Warren E. Burger: We will hear arguments next in Number 1500, Massachusetts against the United States. Mr. O'Malley, you may proceed whenever you are ready.
Terence P. O'Malley: Mr. Chief Justice and May it please the court. This court has granted the petition of Commonwealth of Massachusetts to issue a writ of certiorari to the United States, Court of Appeals for the First Circuit. The basic issue raised on review concerns the constitutionality of applying the Federal Excise Tax on the use of civil Aircraft to a state police helicopter owned by the Commonwealth of Massachusetts and use exclusively for public safety purposes. The action was initiated by the Commonwealth of Massachusetts in the United States, District Court of the District of Massachusetts on a petition to refund of the tax. The tax computed is computed by $25 flat fee plus a varying amount based on the weight of the aircraft. The tax was $131.43 for the taxable year ended June 30th 1971. The total collected by a levy on funds of a Commonwealth was $183.38. The Commonwealth alleged in its --
Speaker: That was before and not the --
Terence P. O'Malley: For this taxable year, Your Honor, that's not an accurate indicate of how much money would be involved in the years between now and then.
Warren E. Burger: How many aircrafts does the state --
Terence P. O'Malley: The State Police has one, the State Aeronautics Commission has three and there is large bill pending for those aircraft also. But it's not --it hasn't been litigated, it's in abance pending disposition of this case.
Potter Stewart: Also there is what --
Terence P. O'Malley: Other aircraft owned by the Massachusetts Aeronautics Commission and there are tax bills in abance of a much larger figure than the $180. Talking about strictly for this year 1971. Commonwealth alleged that the helicopter was used by the State Police only for public safety purposes such as promoting highway safety and conducting searches for suspected criminals or escapees from correctional facilities. The United States moved to dismiss the complaint, prepared a state acclaimed on which relief could be granted. The District court allowed the motion stating that the decisions of this court talking about state immunity from federal taxation were essentially of historical interest only. And the court also stated that this is a classic case of a user fee. That rationale was based on the fact that the revenue derived from these aircraft taxes is used to make grants to state-owned airports or airport expansion and development. On appeal the United States Court of Appeals affirmed the judgment of the District Court but only discussed the user fee rationale. That rationale was based largely on an analogy, the team concerning cases of this court which upheld forfeit fees by municipalities as not in violation of the constitutional prohibition against duties on tonnage. Commonwealth petitioned this court to certiorari. The Solicitor General agreed that the case should be resolved because there was a decision by a federal court in Georgia which has sustained the immunity of Georgia from this particular tax. The essential position of the Commonwealth, that this particular tax violates the constitutional principle of intergovernmental tax immunity. The basic defense of the United States is that this tax is also a users fee and therefore exempt from the principal. The Commonwealth view the argument will be broken down in to three basic parts. First of all that there is no exception to the principle of intergovernmental tax immunity for taxes which are also designated, user fees. Second, that even if we discuss the user fee rationale, the taxing question even fails on those terms. Third, I would briefly discuss the implications of the case of National League of Cities v. Usery, concerning the position of the Commonwealth here.
William H. Rehnquist: Did the Court of Appeals ever address itself to the question of whether the general language of the statute meant that the tax should be applicable to state-owned vehicles.
Terence P. O'Malley: It was agreed by all that the Commonwealth does come within the definition because the definition concerns all aircrafts which are registered or must be registered with the FAA. This aircraft was registered and we believe must be registered with the FAA.
William H. Rehnquist: There is some language in some of our cases which is treated in part in the Fright case, which came out the other way I think that even though you have general language, sometimes you require more than that in order to apply a particular regulation or a tax to a state.
Terence P. O'Malley: There is also Legislative History, Your Honor, which explains why the exemption from the passage of tax, that used to exist for government employees, that's no longer in effect. And the Legislative History states that they think all aircrafts should pay their way for the use of the aircraft system. So that issue was never really raised and we do not contest the applicability of the tax as matter of statutory construction. The tax is clearly a tax irrespective of whether or not we also describe it as a users fee. As such it clearly comes within the scope of the principle as historically stated. First of all, there is a direct imposition on the funds of the Commonwealth of Massachusetts. Second of all even though the amount of the tax is not excessive in its direct terms, it's only $131 for this year. In all decisions concerning the principle of tax immunity whether it's federal immunity or state immunity the court has always stated that the amount is immaterial. The basic issue is whether or not there is a an infringement of sovereignty not whether or not the tax in question is excessive. It also is --
William H. Rehnquist: Now, Mr. O'Malley what if 120- 130 years ago, whenever it was a crucial, national issue, the federal government had build a toll road over the Appalachians and it charged everybody who was pulling a wagon over that toll road, whatever say a dollar. Do you think a state could have claimed immunity from that sort of a charge?
Terence P. O'Malley: No, we deny, Your Honor, if a particular charge is not a tax but strictly a fee, such as a toll, for the use of a particular road owned by the United States, we would not claim free usage of the road just as we do not claim as the government says, that we think we should be able to use mails for free. We have to buy the the stamps like everyone else.
Potter Stewart: Even though you are performing a sovereign function in the using.
Terence P. O'Malley: Yes Your Honor, the crux of the issue is that there is a direct imposition on the Commonwealth's funds for the general support of government rather than the individual act of a proprietor trying to get compensation for the use of it.
Warren E. Burger: And you defied with this if the wagons were carrying ammunition to Valley Forge.
Terence P. O'Malley: Well, if we proved the factual matter, there was a great infringement on the sovereignty because of the unique fact like that, I think may be that would be a separate case but as a general proposition, the proprietorship type fee, we do not challenge.
Warren E. Burger: You leave me a little confused there. But for some purposes the state, the federal government could make a use charge but for some purposes they could not. And on each of them, there are two sovereigns.
Terence P. O'Malley: If I may backtrack a bit, Your Honor, our basic position is that if it is a tax, and we don't think that the type of toll concerning the use of a road is a tax, I think your question you related to, if the imposition of the toll, somehow or another prevented that it really threatened the existence of a state or of a governmental entity, that would raise separate issues which we don't think are involved in --
Warren E. Burger: But usually tolls on toll roads are, if not always, dedicated an earmark to amortize the bond issue, that was the basis of building it. You don't have in this case I take it, a impounding of this use charge.
Terence P. O'Malley: The revenue derived from this charge does go in to a trust fund in the treasury And that money is used to make grants to the states for airport expansion and development. Now, the facilities are still owned by the states or their subdivisions and the money is used, however to further -- the tax here though is a tax on the use of a navigable airspace. It does not specifically geared to a particular use such as driving over a toll road and paying a one time charge for it. At some point these charges may -- the lines of distinction become fine ones but in this case it has never been contested that this is not really a tax, the only argument has been that it also has aspects of being a use of shape.
Warren E. Burger: And the federal government had spent hundreds of millions of dollars on river channels in order to make river navigation feasible. On your theory could they charge a state- owned barges for carrying tasks for the state?
Terence P. O'Malley: I do not think that could make a direct tax of the states because they happen to use -- have designated this particular revenue for river improvements, however, if on a one time basis, there is an agency that has a particular expense and has a charge against both, for the particular use and its clearly user's fee and it does not involve those sovereign issues such as the levying on funds of a state or exerting the power who even sees the facilities of a state, because they want to enforce this revenue contribution. The different considerations that --
Thurgood Marshall: Mr. O'Malley, wasn't it true that for years, the state official business didn't have to pay taxes on the plane tickets?
Terence P. O'Malley: Yes, Your Honor.
Thurgood Marshall: And now they do.
Terence P. O'Malley: Now, they do Your Honor.
Thurgood Marshall: Who is raising that change?
Terence P. O'Malley: The Legislative History --
Thurgood Marshall: Or is that by legislature?
Terence P. O'Malley: A legislature repealed the exemption for the employees and I think the tax here is quite different because at least it's user oriented in that case, Your Honor. There are a number of exceptions that are recognized in the immunity principle, so that there is no question about the federal power raised revenue being unduly interfered with. In other words, the states have to be engaging in the sovereign function and they cannot immunize contract as all of the employees from incidental federal taxes. These type of considerations have often been recognized but the fact is that no other exception has ever been recognized for taxes such as this, where the government claims, they have a particular use if they want to make for this particular revenue. The sole argument that the government seems to make is that this court should analagyse this tax with taxes that are enacted from interstate carriers or even state highways. We consider the questions involved in an undue burden of interstate commerce issue quite different from the sovereignty issues raised in the tax immunity argument. The interstate commerce burden question necessarily involves a question of degree. The relative judgments have to be made but in terms of the constitutional principle involving the status of the states under the constitution, questions of degree do not illuminate whether or not there is actually an infringement in the constitutional sense. But even when reference is made to the user fee argument, there are two aspect that the Commonwealth wishes to raise. First of all, this case was decided on a motion to dismiss. In the first instance, whether or not there has been an approximate benefit relative to the amount of the tax would raise the factual question which probably would have to require a hearing but more importantly, we think the failure of the user fee to even qualify as such in this case indicates that this type of innovation is unworthy in the tax immunity area because even though different difficult factual issues will be raised, they do not illuminate the questions of sovereignty that are involved here that are not involved in cases where you have an interstate carrier claiming that their activities are being unduly burdened.
John Paul Stevens: Mr. O'Malley, with regard just to your first argument, is it your position that even if it were a user fee, in which the charge was related to the amount of usage of the air system that the state aircraft did use that would still be invalid.
Terence P. O'Malley: Yes, when they use it in the form of a tax. If there is another way to exact an administrative charge and it's based on a voluntary participation in a particular program or use of a particular road then --
John Paul Stevens: But if that is your position why don't you challenge -- and apparently the state has not challenged the tax on airline tickets by state employees.
Terence P. O'Malley: We have not Your Honor, there is question there whether or not the incidence of the tax is actually on the Commonwealth of the state or on the particular employees who then may or may not get reimbursed by the government. Well there is that separate issue there, there is no question here but that the internal revenue agents, in this case levied on funds of the Commonwealth quite directly.
Warren E. Burger: Surely some of the Massachusetts travelers are reimbursed by the state, are you suggesting that it was a demeanor or something?
Terence P. O'Malley: No, Your Honor, I think it is more analogous to the cases where the salaries of government employees that once considered immune from federal taxation but that particular aspect of the doctrine is since been discarded because -- just because the state has to perhaps make up the difference in order to supply a wage and cover that tax, the connection between the state and the imposition of the taxes was more remote and do not justify the protection that they thought the constitution required. The formula in this case only involved weight, there was no formula which speaks of the amount of the use of the system concerning the amount of a tax, but even when you get beyond the formula and you look to the result, the user fee is not proved to be a rough accommodation, approximation of the amount of use of a system. The Secretary of Transportation was required by Congress in this Act to make a cost allocation study concerning whether or not these charges were actually geared to in any way, the use of a system. The secretary's findings are clear that the amount of the tax is not related to the use of the system. Now, this is a report filed by the federal official chart with the regulation of the airways and it should be given considerable weight by this court and should also be an indication that getting into this type of problem in the sovereignty area is not a productive one because it in no way illuminates what we consider to be the basic question of power rather than the question of degree. Finally, the United States really does not address the failure of this particular tax to work out as a rough approximation of the use of a system. Rather it makes a comparison that the Commonwealth in this particular year involved did receive $1.5 million in grants for airport expansion and development and then compute it with the amount of the tax. We think this is clearly indicative of why it would not be appropriate to use the user fee issue in the tax immunity area. First of all, the amount awarded was pursuant to a Matching Grant Program. These are the type of programs that are often used in Federal state areas such as welfare and education. They have programs of co-operative federalism. The United States states does not mention, first of all, they don't mention that this is a Matching Grant Program and second of all they do not mention the amount that the Commonwealth supplied in programs of this nature. If necessary, the Commonwealth would prove that the Commonwealth supplied $346,000 to meet the grants made by the federal government. Now, if this figure are degree of matching grant is not satisfactory, then Congress would be free to change the formulas so that the state had to supply more money. But at least it would be done on a voluntary cooperative federal state basis and it would not require the unilateral and potentially cohesive measure such as the tax and measuring question here. And finally in the cases involving the use of the highways and their requirement to pay their way in interstate commerce, the court has always been satisfied that the highways were provided by the states and the states were really just demanding compensation for the use of the highways, and if the state was really in a proprietary capacity for the most part in making the charge. In this case the tax is on the use of the navigable airspace. The federal government does not own the airspace and even when reference is made to the airport facilities, there are still state based facilities that is either owned by the state or the political subdivisions and in some cases these facilities may or may not receive federal funding. This indicates how we have difficulty in approximating the amount of use with the amount of a tax, the difficulty also added in this case is that we are not even sure what the use of what facility is being compensated for, by levying a tax on the use of a navigable air space.
Lewis F. Powell, Jr.: But the air controller federal employees, --
Terence P. O'Malley: Pardon me Your Honor.
Lewis F. Powell, Jr.: Aren't the controllers at the airports federal employee?
Terence P. O'Malley: There are federal employees involved at airports but the airport facilities themselves apart from the National Airport and Dallas Airport are not federally owned facilities.
Byron R. White: There is a lot of federal money in them though, I take it.
Terence P. O'Malley: Yes Your Honor, generally they do participate in the programs but also to be noted Your Honor is that there are limitations as to what part of the facility these funds are available for. For example, they don't give money for the use of terminal facilities. It's mostly directed towards the actual airport side.
Byron R. White: Whose communications facilities are they? Between airport and aircraft?
Terence P. O'Malley: As I understand it, the grants here are made to the states to provide the facilities.
Byron R. White: But they are federal funds, I think on the communication,
Terence P. O'Malley: Yes there federal funds involved in these programs and again there are matching funds to varying extents under the statute.
Byron R. White: And Federal regulation, the frequencies used.
Terence P. O'Malley: There is a considerable federal regulation --
Byron R. White: Management of the frequencies used.
Terence P. O'Malley: In terms of the rules enacted by the Federal Aviation Administration with some Federal Aviation Administration personnel involved in implementing the measure on.
Lewis F. Powell, Jr.: The navigational aids controlled by airways all across the country are federal, aren't they?
Terence P. O'Malley: Well, some of them, I don't think so, Your Honor, I think some of the facilities and the equipment is provided by the grants of the nature involved here but that the states are involved in it. May be --
Lewis F. Powell, Jr.: The traffic is controlled interstate basis.
Terence P. O'Malley: There may be a subdivision of the various facilities that would only be --
Lewis F. Powell, Jr.: The record in this case contain any information.
Terence P. O'Malley: No Your Honors, it was decided strictly on the basis of the motion to dismiss and the user fee rationale is actually evolved. In this case, it's gone along rather than something that was clearly understood at the beginning.
Thurgood Marshall: You do not want to convince me there that the state controls the traffic from one side of this country to the other.
Terence P. O'Malley: Certainly not Your Honor.
Warren E. Burger: Then the problem is that--
Thurgood Marshall: It is definitely regulated by the federal government. But the--
Thurgood Marshall: It is not the federal government, it is the air force.
Terence P. O'Malley: Air force?
Thurgood Marshall: It is not the Air force, it is NASA. Its anything that is far away from state as you can get.
Terence P. O'Malley: We are talking about the commercial aircrafts in general aviation.
Thurgood Marshall: All aviations is controlled by the federal government.
Terence P. O'Malley: In one form or another, yes Your Honor.
John Paul Stevens: Mr. O'Malley it is true though, isn't that this helicopter involved in this case, helicopter could take off from the roof of the hospital say, fly around and land, never talk to anybody on the radio, never use any federal facility and still have to pay the tax.
Terence P. O'Malley: Certainly Your Honor , the tax is on --
John Paul Stevens: The same tax is there if it spent $100, 000 during the year using all the facility, precisely the same tax. Would it?
Terence P. O'Malley: It would be based solely on the weight of the aircraft and it has nothing to do with the use. A helicopter by a chance would use these facilities less that an airplane would because of its maneuverability. The costly feature involved in making these grants is concerning the terminal airspace.
John Paul Stevens: And the helicopter could take off and land without talking to any federal employee, couldn't it?
Terence P. O'Malley: Certainly could Your Honor and very often it does.
Lewis F. Powell, Jr.: Is your submission limited to helicopters?
Terence P. O'Malley: I don't think this case should turn of helicopter but it is strictly a state aircraft use for public safety purposes and if the aircraft did use the -- if it were the argument would not differ Your Honor.
Warren E. Burger: What are your arrangements on the automobiles? Any of them subject to any tax?
Terence P. O'Malley: The fuel tax, if there's an exemption on the fuel tax for the state crude because I don't believe there's any other federal tax involved and the state does not tax its own property in that fashion. The final point is that while most of the discussion of the tax immunity is contained in older cases and perhaps considered by man to be just an old historical doctrine, we believe that the court's recent decision in the National League of Cities v. Usery dramatically shows of the concepts of a state sovereignty that are at the very core of the complaint raised in this case are still very much alive, in that case the court was concerned with the exercise of the commerce clause power but I think the court implicitly, if not explicitly, recognized the continuing vitality of this constitutional principle and was clear to state that were not going to resolve a case on a particularized assessment of impact. The particular federal statute was declared unconstitutional because this fine would fringe upon the essential role of a states in our union and we think that this case requires similar treatment. Therefore, we think the judgment of the Court of Appeal should be reversed.
Warren E. Burger: Mr Ryan.
Allan A. Ryan, Jr.: Mr. Chief Justice Burger, May it please the court. In 1970, Congress enacted a law entitled an Act to provide for an expansion and improvement of the nation's airport and airways system and for the imposition of the airport and airway user charges. This Act was divided into two titles. Title 1, the Airport and Airway Development Act authorized the Secretary of Transportation, to spend a great deal of money to improve the nation's airports and the services which make air travel safe, services such as air traffic control, communication and navigation aids. Title 2, the Airport and Airway Revenue Act imposed or increased charges on those who use the nation's airports and such supporting services. One of those charges is that a issue here, a charge or tax on the use of any taxable civil aircraft of $25 per year or plus a few cents propound. Title 2 also established a Trust Fund to ensure that the funds raised by the charges in Title 2 would help pay for the improvements required by Title 1. The issue in this case is whether the Commonwealth of Massachusetts which uses the services made possible by Title 1, every time its helicopter lifts off the pad must pay its share of the cost imposed by Title 2.
William H. Rehnquist: You say the helicopter uses the services made possible by Title 1 every time the helicopter lifts off the pad, do you disagree with your opponent's response to Mr. Justice Steven's question?
Allan A. Ryan, Jr.: I do although, I think that -- strictly speaking as a factual matter it's not reflected by this record. I make that statement because I think that something that -- Can be presumed and to that extent I do disagree. I think it is physically possible as Mr. Justice Stevens perhaps was suggesting, that a helicopter could take off from a hospital --
John Paul Stevens: I am saying lawfully there is no legal limit on the take off from uncontrolled airport, you don't have to talk to anyone?
Allan A. Ryan, Jr.: Not in the taking off process I don't believe Mr. Justice.
John Paul Stevens: Neither in landing nor in flying.
Speaker: You are being interrogated by an expert.
Allan A. Ryan, Jr.: Well, I am not an expert.
John Paul Stevens: I can assure you, I have done it. Let me ask you this. Does your legal position depend on as a factual matter, the plane actually making use of any federal communication facility?
Allan A. Ryan, Jr.: No it does not, not strictly speaking. And if you tell me that this helicopter can take off and fly over a Logan Airport.
John Paul Stevens: No, on the Logan airport it can not but there are many areas on the State of Massachusetts which are uncontrolled their space in which an aircraft can fly without talking to anyone. It can take off from uncontrolled fields and land on uncontrolled fields. The tax applies to those planes.
Allan A. Ryan, Jr.: Yes it does. I would suggest this Mr. Justice Stevens that if it did so, if it took off and landed on an uncontrolled airfield and flipped off all its switches and talked to nobody, if it was involved in a mid-air collision with a private plane heading say from Connecticut to New Hampshire and if it were found that that private plane had the right of way and the helicopter had it been listening, would have been told to drop down a thousand feet, the Commonwealth would certainly be in no position to say that the collision was not its fault. In other words, if it disregards those federal services, it does so at its peril. And I think that --
Thurgood Marshall: It is not in this case is it?
Allan A. Ryan, Jr.: Well, I think it --
Thurgood Marshall: I understood from the State of Massachusetts that they had to pay regardless of whether they took off from the hospital or Logan Airport or any place.
Speaker: Or ever took off --
Thurgood Marshall: Or ever took off --
Allan A. Ryan, Jr.: Well, I would agree with the former but not the latter. There is no tax on the possession of the aircraft. If it is simply possessed on the ground all year long, there is no tax. If it takes off once or if it takes off 365 times during the year, it's the same tax.
Speaker: But the facilities are there for its use.
Allan A. Ryan, Jr.: Absolutely . And I think as a practical matter, although even if this helicopter may not use federal services on one trip or another one, over the course of the year, I think it is certainly reasonable to expect that they will almost --
Warren E. Burger: Then what I wish to make is your legal position, as I understand it, does not depend on the aircraft actually making use of anything that the federal government spends money for.
Allan A. Ryan, Jr.: That's correct ,it does not.
Speaker: But does it depend on the fact that the facilities are available?
Allan A. Ryan, Jr.: The facilities are there. It is --
Speaker: Which it may use.
Allan A. Ryan, Jr.: Which it may use, and which it provided at federal expense through the imposition of this tax in Title 2.
William H. Rehnquist: Well, could the Federal government open a store up in Boston, kind of a PX type store would have price items and tax the State of Massachusetts for the privilege of using the store even though it decided never to use it?
Allan A. Ryan, Jr.: In that situation, I think we are somewhat -- we are not in the same position we are here. I think, let me refer this another tax that was passed as part of this Airway Development Act which imposed an excise tax on aviation fuels of so much per gallon. Now, Congress in its wisdom exempted the states from payment of that tax. But I think that is the corollary there that perhaps shows that this is closely tied to use that the $25 or the $130 charge is there on one time basis, and it is there to defray the costs of administering the Federal Aviation Act and maintaining the navigability of the airspace. The aviation fuels charge is there to precisely calibrate the payment of taxes by the amount of hours or miles flown.
Thurgood Marshall: Not that it matters. Would you get more money to pay excise tax on, the gasolines.
Allan A. Ryan, Jr.: I assume that the government would. I think that the reason that was --
Thurgood Marshall: That is up to them I mean,--
Allan A. Ryan, Jr.: That is up to the Congress responding to whatever political forces it feels.
John Paul Stevens: Well, Mr. Ryan, can I test your theory with another question? Supposing the situation were reversed. Now let's say the state of Virginia puts money in its airports and supposing it imposed a $25 tax on every aircraft that landed at any one of the -- That was based at any one of the airfields in the state, as a user charge, it is the same theory as you have here. And the FBI on the plane that was flying out one of those airplanes, does the State of Virginia tax United States for the ownership of that plane?
Allan A. Ryan, Jr.: I believe so. We think that the theory of Packet Co. v. Keokuk in the head money cases and Clyde Mallory Lines stand for the proposition that user charges are not taxes or more precisely they are subject to the same restraints that the constitution --.
John Paul Stevens: Would it be so, they did not have a Trust Fund?
Allan A. Ryan, Jr.: If it still could be considered a user charge, we think that Trust Fund here is evidence or proof that this is truly a user charge. In the absence of a Trust Fund, I think you could still find a user charge and in fact I think in the Montanic trucking case which we cite in our brief, this court did.
John Paul Stevens: And so one time annual measured, suppose if they measure it on the value of the aircraft instead of the weight of the aircraft, could they do that?
Allan A. Ryan, Jr.: It makes no difference.
John Paul Stevens: So, in other words the State of Virginia could impose a personal property tax on the United States?
Allan A. Ryan, Jr.: Well, if it was a user charge, regardless of what they call it, whether they call personal property tax or anything else, if the --
John Paul Stevens: It is explained in the Legislative History, the reason is to help pay for airports and will only tax airplanes that land or based at Virginia.
Allan A. Ryan, Jr.: I think that would be so. You run into a problem of course, with the Supremacy clause. The traditional genesis of intergovernmental immunity that it does not work both ways.
John Paul Stevens: If you can call it a user charge why would not it work both ways. That's really what I was trying to figure out.
Allan A. Ryan, Jr.: Well, if it is a user charge --
John Paul Stevens: And that can be a user charge, it is just the tax based on the value of the aircraft as long it just lands at a state-owned facility on the one case or uses the federal facility in the other case.
Allan A. Ryan, Jr.: I think that would be actual use of state powers.
Thurgood Marshall: Well, we have a big military convoy fully loaded and armed and stuff to pay toll, what would happen? You would weigh it wouldn't you? It happened several times on a World War II.
Allan A. Ryan, Jr.: If it was asked to pay a toll on Massachusetts toll booth --
Thurgood Marshall: One what the judge (Inaudible) here.
Allan A. Ryan, Jr.: I am informed and we thought we might get it, and including this area, the federal military convoys do pay state highway tolls.
Thurgood Marshall: Not all do that.
Allan A. Ryan, Jr.: It is the policy.
Thurgood Marshall: I had a court-martial involvement throughout --
Allan A. Ryan, Jr.: May be that is why it is not a policy.
Warren E. Burger: Do you think there is a difference because of the toll fees are explicitly impounded for the purpose of discharging the bonds issued to build the road and situation presented by this case?
Allan A. Ryan, Jr.: I think the question is, is it a user charge ;or is it not? I think the --
Warren E. Burger: My question is broader than that.
Allan A. Ryan, Jr.: Yes I realize that. I think your question goes to --
Warren E. Burger: Are you going to make them pay the capital costs, that is what the toll roads do. The toll charged on a toll road is to pay the capital cost of building the road. You are not dealing with the capital cost here precisely, are you?
Allan A. Ryan, Jr.: Well, I think it is not entirely a capital cost but it is certainly to the extent that the Act finances the building of airports and air facilities, to that extent it is a capital cost. The Act is quite explicit and that it says the expenses in the Trust Fund go to improving and operating and maintaining as well as establishing.
William H. Rehnquist: What is it that the government owns that is being charged for the use of here?
Allan A. Ryan, Jr.: It regulates the navigable air space of the United States.
William H. Rehnquist: I know that.
Allan A. Ryan, Jr.: In terms of what it owns in a proprietary sense, nothing.
William H. Rehnquist: Nothing.
Allan A. Ryan, Jr.: I think, once you accept the proposition that this is a user charge, the doctrine of intergovernmental immunity simply need not be faced. That was the rationale of the Court of Appeals, and we think that this court can affirm on the same rationale, however if the court feels it necessary or desirable to face that question, we think that it need go no further than to reaffirm the case of New York v. United States, and we believe that an affirmance on that ground would still result in an affirmance of the judgment of the Court of Appeals. We still uphold the tax. The case of New York v. United States as this court is aware was decided without a majority of the court as such. Well, Chief Justice Stone's opinion can be read as the opinion of the court.
Potter Stewart: Is that the mineral water case?
Allan A. Ryan, Jr.: Yes Sir it was. The tax involved there was a federal tax on mineral waters which New York sold from its springs at Saratoga. The State of New York contended that it was disposing of its natural resources and in a classic case of exercising its sovereign functions and this court did not disagree, but the test that Chief Justice Stone formulated in that opinion was whether a tax even though non-discriminatory ?May nevertheless so affect the state merely because it is a state that is being taxed as to interfere unduly with the state's performance of its sovereign functions of government? Chief Justice Stone, it should be added, voted to sustain the tax and the tax was sustained. As I understand, the Commonwealth's case, they are essentially relying on this statement by Mr. Chief Justice Stone, but there is no evidence in this case nor is there any claim as to what that evidence might be, as to how this tax unduly interferes with Massachusetts performance of its sovereign function. We think the reason for that is that it does not interfere at all. Massachusetts in its complaint which is taken as true for present purposes simply made no allegation, nor do I understand the Commonwealth to make any allegation in their brief now that this tax interferes with the performance of their sovereign duties.
John Paul Stevens: Mr. Ryan can I just ask two other questions. Suppose by analogy, the United States decided to propose the tax on the use of the interstate highway system that could charge a flat sum for all vehicles including state-owned vehicles. All the water systems, boats owned by the states, I mean, that same sort of thing could be done, couldn't it?
Allan A. Ryan, Jr.: Yes, Mr. Justice Stevens, that falls.
John Paul Stevens: Right.
Allan A. Ryan, Jr.: I understood the Commonwealth, my brother Mr. O'Malley to take the position in his opening statement that legitimate user fee such as for toll road or river tolls, so forth are not within the scope of governmental immunity and the Commonwealth would not be immune from paying those tolls but here he said it's different because it is a tax and it is not something that is voluntarily paid by Commonwealth of Massachusetts, once of course, they decide to buy a helicopter. I would infer from what he says that a toll or tax or a duty or levy or whatever it's labeled of a dollar per hour would not be objectionable to the Commonwealth of Massachusetts or to take a more concrete example that Massachusetts would see no problem with the fuel tax of so many cents per gallon being imposed on it because that is a very closely correlated tax, correlating the amount paid to use. So, I think that given that view of the facts by the Commonwealth to then turn around and say, well, this is levied directly against the state and therefore comes in under the intergovernmental immunities doctrine whatever present status of that doctrine may be, is an elevation of form of nicety over the facts of the case. That the airspace is there, the facilities are there, as a practical matter they are used. I think that can safely be said. And this is nothing more than the federal governments seeking too fairly and equitably charge those users whether they be an individual, or corporation, or national government or a state government for the use of those facilities. Saying it in that way I think requires that the judgment of the District court and the Court of Appeals be affirmed.
Warren E. Burger: Does this record show or do you know what's the total amount of revenue that the federal government achieves under this program over the whole country.
Allan A. Ryan, Jr.: The record doesn't show it, I don't know it.
Warren E. Burger: But very much money I suspect, is it? It is not a great sum of money in the todays fiscal arrangements between states and federal government.
Allan A. Ryan, Jr.: The amount of tax raised by imposing the tax on state governments.
Warren E. Burger: Total.
Allan A. Ryan, Jr.: I assume it is small Mr. Chief Justice. The Act authorizes well over a billion dollars to be spent for the improvements in Title 1 but that of course is gathered from all sources and I don't know how that's broken down in terms of what the different states pay.
Potter Stewart: Your brother Mr. O'Malley mentioned National League of Cities, I think have you?
Allan A. Ryan, Jr.: I have not mentioned it Mr. Justice Stewart.
Potter Stewart: I suppose there was reason why you didn't feel that was relevant.
Allan A. Ryan, Jr.: I didn't mention it because I think it is not a part of this case. I thank the court.
Warren E. Burger: Anything further Mr. O'Malley. Thank you gentlemen. The case is submitted.


Earl Warren: Defendants [Inaudible] for the purpose of the next case to be summed by next [Inaudible] of petition number 133, Daniel Alton Williams, Petitioner, versus Eugene M. Zuckert, Secretary of the Air Force. Mr. Shapiro.
David I. Shapiro: May it please the Court. The issue in this case is whether an employee with veterans’ preference status can be denied an opportunity to confront and cross-examine his accusers in a proceeding before the Civil Service Commission challenging his removal from federal employment. The employing agency, in this case, the Air Force, admitted that the witnesses to petitioner's alleged misconduct were all airmen, on active duty and subject to which military control, yet it refused to produce them before the Civil Service Commission because if the Air Force unilaterally concluded that their testimony would not have aided the petitioner's test. Now, court below held that the failure of the Air Force to produce these witnesses did not violate petitioner's statutory or procedural rights, one of the facts. The petitioner was a veteran with 16 years government service, was employed as a recreational supervisor at the Air Force Academy. On March 19, 1959, he was suspended from employment on grounds that he had attempted to make homosexual assaults upon three airmen and it willfully damaged a government type.
Potter Stewart: He was a civilian employee?
David I. Shapiro: Yes sir he was.
Potter Stewart: Although he had been in military, it's in the Air Force?
David I. Shapiro: That's correct.
Potter Stewart: In military.
David I. Shapiro: Yes. Now, two of the attempted assaults were alleged to have occurred while the petitioner was on active duty with the Air Force, approximately a year and two years before. The third attempt was alleged to have occurred while he was employed in a civilian capacity at the Air Force Academy. Now, prior to his removal, the petitioner was notified that he could answer the charges against him personally and in writing. However, since he had been prohibited the day before from entering the academy grounds on pane of arrest, he did not avail himself of his so-called “opportunity” to answer the charges in person, but did so in writing instead. Now he was, after he replied in writing, discharged from his position with the Air Force on April 12, 1959. He then appealed to the Civil Service Commission under Section 14 of Veterans Preference Act. On May 5, 1959, the Tenth Civil Service Region held a hearing to take evidence of petitioner's misconduct. Now at the outset of the hearing, the petitioner requested the Department of the Air Force for an opportunity to interrogate three airmen, two of them were alleged victims of this homosexual attempts and who were stationed at the Air Force academy but this requests were rejected. The Air Force submitted its evidence against the petitioner in affidavit form and while admitting its ability to produce all three airmen, it declined to do so on the grounds at the hearing that the Air Force Academy saw no need for their attendance, it did not consider that they would be able to add anything to the case. They later explained this by saying that if they had appeared, the testimony that they would've offer on cross-examination would even been more damaging to the petitioner.
Potter Stewart: To who is which -- who is the third? You told us that two of the witnesses --
David I. Shapiro: The third one apparently was an individual who was present there. There is some confusion in the record. They were actually two of these airmen who were the accusing witnesses that he requested. The third was apparently an individual, another airman who was present during one of the occurrences and I think the government states that fact correctly in its brief with regard to that airman. Now, as I said, the Tenth Civil Service Region upheld the refusal of the Air Force to produce the airmen and despite the petitioner's denial of the assaults which included an attack on the credibility of these accusers, the conflicts and evidence according to the Tenth Civil Service Region were resolved in favor of the Air Force and petitioner's removal from the stand. The petitioner appealed to the Board of Appeals and Review of the Civil Service Commission which affirmed the regional director's decision on his rationale. On June 6, 1960, the petitioner filed the complaint in United States District Court on cross motion for summary judgment. The District Court dismissed the complaint. On November 9, 1961, the Court of Appeals affirmed. Now, we contend that where the issue on a veteran's appeal to the Commission turns in part on the credibility of the witnesses against him and the agency admits command and control of those witnesses, Section 14 of the Veterans Preference Act and the applicable Civil Service regulations do not authorize the agency to refuse to produce such witnesses at the hearing, but to rely in their affidavits instead. Section 14 of the Veterans Preference Act of 1944, although it's modeled on Section 6 in the Lloyd-La Follette Act of 1912, was designed to provide special and additional preferences for war veterans. That statute eliminated the Lloyd-La Follette provision making cross-examination of witnesses, trial or a hearing a matter for the discretion of the removing officer and substituted in its place an appeal to the Civil Service Commission with the right to make an appearance either personally or by representative. And here's the provision which was excluded from the Veterans Preference Act and is contained in the Lloyd-La Follette Act, “No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer directing the removal or suspension.” As I say, that was specifically eliminated from the Veterans Preference Act and in its place was substituted the appeal provisions of the Civil Service Commission. Now, the legislative history in the 78th Congress is virtually silent as to the meaning of Section 14 appeal provision, but the legislative history of that provision in both the 75th and 76th Congresses demonstrates, we think, that it was designed to provide a trial type hearing on the appeal to the Commission. Legislative representative of the veterans of foreign wars testified in 1937 and pretty much the same way again in 1939 that, “The purpose of that Section referring to what became Section 14 as apparent is to prevent any man from being let out without good cause shown and he would be let out only after a proper hearing.” It would protect veteran from being discharged for shall I say personal reasons and on the other hand it will not absolutely prohibit a supervisory officer from discharging a man for cause, but it does give the veteran an opportunity to defend himself by trial. Now Your Honors, almost immediately after 14 of the Veterans Preference Act was enacted, the Civil Service Commission adopted regulations governing employee appeals. These regulations, which are substantially the same now as when the first issued, provide pretty much as follows. First, the employee has a right to appear at the hearing on his appeal. The agency has a right to participate in such hearing and both parties shall have the right to produce witnesses, that's 22601. Two, opportunity will be afforded for the introduction of evidence, including testimony and statements by the employee and witnesses and by representatives of the agency and its witnesses and for the cross-examination of witness, that's 22603.
Speaker: [Inaudible]
David I. Shapiro: Yes sir, they were. Third, the testimony at hearing shall be uninterrupted. Now the court below following its earlier decision in the Luévano against Campbell concluded despite these regulations that in as much as 22607 of the Commission's regulations provided that the Commission is not authorized to subpoena witnesses and that the employee and the agency must make their own arrangements for the appearance of witnesses, the failure of the Air Force to produce its witnesses at the hearing in no way violated the petitioner's rights. Now, we say that this interpretation of 22607 is erroneous. We say that that section has to be read together with 22601 which provides that both the employee and the agency shall have the right to participate in a hearing and that both parties shall have the right to produce witnesses. When so read, we say that 22607 means that since the Commission is not authorized to subpoena witnesses, the employee and the agency must make their own arrangements for the appearance of their own witnesses because otherwise, the regulations providing for cross-examination of witnesses and requiring that the testimony at the hearing should be under oath would be rendered meaningless and as a matter of fact, since the Luévano against Campbell they have it. Now, the government argues, first, that the Commission has always interpreted its regulations to mean that the employee has the burden of persuading the agency's witnesses to appear and testify against him first before being able and able under the regulations or entitled to cross-examine. And second, that Congress by reenacting the Veterans Preference Act in 1947 implicitly accepted and ratified this so-called interpretation and if the Court please, the only thing that Congress had before it in 1947 was the Commission's regulations and it was these regulations, the ones I've just quoted here, not the Commission's unreported administrative practice under them which Congress in 1947 implicitly accepted and ratified. Because in fact, the Commission's interpretation which the government can -- for which the government contends was an unknown prior to the 1952 decision in the Luévano against Campbell, which this Court declined to review on certiorari and which we say was wrongly decided. The Luévano rule makes Veterans appeal hearings before the Commission where both parties are granted the right under these regulations to produce witnesses, to introduce evidence, to cross-examine witnesses in a hearings where the employee submits his evidence by testifying under oath and subjecting himself to cross-examination. And the Government submits its witnesses by submitting affidavits and you cannot cross-examine an affidavit. Now, in practical effect, what has happened is that the employee's right of cross-examination specifically provided for in 22603 has been read out of the regulations entirely. I say employee has his right of cross-examination, but the government still retains its right of cross-examination.
Arthur J. Goldberg: [Inaudible]
David I. Shapiro: That is correct. Now, as a matter of fact, I think the reason for that was that he had hoped to make his case through the testimony of the witnesses that did not appear and that's why at the outset of the hearing he asked the Air Force to produce them.
Arthur J. Goldberg: [Inaudible]
David I. Shapiro: That's correct, sir. Now, --
Potter Stewart: But it wasn't indicated that these were to be produced as his witness. They were --
David I. Shapiro: No, sir. They were the government's witnesses that he had --
Potter Stewart: Whom he wanted to cross-examine?
David I. Shapiro: Yes sir. Now, the government suggests that this problem that we have here need never have come about and that in fact the witnesses might have appeared at the hearing if petitioner had only taken the trouble to ask them to appear. But this suggestion ignores Air Force regulation 110-5 which precludes the voluntary appearance of Air Force personnel at such hearings absent prior consent from the Air Force. The fact that the Air Force rejected the request of the petitioner that such witnesses be produced and the fact that these witnesses were stationed at the Air Force Academy and petitioner have been prohibited from entering the Academy's grounds. Now, the government attempts to make much of the fact that the Commission has no subpoena power and this of course is true, but Section 05.3 of the Commission's rules, that's 5 C.F.R.05.3, which unfortunately is not set forth in the briefs, specifically provides, “All officers and employees in the executive branch shall give to the Commission or its authorized representatives, all information and testimony in regard to matters inquired of arising under the laws, rules, and regulations administered by the Commission.”
Speaker: [Inaudible]
David I. Shapiro: 5 C.F.R., Section 05.3, in Vitarelli versus Seaton --
Speaker: [Inaudible]
David I. Shapiro: 5 C.F.R., Section 05.3 --
Speaker: [Inaudible]
David I. Shapiro: In Vitarelli the Interior Department had no subpoena power and no power equivalent to that's set forth in 05.3 of the Commission's rules. Yet, in that case, this Court construed a Department of Interior Order which gave the employee the right to cross-examine any witness offered in support of the charges as requiring the Interior Department to call as witnesses at the hearing, all so-called non-confidential informants who supplied information against the employee upon which the agency relied. Your Honors, we say that [Inaudible] is controlling in this case and that the decision below should be reversed.
John M. Harlan II: [Inaudible]
David I. Shapiro: I'm sorry sir, I didn't hear your question.
John M. Harlan II: Did any case come before or after?
David I. Shapiro: Before sir, 1952. Vitarelli was decided I believe in 1959.
Earl Warren: Mr. Pollak.
Stephen J. Pollak: Mr. Chief Justice, may it please the Court. Petitioner was a civilian employee of the Air Force employed as a recreation supervisor at the Air Force Academy in Colorado Springs. He was removed after proceedings before the Air Force and on appeal before the Civil Service Commission, proceedings which upheld the charges that he had committed homosexual assaults on three named airmen. These charges which are set forth at pages 16 and 17 of the record provided petitioner with the names, dates, and places of the alleged assaults. The subjects of the assaults, the accusers were known to the petitioner, but he did not call them to the hearings nor did the Air Force call them, the record consisted of affidavits. The issues in the Government's view here is not whether an employee can be denied an opportunity to confront and cross-examine his accusers for we believe there was no such denial here rather we believe the issue is whether a government employee under the Veterans Preference Act and the regulations must make his own arrangements for the appearance of witnesses whom he may wish to examine or cross-examine. We believe the regulations are clear, that this obligation was placed on the employee and more so had he done so that he would've been afforded his full rights of examination. We do not believe there is any basis in this record for a contention that the witnesses would not have agreed to appear or that the Air Force would've precluded their appearance.
John M. Harlan II: Well, may be I'm confused, wasn't the request made to the production of these witnesses?
Stephen J. Pollak: At the proceedings before the Civil Service Commission, the proceedings on appeal Mr. Justice Harlan at page 44 of the record, the attorney, the counsel for Mr. Williams asked the Air Force or one of the Air Force representatives at that proceeding, Mrs. Dillon, a personnel officer whether three named airmen were available for attendance at the hearing as witnesses and if so, why they had not been brought. Mrs. Dillon responded that the -- that two of the men were stationed at the Academy, Colorado Springs which was some 68 miles from the location of the hearing and that the Air Force saw no need for their presence and did not believe that they would be able to add anything and had not called them as its witnesses. We believe that this request here was a request that the Air Force produce these men as its affirmative case witnesses.
John M. Harlan II: And that's all there is --
Stephen J. Pollak: That's all there is.
John M. Harlan II: -- in the record?
Stephen J. Pollak: In our judgment, yes. Further, a review of the contentions before the Board of Appeals and Review, I believe indicates that that is petitioner's contention. Moreover, in a later response in the Board of Appeals and Review proceedings, the Air Force representative, the personnel officer stated that there was, and I'm quoting from page 85 of the record, “that there was no design or intent upon -- on the part of any official of the Air Force to preclude Mr. Williams from such opportunity” that is the cross-examination or having the witnesses. As I will indicate in the moment, the regulations are clear that each side is to make arrangements for its witnesses. These regulations are set forth in the appendix of the government's brief and the Air Force was proceeding on that basis.
John M. Harlan II: Well, is the government's position that if they requested the names and he wanted these witnesses to testify on cross-examination purposes it would – should have been granted, is that it?
Stephen J. Pollak: It is the government's position that he asked these witnesses to appear in accordance with the Air Force policy, the Air Force would've permitted and in fact assisted the witness to appear. I refer to the regulations which are in the appendix to the petition for certiorari, regulation 804.403, that is in the 32 C.F.R., Air Force Regulations which states that it is the policy of the Department of the Air Force to make official information available for use in litigation and to permit military and civilian personnel to testify concerning such information in its files if material and relevant to litigation. And that had the petitioner and his lawyer only addressed their request to these witnesses or a request to the Staff Judge Advocate who was located on the Air Force Academy grounds that in accordance for these regulations, the witnesses we have no way of knowing whether they would have agreed or disagreed, the individuals, but the Air Force would've permitted them to testify and I think in accordance with its policy would've encouraged them to do so.
Arthur J. Goldberg: Mr. Pollak, what is [Inaudible]
Stephen J. Pollak: Well, might I respond to that in two ways. First, counsel for Mr. Williams here has cited the regulation 05.3 and advised me yesterday that he would do so. In reviewing that regulation, I find that it does not apply to members of the military. Members of the military are excluded from that power of the Commission by a just immediately prior regulation 01.1 which states that the rules in this sub-chapter apply to all positions in the competitive service. So that I cannot respond to your question by saying that the Commission could have ordered their appearance under 05.3 because it does not have that power over members of the military. Whether the -- a request then to the examiner, Civil Service Examiner should have brought forth an order then whatever power it had that they appear, I'm not sure how it would develop since it's -- since none of these steps were taken. But certainly, had the witnesses refused to appear, had the attorney for Mr. Williams contacted the Air Force and asked the Air Force to urge them to appear, had he asked the examiner, none of these he did, had he asked the examiner to order the witnesses to appear, had he asked the examiner to strike the affidavit, if they did not appear, any one of those steps were open to this petitioner and he and his counsel did not take it.
Arthur J. Goldberg: [Inaudible]
Stephen J. Pollak: If --
Arthur J. Goldberg: [Inaudible]
Stephen J. Pollak: No. Well, Your Honor, this is a summary of the proceedings prepared by the examiner and given the counsel for each party and we can only read that in the light of what is here. And we read it to mean that the request was that the Air Force produce these witnesses as part of its affirmative live case and that that request was denied. We read it to mean that the petitioner wanted the Air Force to arrange for their appearance as its witnesses and we read no more into it. The complaint of the petitioner as indicated a little bit thereafter on pages 47 and 48 was that he had had no opportunity to cross-examine the witnesses on whose statement to the Air Force is relying on. I don't believe that he was contending that the Air Force was there refusing a request for him to call them as his witnesses by him. For example he made no objection to the proceedings taken place on affidavits. He did not suggest that the Air Force affidavits which were part of the record before the examiner that should be --
William J. Brennan, Jr.: (Voice Overlap) I must confess I didn't think there's [Inaudible] can I just sum up the word, what is the government's position, is it that -- is there any premise that he was entitled to have confrontation here or is it the government's position that he's not?
Stephen J. Pollak: It is the government's position that the regulations here afford cross-examination of witnesses to either party brings to the hearing and that had he asked these witnesses to appear and they appeared why certainly he is entitled to cross-examination.
William J. Brennan, Jr.: But -- is it the government's position that he followed the regulation and had not been able to get them to appear that the government had no obligation to produce witnesses.
Stephen J. Pollak: I think they -- I'm not certain that the government would be here and let me state this case. If you're suggesting that he had -- had he asked them to come that they refused and he addressed to request to the staff judge advocate that staff judge advocate concededly -- and let them to come with -- they were saying, well we can't come because the Air Force says no and had the Air Force declined to permit them.
William J. Brennan, Jr.: No, I'm not thinking to that. I gather what you just said is that there's a permission on that part of the witnesses to appear or not as the witnesses.
Stephen J. Pollak: Yes, which stems --
William J. Brennan, Jr.: (Voice Overlap)
Stephen J. Pollak: -- which stems from the lack of a subpoena.
William J. Brennan, Jr.: Alright, now, what I'm trying to get to in this, if that had happened here, there's been a proper request whatever regulations provide and nevertheless although the Air Force to believe that let them come you said no, I won't come, would the government then decide that you nevertheless have proceeded and dismiss him as he was dismissed without producing?
Stephen J. Pollak: On the basis of the affidavits of men who refused to appear and who could not be ordered.
William J. Brennan, Jr.: Yes.
Stephen J. Pollak: The regulation supports cross-examination of witnesses. I don't think that that would come within the regulation and I believe that would present a more serious question such as order of this Court based in Green and the McElroy or possibly in some of the considerations which were present in the Vitarelli.
William J. Brennan, Jr.: Well, am I --
Stephen J. Pollak: We don't think that question is presented here.
William J. Brennan, Jr.: Well, am I to infer then from your answer that so far as the government's concern the only question before us is did he or did not apparently he did not this -- to have to ask for those witnesses as the regulation said that he might be and if it's the fact that he did not although he might have under the regulations that are set forth.
Stephen J. Pollak: That is our position. I believe that is the case presented on this record. I --
Byron R. White: I thought you also want us to believe that the [Inaudible]
Stephen J. Pollak: That's right, sir.
Byron R. White: And that the government presented these by affidavit [Inaudible]
Stephen J. Pollak: Even though, that's right, that the government may present its case on affidavit and that he is not to direct his request to the government to present a live case but rather to bring the witnesses in and in accordance with the regulations which make this an informal proceeding where the rules of evidence are not strictly enforced where a verbatim transcript need not be necessary. He may cross-examine them, he may bring them in, call them and then proceed to cross-examine.
Byron R. White: And would you say that if he wants to look at the error, he should pass and arrange [Inaudible]
Stephen J. Pollak: That is -- yes, the --
John M. Harlan II: [Inaudible]
Stephen J. Pollak: That's right. The regulation provides and has provided since the Act was passed in 1944 and the regulations were issued in November of 1944 that the employee and his designated representative and the employing agency must make their own arrangements for the appearance of witnesses. And the interpretation of that regulation has been consistent that each side must if it wishes live witnesses it must bring them to the hearing.
Byron R. White: Did you ever had a perfect right for producing witnesses' affidavits and do not really find the man because [Inaudible] and it has the perfect right to give, to arrange the witnesses to this end where the employee [Inaudible]?
Stephen J. Pollak: That I believe you've correctly stated what our position is, yes and here, he did not do so as we read this record.
Byron R. White: And the case, you say, isn't here when he tries to go [Inaudible]
Stephen J. Pollak: The case that isn't here is where he tries to make his own arrangements and the witnesses themselves say, “No, we won't come --”
Byron R. White: Or the government --
Stephen J. Pollak: Or the government obstructs it, yes, and we state that had he only tried, the Air Force regulations would have required the Air Force to permit them to come and to assist in their coming.
John M. Harlan II: But you're not -- you're saying number one, as I get it, that the regulations don't give this man a right to require the government to call a witness for his own case, if they don't want to call.
Stephen J. Pollak: That's right.
John M. Harlan II: And you a fortiori not arguing that if it chooses to hear the affidavits that they then can't say, “Well, since we haven't produced any witness, we don't have to produce these fellows to the cross-examination.” You're not taking that position.
Stephen J. Pollak: No. This light went on and I -- if they only meant that I didn't (Voice Overlap) second question --
John M. Harlan II: Well, I guess my question is rhetorical so it's late, [Inaudible]
Stephen J. Pollak: I wanted to mention one other factor of proceeding. Following a proceeding before the Air Force which the petitioner chose not to make personal appearance, he was advised of his right to make an immediate appeal or to seek grievance proceedings before an Air Force grievance committee. He chose with counsel to take an immediate appeal to the Civil Service Commission and that is the proceeding which is the issue here. Had he chosen to go first to the grievance committee, the Air Force regulation which is cited in this letter advising him that he might seek provide that at that hearing, he might list witnesses whom he wish and that the Air Force grievance committee would order their appearance that had he availed himself of this right to seek grievance proceeding for the Air Force, the confrontation and cross-examination which he is complaining here or lack of it on the appeal would have been afforded in proceedings before the Air Force under Air Force regulations. These regulations appear in the Air Force Manual 40-1 of public regulation. We believe that here, the -- there -- we recognize there was no cross-examination or confrontation. What we believe is that it was the fault of the petitioner that had he sought to ask for these men to appear, had he sought to ask the examiner to give him a continuance to ask them, had he sought to ask that the affidavit to be struck for in any other way to avail himself of a right to cross-examination, it would've been procured or at least an issue farther from that which we're confronted here have been raised.
Earl Warren: [Inaudible]
Stephen J. Pollak: We believe, Mr. Chief Justice, we believe he did.
Earl Warren: I thought it was his counsel.
Stephen J. Pollak: Yes.
Earl Warren: So far as the examiner could not go on there and that they were in the academy.
Stephen J. Pollak: Mr. Chief Justice, counsel did make that -- take that position.
Earl Warren: Yes.
Stephen J. Pollak: In our view, these witnesses were certainly available to this man. He was represented by counsel and the Air Force Academy is an open base. Counsel on business could have proceeded to find the witnesses and asked them to appear. The petitioner had he not been avail himself of counsel, because he have, could have written, telephoned, telegraphed as indications that these men, the witnesses whom he was seeking, frequently went off the base, the record shows that these alleged incidents occurred off the base and for all the record shows they may have lived off of the base. We think that petitioner's right to access to these men was very clear. He had no difficulty for reaching them. Had he really wanted them a communication to the Staff Judge Advocate on the base from his lawyer, Mr. Williams' attorney would've -- we think had gone right through. There's no indication, in fact, there is a concession which is reported page 110 of the record in the Court of Appeals opinion that he made no attempt to contact. He made no attempt to ask them to come; he didn't know if they would come. I would like only briefly to reply to the contention that the Veterans Preference Act was enacted to set up a trial type hearing. I think that the brief shows that the words of a statute which state that the employee shall have a right to make a personal appearance. The legislative history and really all the other pertinent evidence shows that the statute was meant to give a right of personal appearance and no more. Might I just say that I believe on this record, we must assume that had petitioner asked these witnesses, they would've attended and that the Air Force would've given its permission. The remote possibility that they might have refuse, that the Air Force would've given permission is not present here because petitioner and his lawyer never asked. We respectfully request the Court to affirm the judgment below.
Earl Warren: Mr. Shapiro.
David I. Shapiro: I'd like to read from page 47 of the record if I may. This is the middle paragraph. At this time, Mr. Andrews who's the counsel for petitioner before the Commission again made a point of the fact that Airmen, Ryan and Tyler are assigned to duty at the Air Force Academy. They even know their presence had been requested at the hearing for cross-examination, the Air Force had failed to produce them as witnesses. Counsel for the appellant contended that the refusal to produce these airmen as witnesses was arbitrary in the best methods of full supply and error. Again on page 48, second paragraph, at the conclusion of Mrs. Dillon's remarks on behalf of the Department of the Air Force counsel for the appellants initiated the summation of the case by again pointing out “that there's been no opportunity to cross-examine the witnesses on whose statements the removal action have been taken and under the circumstances, the motives of these witnesses were unknown.” I believe that should put to rest the question for the contention that there has been no request to the Air Force that these witnesses be produced for cross-examination. It was the two affidavits by two of the accusing witnesses who were in fact Air Force military policemen upon which the removal was sustained and it was these witnesses whom counsel for the petitioner asked the Air Force to produce at the hearing.
John M. Harlan II: Well, the trouble is this is ambiguous. It says their presence was requested have been requested though -- I suppose Mr. Pollak would say to that is that refers to the request previously on, I don't remember that page is that have been made for the government to call him as part of the case.
David I. Shapiro: No, sir.
John M. Harlan II: What is the fact? Did you asked the Air Force to bring these people (Voice Overlap) --
David I. Shapiro: Yes sir, at the outset of the hearing right on page 44, the last sentence. He -- Mr. Andrew stated that in other words, the request which the appellant made for the appearance Ryan, Stevens and Tyler was rejected to which Mrs. Dillon required lineup affirmative and then he goes on to say that he wants them for cross-examination and he's referring back to that same request on 47 and again on 48. I think it's quite clear from the record that he requested that these people be produced for cross, not for direct and the fact that they had their case in by affidavits would indicate that by failing to make an objection to the use of the affidavits, he wanted to use the affidavits for the purpose of cross.
Byron R. White: But it is perfect [Inaudible]?
David I. Shapiro: Yes sir, it was at the hearing itself.
Byron R. White: That's another kind of your [Inaudible]?
David I. Shapiro: Yes sir, after the affidavits were read.
Tom C. Clark: Did he ever try to contact the witnesses themselves?
David I. Shapiro: No sir. The record does not indicate that he did so. We take the position however that the Air Force regulation 110-5 required to him to ask the Air Force to produce them because they're precluded from appearing voluntarily if he would've asked them. 110 makes it -- 110-5 required him to asked the Air Force to produce these men at the hearing. He couldn't just ask them to appear and they would appear because Air Force regulation 110-5 prohibits just that kind of procedure. Now, that that regulation is set forth in our reply brief and I think it's quite clear (Voice Overlap) --
Tom C. Clark: What was your point about not being able to get on the base? I thought that was the scope for these people.
David I. Shapiro: I'm sorry sir.
Tom C. Clark: What was your point about in not being able to get on the base? You said he was restricted outside the base.
David I. Shapiro: Yes sir, he was. We take the point -- we take the position, number one, that the reason he didn't come in and personally appear when he first got the notification of charges because he couldn't come on the base. As a matter of fact, it appears from 18 to 19 of the record if he did show up on the base, there was an order out for his arrest so he answered the charge in writing. I think that this arrest order would seriously have inhibited him from talking to the Air Force military policeman on the base who in fact ordered to arrest them and who in fact where the witnesses who were -- the Air Force witnesses at -- who had supplied the affidavits which were used in the Civil Service Commission hearing in Kansas and upon which –-
John M. Harlan II: You two gentlemen seem to be and head on collision as I understand it. Mr. Pollak says that a request had been made to the Air Force, these men did not appear, the government wouldn't be here which is just exactly what I expect to Solicitor General's office to say.
David I. Shapiro: I hope so.
John M. Harlan II: And you say on the contrary that there was a request made and you couldn't get him?
David I. Shapiro: That's what the record stated (Voice Overlap) Your Honor, that's the way you are --
John M. Harlan II: - (Voice Overlap) read the whole record it sounds off [Inaudible] to me because I can't imagine Mr. Pollak getting up in making the statement of that kind that he thought the record can be [Inaudible]
David I. Shapiro: I think it's quite clear and I would also like to point to page 85 at the record where they explain their failure to produce them to the Civil Service Commission and it said here this witnesses at furnish warrant statements concerning Mr. William's behavior and it was considered unnecessary to bring them to the hearing, whether it was felt that any testimony they would give would be repetitious and it would've made William's case even worse.
Potter Stewart: Well, it doesn't indicate here that Mr. Williams requested?
David I. Shapiro: No sir but they point out there that the Air Force Academy and here is the important part, knowing the character and reputation of the airmen who were concerned in this matter, it is firmly believe that even had the officials of the academy deem it necessary for them to attend neither the counsel for Williams nor Mr. Williams could have discredited them upon cross-examination. So, obviously the Air Force knew that the reason that they were being asked to produce these people was for the purpose to cross-examine. I think when these portions of the record are read together, there can't be really any question about the fact that a request was made and under refusal was also made and made explicit.
Earl Warren: Mr. Pollak, can I ask you about Mr. Justice Harlan was correct here [Inaudible] Mr. Shapiro, I don't want you to re-argue matter but did he correctly understand you?
David I. Shapiro: We certainly take the position referring to page 85 which has been cited that there was no desire or intent on the part of any official of the Air Force Academy to preclude the witnesses from appearing. We are -- we do not believe had a request be directed -- directed to the witnesses or the Staff Judge Advocate that the Air Force would have declined to permit to go [Inaudible]
William J. Brennan, Jr.: Well, Mr. Pollak --
Earl Warren: For cross-examination?
David I. Shapiro: For cross-examination, yes Your Honor.
Earl Warren: And you believe they are obliged to do that?
David I. Shapiro: I believe (Voice Overlap) -- under the Air Force regulation the Air Force would have been obliged to permit them to come and to carry out the policy.
Earl Warren: The Commission -- Commission would have been obliged to see that they got their report for the hearing?
David I. Shapiro: The Civil Service Commission examiner?
Earl Warren: Yes.
David I. Shapiro: Well, that --
Earl Warren: Well, I don't mean they could have compelled the Air Force but as an orderly proceeding against this man he would have been entitle to have -- to be there --
David I. Shapiro: I believe --
Earl Warren: -- for cross-examination of --
David I. Shapiro: I believe that if he had said at the hearing that we have attempted to make arrangements to have these witnesses attend and we have been unsuccessful with the Air Force at the commissioner (Voice Overlap) --
William J. Brennan, Jr.: Mr. Pollak, is that the key to your position that he would've had to approach those witnesses first --
David I. Shapiro: Yes sir.
William J. Brennan, Jr.: -- before he could make any request to the Air Force for assistance and as this record show and I don't because as I told you I haven't read it, if this record shows that there was a request to the Air Force it was a request without first going to the witnesses to ask them as they be.
David I. Shapiro: That is what the record show and you are --
William J. Brennan, Jr.: And your position --
David I. Shapiro: I don't think we're at [Inaudible] on that (Voice Overlap) there was no request to the witnesses.
William J. Brennan, Jr.: Alright. Now, there was no request to the witnesses?
David I. Shapiro: That's right.
William J. Brennan, Jr.: Now, your point -- your position as I understand that without a request for the witnesses first he has no case at all.
David I. Shapiro: Our position is that we -- I would not -- I would like you to -- Court understand that had he made a request first to the Air Force Staff Judge Advocate and said, “We want you to assist us in getting these witnesses.” That the too raised the question but he did not do that. He did not approach the witnesses, he did not approach Staff Judge Advocate which the Air Force regulations provide its Air Force regulations provide its Air Force policy for him to permit witnesses to testify. The orderly procedure would have been to approach the witnesses and ask them to attend.
Potter Stewart: Now, what do you think he did it by a way of request?
David I. Shapiro: I think he came to the hearing and stated, “The witnesses aren't here, I expect you to produce the witnesses.” He said that to the Air Force personnel officer who was there and the Air Force personnel officer's stated, “We didn't think it was necessary to produce them as part of our case.”
Arthur J. Goldberg: [Inaudible]
David I. Shapiro: Well, that --
Arthur J. Goldberg: [Inaudible] --
David I. Shapiro: I --
Byron R. White: And hadn't you already said that that there wouldn't be a case if that have happened?
David I. Shapiro: Well, I certainly said that we think it would be very questionable whether the government would be here.
William J. Brennan, Jr.: Now, I am [Inaudible]
David I. Shapiro: We -- the Air Force policy would have been to have the witnesses at the airway, had he made a request.
Arthur J. Goldberg: [Inaudible]
David I. Shapiro: They are members of the airway, that's right.
Arthur J. Goldberg: Or the witnesses have said [Inaudible], is that correct?
David I. Shapiro: It could have done, yes.
William O. Douglas: [Inaudible] some of our tax cases that goes within the government [Inaudible], I guess that's your argument though?
David I. Shapiro: My argument really is I think as I hope I stated that had he ask to witnesses to come, have they not come, had he told the Air Force they weren't coming, the Air Force would've seen that they had come, that they would have come.
Earl Warren: These two men that were at the air academy were really the complaining witnesses, were they not, against him?
David I. Shapiro: There was a third person that he didn't ask to come, there were three witnesses.
Earl Warren: All three of them?
David I. Shapiro: And he asked for two of them to come, the third just -- he didn't make a request that the third would be here.
Earl Warren: Was he there?
David I. Shapiro: The third one was at the Oklahoma base which was somewhat more distant. He have been subsequently transferred.
William J. Brennan, Jr.: Where was this hearing?
David I. Shapiro: This hearing was in Denver, Regional 10 hearing. May I say further in answer of the question whether they would have been ordered to come, should I take it that on the basis of grievance proceeding hearing where the Air Force would have ordered the witnesses to appear and he availed himself of that procedure that it would have take him the same steps in the order into appear at a civil service hearing had he sought that. There's no question on the regulation been to order to witnesses to appear at the grievance hearing which is an Air Force procedure. Therefore, I can make no distinction then, I see no reason why it should have not order them to come, had he asked for them to come at a civil service hearing. Thank you.