: --That is exactly the point, Justice Scalia.
Antonin Scalia: That is a grievance.
Rex E. Lee: That is correct. Or at least if it relates to how you run a railroad, that is, if it has some relationship to what Congressman Barkley said was matters of discipline or how, what happens in the shop or out on the tracks, that is what Congress intended to do, was to give a scheme that was comprehensive, so that all of these disagreements concerning how you run a railroad, whether they arise out of interpretation of the bargaining agreement or not, were to be resolved in this way.
Antonin Scalia: But they all arise out of interpretation of the bargaining agreement if they pertain to the running of the railroad. Certainly any obligation, any obligation that the employer has must be implicit. It is either expressly in the agreement or impliedly in the agreement. What other obligation does the employer have?
Rex E. Lee: If you take that point of view, and you may be right, then certainly Rules 39 and 40 of this agreement do cover this circumstance and under the facts of this case then the RLA definitely does apply. I would simply point out, however, that the legislative history seems to say to us the contrary, that they did intend it. If you are correct that the bargaining agreement will be comprehensive as to all rules of the shop, then it is true there is no overlap. If, on the other hand, you take the point of view that there may be some matters concerning how the workplace ought to be run that are not covered by the bargaining agreement, then we say that that is also covered, and this Court has said the same thing. And that is this Elgin versus Burley case which the respondent concedes he must, in order to succeed, persuade this Court to disown. There is no reason to do that. Contrary to the respondent there is no indication, no indication in Andrews that it was rejected in Andrews, and Elgin versus Burley by its terms has been applied by many of the lower courts and the National Railroad Adjustment Board itself.
Lewis F. Powell, Jr.: Mr. Lee, do you define what place to include the entire railroad? You refer to the workplace.
Rex E. Lee: Yes, I do, Justice Powell, in the sense that it is where Mr.... it is on the... in Congressman Barkley, in the workplaces, in the shop, and out on the tracks.
Lewis F. Powell, Jr.: So if you had an engineer who was alleged to be abusive of other people working with him on a particular train you would take the same position?
Rex E. Lee: Yes, sir, I would.
Lewis F. Powell, Jr.: So really your argument comes down to whether or not the nature of the injury is emotional distress rather than physical injury. Suppose when they used to have firemen on trains that the firemen beat up the engineer in a physical encounter. Would that be under... which Act?
Rex E. Lee: Under the FELA.
Lewis F. Powell, Jr.: Under the FELA?
Rex E. Lee: Yes, because you have then the physical injury.
Lewis F. Powell, Jr.: So the big issue in this case, is a distinction between physical and emotional injury, regardless of where it took place.
Rex E. Lee: Yes, and while that may... that is correct, and while that may seem to be somewhat arbitrary we submit it is a very important one because of the need to draw some line in order that neither statute completely consume the other. That is the problem that you have in this case. And we think that since federal courts had gone really up until this case and one other without ever defining the FELA to apply to any nonphysical injury, that that is a logical dividing line. Certainly my opponent concedes that at the time the FELA was adopted in 1908 that was the intent. Nevertheless he argues that the FELA should now be given coverage more broad than Congress intended in the first place. We think that is wrong for two reasons. The first is that if the FELA is to be expanded in this coverage it ought to be Congress that does it rather than the Court, but even more important is this, that if you interpret the FELA as expansively as my opponent would suggest, then you do put these two federal statutes into conflict. The basic error of the Court of Appeals approach was that it went out of its way to create conflict between these two federal statutes by giving an unnecessarily crabbed interpretation to the RLA by saying that it applied, that it did not apply to this circumstance notwithstanding the existence of these provisions in the bargaining agreement and notwithstanding the fact that under any circumstance this dispute is really about how to run a railroad, and then gave an unnecessarily expansive interpretation to the FELA. As long as the two are carefully interpreted each sensitive to the needs of the other, then there need never... then there is no reason that the two cannot continue to coexist for another 60 years as they have over the past. This point is really driven home by the respondent's attempt to change his allegations once the case gets before this Court. He now contends for the first time before this Court that he really has alleged physical injury for reasons stated at Pages 17 and 18 of our brief it is our view that that cannot be done before this Court, that he has presented one state of facts before the lower courts, the Ninth Circuit has made its ruling on the basis of that state of facts, and we are now entitled to have that ruling reviewed. But even more important is this, that even if he were now permitted to change his allegations this would not save the Court of Appeals holding, and the reason is this. Congress determined 60 years ago that disputes over how the workplace should be run are to be resolved nonjudicially. That Congressional judgment can be thwarted by the wording of complaints unless courts at some appropriate point ask the question, what is the real gravamen of this grievance. Is the real thrust of this dispute an FELA cognizable injury or is it really a disagreement over how to run the shop? Here there is no question that the real focus of Mr. Buell's grievance is friction between a foreman and his employee. This is not a case that concerns gastritis or one employee bumping another. The real grievance here is that Mr. Wright was not doing a good enough job of keeping the other men in line. And this is borne out by the fact that the physical injury argument wasn't even made until the case reached this Court. Mr. Chief Justice, unless the Court has further questions I would like to save the rest of my time.
William H. Rehnquist: Thank you, Mr. Lee. We will hear now from you, Mr. McCall.
James R. Mc Call: Mr. Chief Justice, and may it please the Court, it is my privilege to address you today as counsel of record for Jim Buell, a veteran railroad worker of over ten years' employment with the Santa Fe Railroad who in October of 1981 sustained a severe and grievous injury. Of that there can be no doubt. Certainly the primary aspect of his injury was psychiatric. He was confined to a psychiatric ward in St. Joseph's Hospital in Stockton, California, for 17 days. For six months he was on psychiatric medication. Over a year on psychotherapy before he could go back to work. His admitting physician, psychiatrist Robert Austin, said the man suffered a severe psychotic illness related to pressures on the job. The injury, we submit, was grave. Santa Fe's position in the lower court was simply that because the facts or some of the facts that were necessarily alleged in the FELA action involved a dispute or controversy or friction if you will between Mr. Wright and his foreman, Mr. Buell, pardon me, Mr. Buell and his foreman, Mr. Wright, that Mr. Buell was precluded and unable to use the FELA as a vehicle to attain redress for the injuries he suffered. Now, that position has altered in this Court. Now the focus has been more on the fact that psychiatric injury is the primary ill or grievance that Mr. Buell suffered in October. The Santa Fe position, I think, needs some elaboration by me on the facts. Basically Mr. Buell had worked for Santa Fe for ten years before Mr. Wright became his foreman. Friction developed between the two some time after Mr. Wright became foreman in the fall of 1979.
William H. Rehnquist: Is this all in the affidavits and so forth on the motion for summary judgment, Mr. Buell... rather, Mr. McCall?
James R. Mc Call: Justice, the affidavits... it is clear in the Buell brief that I put in, we did not marshall facts showing physicality in the lower court because the thrust of Santa Fe's argument there was that it made no difference what type of injury was involved. Their sole focus was the source of the injury was something that could have been grieved.
William H. Rehnquist: Don't you think probably in this Court you are limited to what the record shows, either the complaint or the affidavits produced in the summary judgment proceedings?
James R. Mc Call: Again we submit, Your Honor, that we should be able to point to things that are in the record that were not produced in the motion for summary judgment simply because the motion for summary judgment was rather narrow. It was directed solely to a point of law, to wit, and it is hard for me to state it because it is hard to get a grip on it, Mr. Buell is precluded in Santa Fe's eyes in the lower court from stating an FELA cause of action because some of the facts he alleged involve a grievable dispute regardless of the injury. The motion for summary judgment was basically met on the basis of a point of law. They are saying no, the FELA is not precluded by the RLA. The fact that something could be grieved does not mean that you lose a right to bring an FELA action it an injury results.
William H. Rehnquist: What you are referring to then is something that is in the record although perhaps not used in the summary judgment proceeding?
James R. Mc Call: That is correct, Justice, yes, and I won't... the point as to the physicality, the physical causation, the physical consequence, the gastritis, the common law battery, if you will, those items are developed in my brief at Pages 33 through 40 and I won't refer to them again. In any event--
Antonin Scalia: The common law battery, you assert that there was a physical contact by... was it wright or one of the coworkers?
James R. Mc Call: --It was one of the fellow workmen, a man named Williams. There was pushing and shoving.
Antonin Scalia: And that is in the record.
James R. Mc Call: That is in the record. Yes, Your Honor. It is developed in my brief at the pages I indicated.
Antonin Scalia: Were damages sought for the pushing or shoving?
James R. Mc Call: The damages... the allegation in the complaint was that he suffered physical and emotional distress, but it is clear--
Antonin Scalia: The physical stress referred to was the--
James R. Mc Call: --Gastritis.
Antonin Scalia: --the gastritis.
James R. Mc Call: The gastritis, and certainly--
Antonin Scalia: So whatever physical injury there is is, you would acknowledge, physical injury arising from the emotional injury.
James R. Mc Call: --Yes, Your Honor, very definitely. The point I want to make, and I will sum up my factual recitation here rather quickly, is that the dispute as to the work orders, as to whether or not Wright was asking Buell to perform an illegal act in helping him remove Santa Fe plywood and such into Wright's truck so he could take it home. That was really resolved long before this course of conduct about which we really complain. There was a... this was really resolved prior to the grievance meeting that was held in which large numbers of men in the Stockton yard complained through their union representative about the abusive, harassing techniques of this foreman, Mr. Wright. Now, Santa Fe chose to respond to that grievance by doing nothing. They didn't take Mr. Wright off the job and they didn't change his conduct. At least that is what the record shows. Yes, Justice.
Antonin Scalia: What is the source of that grievance? It goes back to a question that I asked Mr. Lee. Isn't the source of the grievance that the employer by reason of his collective bargaining agreement has an obligation, a contractual obligation not to let his supervisors behave in this fashion? Isn't it ultimately based on the collective bargaining agreement?
James R. Mc Call: If you approach it as a grievance, but, Justice Scalia, under the FELA Congress was very clear about wanting to make the master responsible for the acts of the fellow servants in the workplace, in the railroad workplace, and it would seem to me that the FELA imposes a duty on Santa Fe to take reasonable steps to see that their foremen do not abuse their workmen, so in that sense it seems to me a classic FELA case.
Antonin Scalia: You assert that that is an obligation separate and apart from any contractual obligation?
James R. Mc Call: Yes. Yes, Your Honor. Yes, that is our position. The particular quotation from the House report on the FELA in 1908 that supports this, and it is very, very clear on the notion that Congress wanted the master to police, if you will, the acts of the servants so they didn't injure one another appears at Page 42 in the Buell brief. After the grievance proceeding which Santa Fe chose to take no action on, there was a letter by the union representative, Mr. Pickleman, who was a supervisor overseeing the work of Mr. Wright on June 6th saying the men are still complaining about the intimidation and harassment and the tactics that Mr. Wright uses in running the work crew. After this, there was harassment directed to Mr. Buell that is outlined in the Buell brief and there is no need to go into it, but that is the course of activity of which Mr. Buell complains, really, the harassment, the intimidation, and the acts after the grievance proceeding. If I may, I would like to offer an analogy which I think is somewhat helpful to clarify the difference between the Santa Fe position and ours. If you assume that you had a dangerous foreman, a foreman who was sadistic, clearly that would be a grievable matter. The workers, workmen under the foremen could grieve it, they could get the union representative in and they could present the issue to Santa Fe. If Santa Fe chose to take no action and a number of months went by and the foreman then became infuriated with one of the men on the job who had complained about his activities previously and brought a gun onto the worksite and shot that workman we contend there would be no conceivable way that the FELA would not give a cause of action to the foreman. Now, to bring it much closer to this case and make it almost all fours on Mr. Buell's complaint, if we assume that after the nonproductive grievance the foreman some months later becomes infuriated with one of the men who complained about his conduct as a foreman, brings a gun onto the worksite, but the gun isn't loaded, but of course the worker does not know that, and the foreman points it at the worker and pulls the trigger and it just goes click. Now, in that situation let's further assume that the workman in fear of his life has a psychiatric event, and has a psychiatric breakdown. That, I submit, is very, very close to the exact facts that we have in this case, and I doubt that Congress would have wanted to preclude or shut the federal courthouse doors to that workman when he wanted to come in and try and make his proofs to the court under the FELA.
Byron R. White: Mr. McCall--
James R. Mc Call: Yes, Justice.
Byron R. White: --suppose the foreman's conduct is grieved, and you have agreements, and it goes to the adjustment board, and suppose that it is found that he hasn't been harassing the man at all as a matter of fact. Now, under your position would he then be free to go before the... to bring his FELA action?
James R. Mc Call: He would be, Your Honor, if and only if he had suffered an injury.
Byron R. White: Well, let's suppose these very facts here. The only thing is there is no question that he has been in the hospital.
James R. Mc Call: Yes.
Byron R. White: But it is found that the foreman had nothing to do with it.
James R. Mc Call: As far as the grievance and arbitration procedures are concerned, what the foreman did did not violate any term of the contract. That would be to put the arbitration--
Byron R. White: Well, the fact was, the fact is that he didn't do what he claimed that the employee claims he did. He didn't harass them at all. Now, could you go ahead and try it out again in the FELA action? I suppose you could in your position.
James R. Mc Call: --Oh, I certainly could, Your Honor. Yes, I would. It would be just like the McDonald case that this Court decided unanimously in 1985.
Byron R. White: Yes.
James R. Mc Call: I can't see how arbitration or grievance is an adequate substitute for the Federal District Court jury trial right that the Congress gave under the FELA.
Byron R. White: What if you lose your FELA action? May you then grieve? I guess there is a time limit, though, isn't there?
James R. Mc Call: The time limits on grievance are rather severe.
Byron R. White: Yes.
James R. Mc Call: So it wouldn't arise, I suppose.
Antonin Scalia: I am not sure how this fits with what you said before. I thought you would say that this matter was not a grievable matter anyway.
James R. Mc Call: I didn't speak well on that, Justice Scalia. The matter would be grievable. The foreman's conduct would be grievable. There is no doubt of that. But once a workman is injured, then the worker has the right to go to the FELA and recover... pardon me, sue under the FELA, the Federal District Court, and recover for the injury.
Antonin Scalia: But it is only grievable, according to your position, if its source is the contract, and you said earlier that the source of the right here was not the contract.
James R. Mc Call: Well, there is the common law duty or the duty that the FELA recognizes on the part of the railroad not to be negligent in the way in which its fellow servants treat each other.
Antonin Scalia: Well, is that contractual or not contractual or are there two duties, one a contractual one which is grievable, and another one, a noncontractual one which can be brought under the FELA. Is that your position?
James R. Mc Call: Yes, Justice.
William H. Rehnquist: Isn't that contrary to the Elgin case?
James R. Mc Call: The Elgin case in a long... I don't think so. I don't think so, Justice. The Elgin case in a long, discursive conversation talks about major disputes, minor disputes, and in an offhand way says that minor disputes may include personal injury actions. Elgin in 1945 is premised on the Mohr case in 1940 which said that RLA grievance arbitration procedures are not exclusive, they are just optional. A worker could go in and pursue a grievance or a worker could go to Court. So Elgin, as I attempt to point out in my brief and as the AFL-CIO in their amicus brief stresses, Elgin is premised on the idea that the RLA is not... the arbitrable procedures under RLA are not exclusive. This Court in Andrews held that they were in 1972. So in that Elgin used loose language and talked in terms of personal injuries being grievable matters I don't think it is controlling at this point.
William H. Rehnquist: Well, but it also spoke in terms that grievable matters under the RLA were not just contract disputes but a broader classification of complaints. Now, this Court has never qualified that language in Elgin, has it?
James R. Mc Call: Not to my knowledge, Your Honor, but I--
Byron R. White: Your position is, even if it is grievable and even if it isn't covered by the contract or has its root in the contract, you would say that even if it is grievable, you can still have your FELA action.
James R. Mc Call: --Yes, indeed, Justice. That is exactly our point, that the FELA, like 1983, like the Fair Labor Standards Act, which was involved in Barentine, these are individual rights given to individual workers, actions by unions representing workers under arbitration procedures can't preclude or in any way affect those rights.
William H. Rehnquist: Even though to the judge in charging the jury in the FELA case would have to either interpret the collective bargaining agreement as a matter of law or charge them to interpret it as a matter of fact?
James R. Mc Call: That is our basic position, Your Honor, and we offer it as one of three ways we feel that there can be harmonization between the FELA and the RLA. I attempt to do that in our brief. I don't have the page reference here but the three options we offer are, the first that you have mentioned, and that is the preferred option as far as we are concerned, that is the position that the Ninth Circuit took. Once you have an injury you don't have an RLA matter any more. You could go back and... certainly you could always grieve, whether or not Mr. Wright is a proper foreman. He could try and get the company to--
William H. Rehnquist: Yes, and you say once you have an injury.
James R. Mc Call: --Yes.
William H. Rehnquist: And of course it doesn't have to be a physical injury. It could be unhappiness with the way the foreman is administering the collective bargaining agreement if it produce gastritis.
James R. Mc Call: It is unlikely a lawsuit is going to be brought for that sort of thing.
William H. Rehnquist: But it could in your view.
James R. Mc Call: Conceivably someone could bring a lawsuit for that, yes. That is correct, and when Mr. Lee mentions we have got to have some way of distinguishing between these two statutes I say Congress has already done it. Congress has said when you have an injury to any employee that is the result of negligence, then you have an FELA action.
Byron R. White: An injury has to be something to him personally. It won't be some economic injury.
James R. Mc Call: Yes, that's correct.
Byron R. White: It has to be some medically identifiable problem that arises out of it.
James R. Mc Call: Yes, Justice. Yes, that definitely would be the case. I can't think of anything that wouldn't be a personal injury that railroad negligence in the workplace would produce--
Antonin Scalia: Medically identifiable but not physical necessarily.
James R. Mc Call: --Pardon me, sir?
Antonin Scalia: It has to be medically identifiable, not necessarily physical.
James R. Mc Call: Yes, Justice.
Antonin Scalia: You would say that just emotional disturbance would be enough.
James R. Mc Call: Yes, I would.
Antonin Scalia: If that is medically identifiable.
James R. Mc Call: Yes, that it would be medically identifiable and under the general tort rules you could satisfy causation which is going to be a problem in emotional injury, but it is a problem also in back injuries, which are rather common under FELA.
Thurgood Marshall: Is this emotional business you are talking about words only?
James R. Mc Call: Pardon me, Justice?
Thurgood Marshall: Words only?
James R. Mc Call: Yes, I would say that--
Thurgood Marshall: That is enough to you?
James R. Mc Call: --Yes, Your Honor. It is enough in many, many states--
Thurgood Marshall: To create an injury, like if he says, you are ugly, that could create an injury?
James R. Mc Call: --It is conceivable that that could do it, although one would think that usually it would take more than that and a consistent course of--
Sandra Day O'Connor: Well, Mr. McCall, do you really think that Congress back in 1908 thought it was authorizing an FELA, a cause of action for that kind of thing or even for mental injury? Was there any state in the United States at that time that even allowed recovery for this type of injury?
James R. Mc Call: --If so, I don't know it at this time, Your Honor. Some of the treatise writers mention cases going back into the 19th century where emotional distress was--
Sandra Day O'Connor: What it we think that FELA just doesn't cover emotional injuries?
James R. Mc Call: --Then Mr. Buell certainly has a hard case to bring then because that would be... as a bottom line, emotional injury has to be compensable under the FELA and has to be recognized as an injury. In more direct response to your question, Justice O'Connor, I have no idea what was in the collective intention of Congress in 1908 except I do know that they intended to treat railroad workers as almost a privileged class, a protected class, to give them the right to bring actions when they were injured that no other worker had 1908. Congress did away--
Sandra Day O'Connor: The indications, though, were that Congress had in mind physical injuries arising out of some kind of negligence on the part of the employer with regard to the equipment or working conditions, didn't it? I mean, that was the background.
James R. Mc Call: --Oh, certainly that was the background, but I submit that this Court in Urie versus McDonald in 1949 took this direct issue on and gave to me what would be a guiding precedent for that case. In Urie you had a railroad worker who had suffered silicosis, which, of course, is abrasion of the lungs through breathing in cold dust. Now, that had gone on for a long period of time. The negligence would be clear. The railroad should have provided a safe work place where this worker was not subjected to that. He brought suit when the silicosis manifest itself and he could no longer work. The railroad defended by saying Congress only intended in 1908 to protect workers from sudden grievous accidents, the sort of thing where a worker gets run overt the sort of terrible accidents that clearly Congress had in mind. That was the background. This Court said, no, we will not give a cramped, constrained limitation to the word "injury". Any injury that is compensable under evolving tort notions is going to be considered an injury for purposes of the FELA. Now, that is consistent with the notion that we want in the FELA the master to control the acts of the servants, we want the safest possible workplace for the people to do the very hard and dangerous work of building and maintaining the railroads.
Lewis F. Powell, Jr.: Mr. McCall, in light of what you have been saying recently, may we ignore the fact that your brief alleges physical injury? At the bottom of Page 12 of your brief you state that Buell suffered physical injury as well as severe mental breakdown and that the harassment causing his injuries included physical contact and common law assault.
James R. Mc Call: Yes.
Lewis F. Powell, Jr.: May we ignore that?
James R. Mc Call: No, Justice--
Lewis F. Powell, Jr.: Well, does the record prove what you say there?
James R. Mc Call: --The record does contain--
Lewis F. Powell, Jr.: Where is it? That is what I am interested in.
James R. Mc Call: --In Mr. Buell's deposition he talks of being pushed and shoved.
Lewis F. Powell, Jr.: Where do I find that deposition?
James R. Mc Call: It is--
Lewis F. Powell, Jr.: In the appendix?
James R. Mc Call: --Yes.
Lewis F. Powell, Jr.: Do you have the page by chance? I don't want to detain your argument. Well, it is in the deposition? Is the deposition in the record that has been lodged here?
James R. Mc Call: In the Court of Appeals record, which it was my understanding has been lodged.
Antonin Scalia: Mr. McCall, I asked you about that earlier. I thought you said earlier that the only injury you are complaining of is the injury that was the result of the emotional disturbance. You are not seeking damages for the pushing and shoving in and of itself.
James R. Mc Call: That is correct.
Antonin Scalia: That is what I thought you responded.
James R. Mc Call: That is correct, Justice Scalia. Perhaps I misunderstood. The common law assault, the touching, the battery, this occurred during the course of conduct leading up to the psychiatric breakdown.
Lewis F. Powell, Jr.: But we may ignore that for the purpose of deciding this case. You rely eventually on what the courts below described as emotional injury.
James R. Mc Call: Yes, in essence, that is correct. The physical injury that the man suffered, the gastritis, was a product of a psychiatric event of real significance.
Antonin Scalia: That is the physical injury you are complaining of.
James R. Mc Call: That's correct.
Antonin Scalia: Not the pushing and shoving.
James R. Mc Call: Right, there are no bruises or contusions.
Antonin Scalia: That is an element of the emotional... it is one of the things that produced the emotional injury along with mocking the man and so forth.
James R. Mc Call: Yes, and some courts have been more willing to grant relief for emotional distress or psychiatric injury when there has been accompanying physical harm because of a concern about was there really something happened or something that was really suffered by the plaintiff in Prosser and the other hornbooks. I was pointing out that there are elements of this in the record. They were not produced and marshalled for the purpose of the summary judgment motion because the summary judgment motion was solely based on the idea that the FELA can have no application here for either physical or mental injuries because it is an RLA matter.
Lewis F. Powell, Jr.: Was the burden on you or your opponent at the summary judgment motion stage in this case to produce this evidence?
James R. Mc Call: We submit it was on... it was not on us to produce the evidence. We submit--
Lewis F. Powell, Jr.: Did the railroad have that evidence?
James R. Mc Call: --The railroad had taken the depositions, yes. And they had the letters from the doctors.
Lewis F. Powell, Jr.: The burden was on the railroad to prove that there was physical injury?
James R. Mc Call: No. No, Your Honor. What the railroads should have done in their motion for summary judgment was to say that Mr. Buell has no cause of action here because he alleges only emotional injury. If that had been the case then Mr. Buell would have responded and brought out that there was more than emotional injury. There was accompanying physical harm, which has been important to some courts, but the railroad did not do that. Santa Fe didn't do that. They just said no--
Lewis F. Powell, Jr.: That is not the way I always saw summary judgment operate, but may I ask you another question?
James R. Mc Call: --Certainly.
Lewis F. Powell, Jr.: Do the workmen's compensation laws of the states provide for purely emotional injury?
James R. Mc Call: I have not researched that thoroughly, but it is my understanding that many do not.
Lewis F. Powell, Jr.: That would be my impression.
James R. Mc Call: California does not.
Lewis F. Powell, Jr.: The FELA was enacted to provide, as I think you have indicated, special privileges for railway employees. The brotherhoods have always opposed workmen's compensation laws.
James R. Mc Call: Yes. One point that I did want to make was the anomalous situation that would occur were this Court to accept the argument of Santa Fe in this case to the effect that Mr. Buell, because he suffered only emotional injury, must grieve his matter and cannot go through the FELA doors to the federal court. As a product of the grievance and arbitration process he could not recover damages for the suffering that he has incurred. He couldn't get damages for his lost future earnings. He would be without a remedy.
Sandra Day O'Connor: There may be some state court tort action remedy that survives for outrageous conduct, don't you suppose?
James R. Mc Call: There may be some for outrageous conduct but, Your Honor, I submit that the problem with relegating these kinds of injuries to state law would be a lack of uniformity in application to the railroads. We would have a situation where if the state of Nevada... well, the state of California does acknowledge infliction of emotional distress, and the FELA has been interpreted by the California Supreme Court in 1960 to allow it, as I point out in the brief, for 25 years. If you had workmen in the position of Mr. Buell relegated to state law, then if California allowed intentional infliction of emotional distress but Nevada did not, and you had a situation where a railroad worker was going back and forth between the two states, then you get into some terrible conflicts about it or questions, and it is very, very hard for the railroad to operate, I would think, knowing what it has to counsel its foremen to avoid, just what sort of steps it has to take to see that things don't happen such as happened in this case. So I would think that national uniformity would mean that those state causes of action should be preempted and the FELA should be... allow for actions purely for solely psychiatric injury. If there are no further questions, I would just once again say that it is our position that the FELA, because of the acknowledged humane and humanitarian and remedial aspects of the statute as recognized by this Court speaks to us today simply because the idea that emotional distress was not cognizable in most states in 1908 should not preclude federal courts from being able to recognize the evolving law of torts and if there is any bright line needed between the RLA and the FELA it is fact of injury. Once that occurs, then the worker has a right to go to federal court in our position. Thank you.
Antonin Scalia: Just let me ask you a question before you sit down. The state court actions that you are referring to that allow redress for simply mental injury, they are actions for intentional wrongdoing, right? Those actions in the states do not allow someone to recover simply because someone else negligently causes mental anguish. It is an intentional tort, isn't it?
James R. Mc Call: By and large. Some states do allow negligent infliction.
Antonin Scalia: But by and large it is intentional.
James R. Mc Call: Yes, by and large.
Antonin Scalia: And your cause of action here is based on negligence.
James R. Mc Call: Yes, it is, Your Honor. I would point out one thing. In the McMillan case in 1960 the California Supreme Court when presented with this specific issue held that suffering purely psychiatric injury as a result of carrying out work orders from a railroad was compensable under FELA, relying very heavily on this Court's decision in Urie, the language in Urie, the language of the FELA, and the legislative history, and in California there has been no evidence that has been brought to anyone's attention that there have been spurious claims or that artful pleading has somehow defeated the will of Congress.
Byron R. White: Would you nave an FELA cause of action if you simply alleged that the foreman harassed this man and caused this injury and the railroad should be liable for the acts of its servants?
James R. Mc Call: And there was an injury. Yes, I would, Your Honor.
Byron R. White: You wouldn't have to say negligence. You would just say here the foremen harassed him, caused him great injury, and the FELA intends employers to be responsible for the acts of their servants. Is that all you need to say?
James R. Mc Call: That would seem to me to be adequate. An allegation of negligence which was made in this case does focus on the idea that the railroad did not act reasonably.
Byron R. White: But is the FELA confined to negligent actions?
James R. Mc Call: I think the language of Section 51 does indicate that.
William H. Rehnquist: Thank you, Mr. McCall. Mr. Lee, do you wish to say something more? You have three minutes remaining.
Rex E. Lee: Just two brief points, Mr. Chief Justice. The first is that this has to be regarded as a claim exactly as the respondent presented it to the lower courts involving solely emotional injury.
John Paul Stevens: May I ask you on that point, Mr. Lee, about what happened in the trial court? Is your opponent correct, because your joint appendix is so very thin in this case, in saying that the only argument you made in support of the summary judgment motion was one based on the RLA and that you did not separately argue a pure FELA no cause of action?
Rex E. Lee: I think that is probably a fair statement, Justice Stevens, but the point was, they did allege only emotional injury. Under those circumstances of course we argued it is then covered by the RLA. Then once the--
John Paul Stevens: Why wouldn't you at that point, if that was that clear at that point, why wouldn't you then also have made your alternative argument that you are advancing in this Court seeking reversal?
Rex E. Lee: --Well, perhaps we should have done at that stage. In any event we won on the RLA argument. Then it went to the Ninth Circuit and the Ninth Circuit said beyond any question that the only question they were deciding was whether the railroad employee's wholly mental injury is compensable under the FELA, and they held that it was, and that is the judgment now that we are attacking in this case, and certainly we are entitled to attack the correctness of that determination that a wholly mental injury is compensable under the FELA. And here is why it cannot be. Congress has made a determination that the tens of thousands, hundreds of thousands of work place disputes are to be resolved nonjudicially. Andrew said that that is exclusive and mandatory. There is the potential to artfully plead into a safe harbor, into a judicial safe harbor by simply alleging an FELA complaint, so that the key to pleading out of the RLA is how broadly you construe the FELA. Only three courts in the history of... in the 80-year history of the FELA have held that it applies to nonphysical injuries. They are the McMillan Court, the California Supreme Court in McMillan, the Ninth Circuit in this case, and the Seventh Circuit in Lancaster.
Antonin Scalia: When you exclude physical injury from this case you mean to exclude not merely the pushing and shoving but also the gastritis. Is that right?
Rex E. Lee: No, Justice Scalia, I am saying that the gastritis really doesn't count under the facts of this... that really isn't what he is talking about. It wasn't what he alleged below. But more than that you have to look and see what is the real gravamen of what he is talking about.
Antonin Scalia: What you are seeking from this Court is a narrow holding that just says, assuming there wasn't any gastritis resulting, any physical injury resulting from this emotional state there is no cause of action under the FELA, and we will reserve for another day whether if this emotional injury had caused gastritis or some physical injury that would entitle the plaintiff to a cause of action. Is that what you are asking us to hold?
Rex E. Lee: That is my argument. I would also say, I would also say that even in that harder case you have to ask what is the real thrust of what he is asking for here? Is he really complaining about gastritis or is he really complaining about his foreman's supervision of the workplace? Thank you very much.
William H. Rehnquist: Thank you, Mr. Lee. The case is submitted.


Earl Warren: Number 701, October Term, 1955, Curtis Reid, Superintendent of the District of Columbia Jail, Appellant, versus Clarice B.Covert and Number 713, October Term, 1955, Nina Kinsella, Warden of the Federal Reformatory for Women, Petitioner, versus Walter Krueger. Mr. Solicitor General.
J. Lee Rankin: May it please the Court. This case involves the reargument case, the Court handed down the opinion by a spring and the question presented is whether Congress has the power under the Constitution to confer jurisdiction on a court-martial to try a dependent wife of a member of the U.S. Air Force residing in public quarters on a base in a foreign country for alleged murder of her husband there. If Court asked for general reargument, as we understand, but also asked for such answers as we are able to give to certain specific questions. The particular questions were the specific practical necessities in the Government and Regulation of the land and naval forces which justify court-martial jurisdiction over civilian dependents overseas, the practical alternatives to the exercise of jurisdiction by court-martial to the historical evidence so far as such evidence is available and relevant bearing on the scope of court-martial jurisdiction authorized under Article I, Section 8, clause 14 in the Necessary Proper Clause and bearing on the relations of Article III and the Fifth and Sixth Amendments in interpreting those clauses. In particular, the question whether such historical evidence points to the conclusion that the Article I, Section 8, Clause 14 power was thought to have a fixed and rigid content, or rather that this power is modified by the Necessity and -- Necessary Proper Clause was considered a broad grant susceptible of expansion under changing circumstances, three, the relevance for purposes of court-martial jurisdiction over civilians overseas in time of peace of any distinction between civilians employed by the Armed Forces and civilian dependents. With regard to that question, I take it, there's no problem between counsel in the case because they disagree that there is no distinction between civilian dependants and civilian employees for constitutional purpose by the parties and their briefs in this Court. The relevance -- number four, the relevance for purposes of court-martial jurisdiction over civilian dependents overseas in time of peace of any distinctions between major crimes and petty offenses. Before addressing ourselves on behalf of the Government to the particular questions asked by the Court, I would like to review very briefly the principles involved we think that are controlling to the case. First place, Government contends that there's no question about the power of the United States to try persons such as the defendants for crimes committed in a foreign country, the trial to be held in the foreign country by the United States that that is a power that is resident in the United States by reason of its sovereignty and is based upon what this Court has said in Curtis Reid and the U.S. against Belmont, U.S. against Pink and other similar cases in regard to that power. Secondly, we believed that the Court opinion in which reliance was placed on the historical views of a consular court, In re Ross is fully supported by the action of this Court in the past and that that power as delineated there, the sovereign power of the United States is a justification and basis for the action in this case. I might call particular attention to that. There are some question now in the briefs about whether counsel did concede that a trial by such a consular court at this time, being last spring or when the case was argued, could be had. But in the briefs at this time, there is no argument that there was not a power in the United States prior to adoption of the Constitution exempting particularly and specifically the consular courts so that it is recognized by both parties that prior to the adoption of the Constitution, there was a power to try by means of the concept of a consular court, persons such as the defendants in this case. Now, we do not think that that power merely died because of the problem in regard to extraterritoriality. What is involved in that concept is the right of the United States as a sovereign to try a citizen by something different than a court requiring a jury trial and a grand jury's indictment and the other -- or Article III requirements as to tenure of -- of the judges and so forth. And that certainly, the United States, if it had the power prior to the adoption of Constitution to exercise the trial, all of the trials or a person such as the defendant by a consular court could improve that court and make more due process and add to the protections and provisions to care for the interest of the defendants and was not limited to whatever limitations there were in the consular form which obviously, both parties were here recognized, all parties were much more -- much less in the protection of the interest of the defendants as far as due process and fair trial is concerned than what we have in courts-martial. We also feel that the historical material that we would develop for the Court have in our briefs and will -- presentation here, fully justified the conclusion that in the history of this country and prior to the constitutional convention, the use of court-martials for civilian dependents, as well as civilian employers who were connected in manners similar to what is involved in these cases with the military was the common practice and was a necessary, recognized as a necessary practice in the handling of the disciplinary problems of the forces, both of the British prior to the war period, hostilities, and actually during the revolutionary period, and by our own troops including certain statements by George Washington himself with regard to the problems and difficulties he had with this brief questions.
Earl Warren: That apply in times of peace as well as war --
J. Lee Rankin: We have some --
Earl Warren: -- Mr. Solicitor General?
J. Lee Rankin: Mr. Chief Justice, we have so many examples in time of peace. I don't want to overstate the case. The examples in time of peace are questioned by counsel on the other side saying that in Boston, during the colonial period, the British had declared martial law. And we question whether on your -- under any of the concepts that this Court have stated regarding the necessity, a feature of martial law that there could have been martial law in Boston, we don't agree that there was martial law but there is that question that they raised about it. We have in several examples, also a period prior to -- or not during actual hostilities in Canadian activities in -- where there were court-martials and by the British. And they questioned those cases saying that although the hostilities, all fighting was over, the British was and there no peace treaty signed, and therefore, it was not actual fighting hostilities at that time. And we do not think that that question is valid in view of the circumstances, but we did not find detailed cases beyond that of peacetime except several cases in regard to India that were after the revolutionary period, after the adoption of the Constitution, we don't think that they are as good material, historical to help the Court on the problem as these incidents that occurred prior to the adoption of the Constitution which we can assume from what I will develop here. The people in the -- the members of the constitutional convention were well aware of.
Earl Warren: It's your position then that -- that it applies equally in time of peace to time of war?
J. Lee Rankin: Yes, but the same problems are developed and the same reasons, which I'll try to show, are the basic reasons for doing it during the war period are present during the peacetime. And that the various commanders in describing their difficulties with -- dealing with various wives and dependents as well as the civilian employees illustrate that they had this disciplinary problem that couldn't be handled, otherwise, and that's why they had to do it. The same is true, we think, in peacetime and I will try to develop that. Before proceeding to the history, I should like to call briefly at -- the attention of the Court to the case Ex parte Quirin. I want to make it unmistakably clear that that is not the same factual situation to this case at all. There were saboteurs involved there. It wasn't the question of military commission. But the Court did very carefully in unanimous opinion examined some of the materials, some of the basic principles involved in the question of whether persons were entitled to a jury trial and grand jury indictment. And I think it is quite helpful and would be quite helpful to the Court to examine for that purpose. I do it for that limited purpose only. There, the Court said, present by grand jury and trial by a jury of the -- this nature where the crime is committed, where at time of the adoption of the Constitution, familiar parts of the machinery for trial in the civil courts. But they were procedures unknown to military tribunals which are not courts in the sense of the judicial article and which in the natural course of events, are usually called upon to function under conditions precluding, resort to such procedures. As this Court has often recognized, it was not the purpose or effect of Section 2 of Article III, read in the light of the common law to enlarge the then existing rights to a jury trial. The object was to preserve unimpaired trial by jury in all cases of a light nature as they might arise in the future but not to bring within the sweep of the guarantee, those cases in which it was then well understood that a jury trial could not be demanded as a matter of right. The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury, which Article III, Section 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. Then the Court went on to refer to petty offenses, as the illustration citing cases by this Court, trial of criminal contempt, action to enforce a penalty inflicted by Congress, citing cases, and said no exception is necessary to exclude from the operation of these provisions cases never deemed to be within -- within the terms. Now, concerning the application by this Court --
Earl Warren: May I ask this --
J. Lee Rankin: Yes.
Earl Warren: -- this question. Do you -- it is your position then not to -- to insist upon a jury trial of these women in these cases would be to extend the function of the jury rather than to -- to restrict it?
J. Lee Rankin: That's right. Now, I'll try to develop that in showing the history. And it seems to me that we have to look back to the time of the constitutional convention and see what was done then, what the common law was. And if at that time there was certain exempt exceptions, and it wasn't conceived that a jury trial and a grand jury indictment pr am Article III Court, were intended to cover a particular activity which we all pretty well conceded about petty offenses for instance. Then in -- if that's the kind of a case we have before the Court today, then you can't take and apply jury trial under the decision of Ex parte Quirin and a long list of cases by this Court to that type of action except by saying, “We'll disregard all the traditions in what the Fifth and Sixth Amendment we're trying to do in Article III and we'll extend that regardless.” And I think that's the position. Now, whether I can establish that that was the fact is the question. Mr. -- Mr. Solicitor General, as you go along, would you indicate whether you would make the same argument that if these people were guilty or charged, let's say, with treason or other crime other than murder?
J. Lee Rankin: I think there's a little different problem about treason. I'll try to cover that. I'd like to just say about legislative, of course, that this Court has held in a number of cases implied to the Philippines, Hawaii, the area now known as the State of Florida and other area in the country that was included at that time, when that was still a territory and not incorporated into the United States. In Puerto Rico and all of those cases that Congress had the power within -- that's what were dealing with here, whether or not Congress has the power on the Constitution to provide for this type of trial, had the power to provide for the trial of persons that in those territories that were not incorporated into the United States by not providing a jury trial or a grand jury indictment unless well established in the decisions of this Court. And we think that is very material to the consideration of this question. It's also applied to the problem of extradition in regard to the area of Cuba, in the Neely case and a very interesting involved presentation by the Court there. And that the Court held that the territory of Cuba, while as between the United States and other sovereignties, was in an occupied territory insofar as the people of Cuba were concerned and the United States was a foreign country because of the obligation that Congress had recited in legislation to restore as rapidly as possible with the Government in control of that area to the people of Cuba so that in that regard, it is comfortable to the problem here of foreign territory. Now certainly, it seems to us that if it's conceded that the cases involving territory not incorporated into the United States are valid today. The case involving a foreign country where we don't have that much control of jurisdiction or domination is a fortiori.
Felix Frankfurter: Well, wasn't the Neely case a case which raised the question whether a crime against Cuba, Neely was charged with demeanor crime against Cuba wasn't it?
J. Lee Rankin: That's right.
Felix Frankfurter: And he -- it extradited him.
J. Lee Rankin: Yes. So that in effect, the Court pleaded Cuba in view of what you said in the Platt Amendment as though it were France, namely, already set apart as a member of the family of nations?
J. Lee Rankin: That -- that's right.
Felix Frankfurter: It wasn't a question of this country prosecuting for a crime against it in Cuba by a tribunal other than an Article III tribunal, is that right?
J. Lee Rankin: That is -- that is its distinction. Yes, sir. We think that the evidence is quite clear that in colonial revolutionary period, the wives accompanying the troops will regard it as necessary part of the Armed Forces. The same was true in regard to the retainers and civilians who were part of the group of the military force but not a part of the Armed Force. There's number of definitions, but generally, it's recognized by all of the definitions that retainers, the dependents that by Winthrop that retainers, camp followers attending the army but not in the public service, by Oxford dictionary, a man or woman who follows or hangs onto a camp or army without being in military service. We were fortunate in finding a little book which we are supplying a copy of to all of the members of the Court which I didn't anticipate we could ever find in bearing upon this subject, but it's entitled “Woman Camp Followers of the American Revolution” by Walter Hart Blumenthal in which the question of the history is considerably documented in the appendix, and it is related by a student of this problem as to what was the practice during this period regarding such persons.
Hugo L. Black: Camp Followers?
J. Lee Rankin: That's right. And they included in the description wives, those who were alleged to be wives, those who were not wives, those who were civilian people who were providing various trade for the Armed Force.
Earl Warren: How about the wives -- the wives and other dependents of military personnel, who live on a cantonment in this country, are they camp followers too?
J. Lee Rankin: Well, under the --
Earl Warren: In a sense that that -- you say that book describes it?
J. Lee Rankin: I would think they would be under the sense of this book. And I think that that is provided for otherwise by the question of whether they're in the field. And the fact that Congress has expressed and provided that if -- if they are not in the field, they're not subject to the jurisdiction of the courts.
Earl Warren: Then could Congress say that the dependents of military personnel in this country who live on a cantonment are in the military service and would be subject to court-martial as these women are?
J. Lee Rankin: I think so far as power is concerned.
Earl Warren: Power is concerned, yes.
J. Lee Rankin: The power is there.
Earl Warren: Yes, I'm talking about power.
J. Lee Rankin: Yes. But they haven't done that and so we have a different situation. Now, whether or not this Court would say that that was a reasonable action in view of the -- or whether it was arbitrary, in view of the difference in the problem as we see it, there's a difference in the practical problem of women, dependent or the dependents and the civilian employees and within the United States. They don't get the kind of a trial in some -- they don't get a jury trial or grand jury indictment in many states and these courts held that they don't have to if they're tried under state law. But there isn't the problem that the military forces have of trying to maintain discipline in the United States where there is the same Government or part of the family of governments that is enforcing the laws and can be expected to enforce those laws that -- and there are still federal courts to act so that, whether or not this Court would find that it was unreasonable and arbitrary to require such military court or courts-martial to have jurisdiction in this country, I think that to be the problem rather than whether historically, there was such a power.
Felix Frankfurter: In your answer to the Chief Justice -- I beg your pardon --
Earl Warren: I'm just going to ask this. Do -- do any of your briefs point out the -- the difference between the disciplinary necessities that are involved between dependents who were living on a cantonment in this country and, let's say, outside of Washington and -- on the one hand, and -- and the dependents living outside of London on the other hand?
J. Lee Rankin: Yes. We developed that at some --
Earl Warren: You developed that?
J. Lee Rankin: -- some length, yes.
Earl Warren: Yes.
Felix Frankfurter: In -- in you answer to Chief Justice, you indicated that as to these cantonment wives, they're not swept into the court-martial area except when -- did I understand you to say went in the field?
J. Lee Rankin: Well, I -- I thought that the -- in the field in the United States would be the only time -- I think it --
Felix Frankfurter: Yes, well --
J. Lee Rankin: at the time of war too.
Felix Frankfurter: But I just don't get it. But what is in the field in that -- in that context field?
J. Lee Rankin: I have a plan to try to develop because it was --
Felix Frankfurter: But I didn't mean generally -- I didn't mean generally, but I was wondering whether taking the cantonment women out. Could the statute or the regulation, whatever that does it, use the word "in the fields?"
J. Lee Rankin: I think it's the time of war --
Felix Frankfurter: Well, certainly right.
J. Lee Rankin: Yes. And there's a special provision where Congress has expressly recognized that only in a very limited consideration in the United States.
Felix Frankfurter: I know you are -- I assume you are coming to "in the field" but I was wondering whether in that situation, Congress itself has defined it refusing it applies to war?
J. Lee Rankin: Yes. In the appendix, Exhibit A at page 82 of our reply brief, we have set out something beyond the Blumenthal Book and that we obtained a letter from Mr. Blumenthal delineating his ideas of what his discoveries were in detail in regard to the historical picture concerning these people accompanying the Armed Forces. Generally, he finds that the British forces were accompanied by women and children in peacetime prior to the American revolutionary war. And this is evidenced in -- by several illustrations. One is that in Jamaica, with the British detachments for more than 100 years, they had women and not only camp followers, but women who were wives of the men in the Armed Forces. And at the outbreak of the revolution, there is a communication to Lord George Germain ordering a detachment from Jamaica to Virginia of some 374 officers and men, included also 40 women and servants followed by similar detachments. He also illustrates it with the example of women in Canada with the British troops following the capture of Quebec in 1763 and they reported there with the British troops. And again, with the French in Canada in the mid 17th Century which this French sent a regiment to Canada for -- accompanied by women and that was in peacetime. And he refers to a letter of Martha May, June 4th, 1758 to Colonel Henry Bouquet from Carlisle, Pennsylvania which she says that she's been traveling 22 years with her husband every place that the company -- the company went. In those days, of course, the rations were issued uncooked to the troops but the women performed the function of cooking it, taking care of that and also washing laundry, sewing, nursing -- nursing the -- the called back was a very rough affair at that time and we didn't have the developments that we do, did during later period after Florence Nightingale in regard to that.
Earl Warren: Does the book develop the thesis that they are subject to military discipline?
J. Lee Rankin: Yes. Also they -- they were and there are recitals to different events when they were. The punishments were imposed, were often times whipping or confinement for infractions of discipline. There were certain court-martials. There were incidents described of whipping with a cat o' nine tails at the back of the wagons and some of the difficulties they had with drunkenness and all kinds of problems that are apparently inherent in such grouping activities and the mixture that was necessary involved in trying to carry on such activity are both met in that time. In the early days, women with the British in the Armed Forces in the British colonial possessions were subject to court-martial in peacetime according to Mr. Blumenthal. Punishment for female drunkenness, fighting or theft frequently prior to Braddock's campaign against the French at Fort Ducane in peacetime, numerous camp women were subject to military jurisdiction. 20 years before the American Revolution, women conveyed -- were conveyed from England with Braddock's command prior to the French and Indian war, 1754 to 1760. It's also very interesting in the description in a good deal of -- of basic material cited in all the sources, in Mr. Blumenthal's book. But to one of the difficulties that they had was that they would issue rations to the Armed Forces for so many men, so many wives and women, and so many children that so much ahead the provision for women and children, women being different in that from the men and the provision for the children being different from that for the women, and they would provide so many to a regiment and they found that they had so many more women and dependents along with them than they had contemplated that there was counts in correspondence back and forth between the British generals and other military men trying to explain why they were issuing more rations than they had men for and that they were supposed to have women and to children for and showing -- relating in detail the fact that they had these additional women and children along and they have to be taken care of. It was part of their problem and that it took just that much more money and that much more rations where they were supposed to have some 10% of the number of women and children as they did to the armed -- armed or military men in a certain unit. They would find that they had maybe half as many again and they would be trying to explain that discrepancy in the need for the additional finances and supplies. And they did that at some considerable length in addition to describing some of the difficulties of maintaining discipline and I don't want to have to mislead the Court about whether these women or wives or other wives because it -- it's quite apparent from the description that there were both. And that in some instances, neither the British or even -- it's implied, I think, some of our people were as too careful about whether they were either wives or camp followers because often times it's related to that they became married during the campaign or sometime during the period. But there were people, women without question during the description in this material who were actively trying to help with the conduct of the military activity. And they were providing for these men in a way that was done, men much as women do today and have for as long as we can recall.
Earl Warren: General, you mentioned the fact that the rations were issued uncooked and that the women -- women cooked them. Does the book indicate that they had any right to compel any service from these women in connection with the -- either the cooking or any other services in connection with the army?
J. Lee Rankin: The only indication that I could recall of anything like that was where it said that at one time, the women apparently were acting in concert to try to get us additional money, and that they wanted a little larger stipend than they were receiving. And he was threatening them with a court-martial if they didn't proceed to accept what he was offering and go ahead and take care of their men.
Earl Warren: Were they obligated to take care of the men?
J. Lee Rankin: There isn't anything that indicates that there was any legal relationship that would obligate them.
Hugo L. Black: They were -- I thought they were brought over for washing and for hospital service according to page 85.
J. Lee Rankin: I beg you pardon? I thought they were brought over here that institute something like the washing and hospital service for the Army and they demanded more wages than they were getting by working for the Government. He threatened them with a -- kind of what you called an injunction or something?
J. Lee Rankin: That's right. In that --
Hugo L. Black: They construed it.
J. Lee Rankin: -- that particular instance. But I didn't -- I don't think there's any connotation throughout the book that there's any legal relationship for the British hired women to do certain jobs or the American expeditionary force or our revolutionary force hired women to do these. It was a relationship that grew up because the men needed it and the women went to help them and they were allocated on that basis, first on the theory that so many women, wives of the men that were going over to this country for the British could perform the service and then they added to those, from time to time, brought additional problems, and they did do those various things. Now, there is the difference that there was the food that was uncooked at that time that there had to be some cooking for them. Now, of course, there isn't any question of what there's -- that function was carried on but it's -- there is also food provided with officers. There's a different arrangement. Oftentimes, the wives would cook in a place on the base for the -- the officer husband today just like she would do at whatever actively the military were carrying on at that time. So, there's a comparable situation about many of the various activities, although it might not be identical. During this period in Colonial Virginia which was of course prior to the revolution, the British, the women with the British troops were subject to court-martial and court-martial was imposed upon them. There's also a description of a large contingent of intended brides -- brides who were shipped from England to Jamestown in 1619, and thereafter, became related to the military force that was there, and they were subject to the military authority in peacetime as well as during the Indian hostilities. And in both -- in 1620, in both Colonial Virginia and Provincial Maryland, the women were subject to court-martial. There was no civil government in a modern sense in those two places during that period of time.
Hugo L. Black: Was that -- those as assumed on the basis that Great Britain was occupied in this country like when the country occupies another and for a time always, the military runs it.
J. Lee Rankin: Well --
Hugo L. Black: They promulgate the laws and to enforce them.
J. Lee Rankin: It depends upon how you look our history, I think, as to whether we were occupied at that time. The British were holding out that we were --
Hugo L. Black: The Jamestown, I'm talking about. You talked about Jamestown --
J. Lee Rankin: At 1620.
Hugo L. Black: Yes.
J. Lee Rankin: Yes, during that very early period, although we were -- it was supposed to be colonization then and not in occupancy. And they were supposed to be trying to establish a colony on behalf of the British Government so that it -- this -- we were supposed to be interested in having a government established in the part of the British Commonwealth rather than trying to creed us as an occupied area that they would dominate and -- like they had conquered us. I think there's --
Hugo L. Black: There's a chaos at that time because of the Indians.
J. Lee Rankin: Well, [laughs] the Indians and as soon as they got --
Hugo L. Black: They occupied the country, Great Britain did and they occupied it with the military first, didn't they?
J. Lee Rankin: Well --
Hugo L. Black: In order to move in.
J. Lee Rankin: I don't want to engage in semantics --
Hugo L. Black: I -- I'm maybe wrong, I'm not talking about semantics. I suppose that -- what I was pointing out was that there is a well-recognized differences in that, between the laws of a -- the way you enforce laws in an occupied country, pending as you said, at the time of incorporation.
J. Lee Rankin: There's no question about that.
Hugo L. Black: Yes. The only thing I had difficult with, Mr. Justice, was whether -- whether that stage changed and I'm not sure of my history note, say in 1620, whether there was enough for the colony establish so that it was supposed to be a governmental operation or not. Certainly, there were not civil courts which might lead it to be considered occupied.
Hugo L. Black: The leader was Captain Smith, wasn't he?