William H. Rehnquist: We'll hear argument next in number 91-2003, the United States v. California and the California State Board of Equalization. Mr. Jones, you may proceed.
Kent L. Jones: Mr. Chief Justice, and may it please the Court: This Federal common law action for money had and received was brought by the United States to recover $11 million in public funds paid to the State of California as taxes by the manager of the Naval Petroleum Reserve. The manager is a Federal contractor who operates under an advance-funding, cost-reimbursement arrangement with the United States. The State taxes were assessed with respect to purchases of personal property made by the manager in the name of the United States. The United States contends that the taxes were erroneously and unlawfully assessed. The courts below did not reach the question of the legality of the State tax. They acknowledged that the United States has a Federal common law right to recover unlawful payments of State taxes, but they held that the Federal cause of action was inapplicable in this case because the United States had not pursued administrative tax refund procedures available under State law and had not brought its judicial challenge to the State tax within the 90 days provided by State law. In our view, and in the unanimous view of six other courts of appeals, the Federal common law right of the United States to recover public funds that have been unlawfully obtained is not subject to compliance with the State procedures applicable to State law tax refund suits.
David H. Souter: Mr. Jones, is... should we make a distinction in the kinds of unlawfulness that may be appropriate predicates for that common law action? There was nothing unlawful in the sense of being either criminal or mistaken or tortious. The unlawfulness here, on your view, is simply an unlawfulness in the sense that if the taxability issue were litigated as far as it could be litigated on the merits, the United States would win and California would not. But should we distinguish between those two senses of unlawful? And if we do, are you in trouble under the common law action?
Kent L. Jones: Well, there is no basis, or rationale even, for distinguishing in that sense, Justice Souter. The common law action for money had and received was designed by this Court to protect the United States, to prevent and remedy unlawful takings of public monies. Whether... or the way that it seems most direct to state it is that under Federal common law, if Federal funds have been taken without lawful justification, they must be returned. It is for the person who has taken the funds to establish the lawful basis. In this case, the State of California proposes that the lawful basis for its taking of the funds is the State tax law. Our position is that the State tax law does not provide a lawful basis. We would take the same position with respect to other takings of public property with respect to which we think there is no lawful justification.
Sandra Day O'Connor: Well, Mr. Jones, who's the taxpayer here?
Kent L. Jones: Well, as California uses that term, the taxpayer is the Federal manager of the Naval Petroleum Reserve.
Sandra Day O'Connor: Who do you say is the taxpayer here? You don't think the Government's the taxpayer, do you?
Kent L. Jones: In... there's two ways to answer that; one is factually and the second is conceptually. Factually, the court of appeals said, and was correct in saying so, that these taxes were paid with Federal funds. That's at page--
Sandra Day O'Connor: Well, Federal funds reimbursed the contractor here.
Kent L. Jones: --Actually, it was something more than that. As you would see looking at page 142 of the joint appendix, this is actually Federal funds that were paid directly to the State. There was... this is an advanced funding arrangement of the type the Court discussed in the United States v. New Mexico case. These--
Sandra Day O'Connor: Well, in United States v. New Mexico do you think we thought the United States was the taxpayer?
Kent L. Jones: --I don't know if... if that question, framed that way, was before the Court. What was at issue in United States v. New Mexico was whether the immunity of the United States from State taxes applied.
Sandra Day O'Connor: Uh-huh.
Kent L. Jones: And what the Court held in that--
Sandra Day O'Connor: And we said it didn't.
Kent L. Jones: --The Court held that it did not apply in that case.
Sandra Day O'Connor: And the United States is in no better position here, I assume, than in New Mexico.
Kent L. Jones: Well, we are in a better position here. Our contention is that there is no lawful basis for the State tax to be applied to us. The... we're not contending--
Byron R. White: But you don't claim any sovereign immunity either.
Kent L. Jones: --We're not--
Byron R. White: Either for yourself or for the contractor.
Kent L. Jones: --We are not contending the tax is unconstitutional.
Byron R. White: Exactly.
Kent L. Jones: However, as... just to inform the Court and not because it's instrumental in our argument, the State's tax is shaped with constitutional constraints in mind. The State has crafted a tax that applies only to Federal contractors and applies to them differently than it would to other types of contractors, and it does so to meet the requirements of the Constitution. But our position is that the State tax is unlawful as a matter of State law. That is another way it's--
Sandra Day O'Connor: Yeah, but maybe you're just in the position of... of being subrogated to whatever the right of the taxpayer was. If the taxpayer is the... the contractor, then maybe the United States stands... stands in those shoes for purposes of litigating this question, as a matter of State law.
Kent L. Jones: --Well that, of course, is the State's position.
Sandra Day O'Connor: Yeah.
Kent L. Jones: And I acknowledge that there is a bit of a chicken and an egg problem here.
Sandra Day O'Connor: Yeah.
Kent L. Jones: And... and it's a little glib to say it, but nonetheless I think there's an element of truth; it's a Federal chicken and a State egg, and under the Supremacy Clause the chicken prevails. And in our view, the chicken is the common law right that this Court has recognized in... consistently, that the United... that anyone who takes Federal funds has to have a lawful justification.
William H. Rehnquist: But in much different circumstances, Mr. Jones. I don't think any of the cases that you rely on involve a simple case where the claim was that the... the tax was illegal under State law.
Kent L. Jones: This is the first time this issue has come to this Court, but it's been in the courts of appeals for decades.
William H. Rehnquist: Well, presumably that's why it's here now.
Kent L. Jones: That's correct. This is the first time this Court has had to decide whether a lawful justification exists when the State has taken our funds under an... made an unlawful... an illegal assessment of our funds.
William H. Rehnquist: Well, when your funds have been paid to the State by your agent.
Kent L. Jones: That is correct, and that was exactly the context of the Bayne case in 1876, where a Federal officer had Federal funds, he misappropriated those funds and transmitted them to a third party. This Court allowed the United States to recover directly from the third party the funds that had been unlawfully obtained by that party. Here too, the Court has to assume, on the record of this case, that the State tax is unlawful, that the State has... has no lawful justification for the taking of the funds.
David H. Souter: No, but we certainly cannot assume that the funds were unlawfully taken from the United States.
Kent L. Jones: I'm sorry, I couldn't hear you.
David H. Souter: I mean in... in the Bayne case the funds were unlawfully taken by the Federal officer from the United States, they were misappropriated, as I recall. So the United States stood, in seeking a quasi-contractual remedy, in a very stronger position than the United States stands here.
Kent L. Jones: Well, except that here the... this case falls with... does fall within the confines of this Court's prior decisions in that the funds were paid under protest and under threat of penalty. This is not a case where the taxpayer voluntarily made the payment and then came back years later and said by the way, I don't think I should have been required to. What the Court has held is that when... when the taxes have been paid under protest and under threat of penalty, that it is not regarded as a voluntary payment and that it can... the Federal Government, the common law action applies to recovery of the funds.
David H. Souter: What... so you've got... you've got the better of me on that legal point. What's your best case for that proposition?
Kent L. Jones: Well, I think Bend v. Hoyt addresses that subject. I am relatively sure City of Philadelphia v. Collector does.
Anthony M. Kennedy: Is it incorrect to say that the State is indebted to the contractor?
Kent L. Jones: Well, under California law, the contractor is what is called the taxpayer. I am just talking now about California... the way California describes the situation, and the United States is called the real party in interest. California says that the real party in interest is not allowed to bring a suit to recover the refund, only the taxpayer may. As a result, the United States has no remedy under State law. California does not recognize any claim of the United States. The only exception that the California courts have described to that standing rule is when, as a matter of State law, the taxpayer is required by law, as a condition of receiving the refund, to pass the refund through to the real party in interest.
Anthony M. Kennedy: If... if this case had proceeded with the contractor's claim being adjudicated and there was a final judgment in the California courts as to the contractor and that judgment was in favor of the State, adverse to the contractor, would you still have the right to maintain this suit?
Kent L. Jones: We would then have the problem that the Court, I believe, addressed in the Montana case about collateral estoppel. And I think it's relevant to point out... and we would be bound if we had participated in the litigation and... and--
Anthony M. Kennedy: Which you did here, incidently, did you not?
Kent L. Jones: --Well, but the... the State court litigation here did not proceed to conclusion.
Anthony M. Kennedy: Well, you did at the administrative level.
Kent L. Jones: Well, I don't... I don't think it can be said that we participated in any manner at the administrative level; we had no right to. The contractor made that protest.
Anthony M. Kennedy: Didn't you pay the... didn't you pay the attorneys, or am I incorrect about that?
Kent L. Jones: Well, under our contract we had a duty to reimburse them for the costs. But I believe that... that... the joint appendix, and I don't recall the page... the counsel who was representing the contractor said quite clearly he had no authority to represent the United States. He was there--
Byron R. White: Well, could you have stopped your contractor from settling this case? It didn't go to the... it didn't go to conclusion and decide the very issue that... that the contractor had raised.
Kent L. Jones: --The settle... the settlement of the claim presents a different issue than... than collateral estoppel. The United States, in our view, has an independent Federal cause of action that the contractor cannot settle.
Byron R. White: Well, could you have... could you have forbidden the... your contractor from settling that case and... and instead, litigating it to its conclusion?
Kent L. Jones: Could we have forbidden them from settling it? I, frankly, don't know the answer. And it's normal in--
Byron R. White: Well, if you could, you just... you just blew it, that's all.
Kent L. Jones: --Well, this case wasn't settled in that respect below. What was done in the State courts was that the State acknowledged that a certain portion of its taxes were improper; the remaining portion was still being disputed. The record reflects that the contractor then advised the State that they had decided to dismiss the contractor's claim and that the United States would then commence a suit in Federal court. Now, the court of appeals didn't seem to be aware of that. It sort of made it sound like we made a tactical decision--
Byron R. White: Yes.
Kent L. Jones: --To settle something and then sneak it away.
Byron R. White: Exactly.
Kent L. Jones: But at least--
William H. Rehnquist: We take our facts, generally, as found by the court of appeals. We don't relitigate facts here.
Kent L. Jones: --Well, the court of appeals didn't find anything on that. It's just reading between the lines, it seemed to be the tenor of the court's--
Byron R. White: But it... but it was dismissed without prejudice, wasn't it?
Kent L. Jones: --It was dismissed without prejudice and at page 97 of the joint appendix there's a letter between counsel that makes it quite clear that the State was aware that the United States was going to pursue the claim in Federal Court. Claims of the United States involving public funds inherently implicate an important national interest.
Sandra Day O'Connor: Oh, let me just press one... one more question here. On your theory that the United States is the primary party here, do you think that the California... that the Federal contractor had standing to proceed with its litigation in State court, claiming the money?
Kent L. Jones: Because it was in State court, under the State rules it had standing. The State rule is that--
Sandra Day O'Connor: But under your theory here, it wouldn't.
Kent L. Jones: --Well, I believe there's... there's two separate causes of action. California law recognizes a cause of action for the putative taxpayer, and allows them standing to pursue it only in State court. This Court has recognized a Federal common law cause of action for the United States, which we think is a separate cause of action that, under 28 USC 1345, falls within the plenary jurisdiction of this Court. There is no dispute we are the real party at interest, that these were paid with Federal funds; all of the elements of the Federal common law cause of action have been met. I would just like to take a minute to explain what I think is the background of that action, although it may be apparent by now. As the Court held in the Chesapeake & Delaware Canal Company case, even when commercial transactions such as stock dividend payments are involved, when the United States seeks to recover public funds it is, quote, acting in its governmental capacity as much as if it were collecting taxes. The Court has thus consistently concluded, as it stated in Clearfield Trust, that it is for the Federal courts to fashion the rules governing the rights and duties of the United States in its financial and proprietary transactions.
William H. Rehnquist: Well, Mr. Jones, might there not be, in that situation, one rule for actions by the United States against private parties who may have kind of absconded with Government funds, as it appears to have been the case in Bayne, and another rule where the State is... where the Government is simply protesting a collection that has already been made by a State of taxes?
Kent L. Jones: Well, the only orderly way in which we can protest that collection is to subject ourselves to the risk of penalties and compulsory process at State law, or to bring... to make the payment in an orderly fashion, as this Court has... has held in... in the Courts I cited... in the cases I cited to Justice Souter.
William H. Rehnquist: Well, did any of those involve proceedings that involved the collection of State taxes as opposed to private individuals?
Kent L. Jones: Actually, the common law rule has its roots in those two cases I cited that involve suits to recover Federal taxes. This Court has held... held at common law that individuals could recover Federal taxes from the United States, even though they had been voluntarily paid, because it was the orderly thing to do, I suppose.
David H. Souter: Was there any other process for doing so at that time?
Kent L. Jones: There was no statutory remedy at that time, although I suppose that the taxpayer could have resisted the assessment and not voluntarily--
Byron R. White: Well, could... under the California rule, you could not have intervened in the proceedings that your contractor had instituted.
Kent L. Jones: --California cases seem to assume we can intervene. We could... but we would--
Sandra Day O'Connor: They assume you could.
Kent L. Jones: --Yes. They assume that we could intervene, and there's no authority, really, that answers that question. But I also assume, because there isn't any... any case law to the contrary, that we could assume... we could intervene, but we would be intervening in a State court proceeding.
Sandra Day O'Connor: Yes.
Kent L. Jones: We would be intervening in a proceeding that would make the Federal claims subject to State law procedures, to the State statute of limitations, and to State court adjudication of the claim. And those results are inconsistent with this Court's recognized need for uniform rules to govern the claims of the United States, in particular with 28 USC 2415, which provides a 6-year statute of limitations for claims by the United States arising under contract, express or implied, in law. Requiring us to proceed in State court as an intervenor would also conflict with 28 USC 1345, under which Congress has given the Federal courts plenary jurisdiction over claims by the United States.
William H. Rehnquist: Plenary and exclusive?
Kent L. Jones: Well, exclusive through the removal procedure... not expressly, Chief Justice Rehnquist, but pragmatically exclusive through the removal procedure. The United States is entitled to have its claims adjudicated in Federal Courts. Congress has determined that.
William H. Rehnquist: But... but when you talk about removal, you're talking about the United States as a defendant, then.
Kent L. Jones: Well, the United States has... has the option in every case to have its claims heard in Federal court. No party has the option to require the United States to have its claims heard anywhere else.
William H. Rehnquist: Well, but what may be the rule as to the United States as a defendant may be quite different than the rule as the United States as a plaintiff. I mean, if... if the United States is to... is to be sued by someone claiming that the... the Government owes it money, Congress may quite likely have provided that the suit is to be heard in Federal court, either through removal or through having been brought there in the first place. But I don't see that says much about the legitimacy of the Government's claim to recover taxes in a State proceeding.
Kent L. Jones: Well, 28 USC 1345 gives the Federal court jurisdiction over all, and that's the statutory word, all causes of action, suits, or proceedings commenced by the United States. It is as broad and plenary a jurisdiction as Congress has provided. Congress obviously intended that the claims of the United States would be adjudicatable or adjudicated in Federal courts. There is no basis under the Federal common law remedy for requiring the Federal cause of action of the United States to be adjudicated in State court. I should make emphatic what I... I said indirectly about the statute of limitations. The Court has held on several occasions that the Federal claims of the United States, and in particular the Federal common law action for money had and received, is not subject to State statutes of limitations. In 1966, Congress enacted a statute that expressly provides for every action for money damages brought by the United States for contracts implied at law to be given a 6-year Federal statute of limitations. The Federal statute of limitations applies directly to the quasi-contractual claim of the United States. The statute legislatively fills the gap created by this Court's decisions rejecting State law rules of limitation for the Federal claims.
Anthony M. Kennedy: Does that apply even if the United States is subrogated to the claim and proceeds in a subrogation capacity?
Kent L. Jones: If the... I take it the premise of that question is there are two causes of action. The United States has its Federal cause of action; the United States also, under the State's theory, could be subrogated to the State law cause of action. The answer to your question turns on the character of the State statute of limitations, at least that's what the Ninth Circuit has held in a series of cases not at issue here today. The Ninth Circuit has suggested that when the State statute incorporates the limitations period as an element of the cause of action, then compliance with the State statute of limitations is necessary to give rise to the cause of action. We think it apparent... although that issue isn't presented here, we think it apparent that this State statute of limitations does not incorporate compliance with the State period as an element of the cause of action. To the contrary, what the State statute of limitations says is that failure to bring suit within 90 days will be deemed to constitute a waiver of the State claim, so it is a traditional or more traditional State statute of limitations. So the short answer to your question is if we had proceeded under State law, we would not be subject to the State statute of limitations, the 6-year Federal statute of limitations would apply, but the case hasn't been presented on that basis in the lower courts. The State's argument takes a somewhat different tack. They don't join the contention that we should be required to exhaust a nonexisting remedy. They instead contend that we should be required to resort to the State process. For the reasons I've already described, that conflicts with well established rules requiring Federal rules to govern Federal actions. But I should also point out that it would make the public right of the United States to recover public funds turn on the perseverance of Federal contractors who ultimately have no stake in the outcome, and who operate under an enormous variety of tax procedures in literally thousands of local taxing jurisdictions. In Clearfield Trust the Court concluded that because United States transactions proceed upon such a vast scale, the Federal right should not be subjected to the exceptional uncertainties imposed by the vagaries of the State law rules. Finally, I do want to address the Court--
Antonin Scalia: Yeah, but businesses do that all the time. I mean they have less money than the United States. I don't understand why that is such a big imposition.
Kent L. Jones: --I think the Court has--
Antonin Scalia: The United States is... is claiming exemptions, or whatever, under State laws, to follow those procedures.
Kent L. Jones: --I think the Court has recognized that the claims of the United States differ both in quality and quantity in that respect. The United States as the sovereign, should not be subjected to State law rules that limit Federal rights. I think the Court looks at it from that perspective. I believe it is also true that it is... it is comparing apples and oranges to compare even a large corporation with the pervasive and extensive reach of the Federal Government throughout every city, county, and State.
William H. Rehnquist: But the so-called Federal right here is simply a claim under California law.
Kent L. Jones: Chief Justice Rehnquist, it is a claim under Federal law. It is a claim that the State has taken money without lawful justification. It is a claim under Federal common law.
William H. Rehnquist: Yeah, but the basis for that claim lies entirely in California State tax law, doesn't it?
Kent L. Jones: I would put it the other way. I would state... say that the basis for the State's defense, the basis for the State's assertion that, in fact, it took the monies lawfully, lies in its claim under State law. That is a claim that we... we disagree with and that the Court, for purposes of this case, must assume is incorrect. For purposes of this case, the Court must assume the State tax is unlawful and that--
William H. Rehnquist: Well who... who'd better decide that case, the California courts or the Ninth Circuit, as to whether a California State tax is unlawful or not, under... under California State law?
Kent L. Jones: --Well this... there certainly has never--
William H. Rehnquist: For California courts are better equipped to speak on that than the Ninth Circuit.
Kent L. Jones: --There's no question that the Federal courts have competence to decide these questions of State law. The question, it seems to me, the prudential one that you're framing, is whether the... as a matter of comity or abstention, the State courts should decide these Federal claims. The comity doctrine, as applied in fair assessment, stems from the Anti-Injunction Act and... and the conclusion that Congress didn't intend jurisdiction to reach State tax rules. But the... but the Anti-Injunction Act, by this Court's decision in Department of Employment, does not apply to the United States. And to the contrary, Congress gave the Federal courts plenary jurisdiction.
William H. Rehnquist: You're asking us here to extend previous holdings of the Court to a situation involving collection of State taxes. And it seems to me that you've... you've got to answer questions like which would be the preferable court system to decide the question, just as a matter of policy since the prior cases don't support what you're seeking to do here.
Kent L. Jones: Well, Chief Justice Rehnquist, we think the case... this Court's cases do support it. And as a matter of... and as a policy matter... the two policy sources that I can refer the Court to... this Court has plenary jurisdiction over claims of the United States; it doesn't have that kind of jurisdiction for anyone else. And secondly, the Anti-Injunction Act does not apply to the United States. In the Department of Employment case, this Court sustained a holding that the United States could enjoin a State tax and recover damages.
Byron R. White: Well, what if you... what if you got into court on this suit that... that you think the Federal court can hear, and it suddenly happens that a Supreme... a decision of the Supreme Court of California was found that squarely decides the issue that you want litigated against you? Now--
Kent L. Jones: That--
Byron R. White: --That's a matter of State law, then, isn't it?
Kent L. Jones: --I would expect the Federal court to look for sources of State law here, just as it does in any other case where it decides questions of State law.
Byron R. White: Why, sure. And you... and you would be stuck with it. So... so... so you really are wanting to litigate an issue of State law.
Kent L. Jones: Well, actually, we want to litigate facts as well. We want to litigate the question of whether the contractor under our Federal contract is a construction contractor.
Byron R. White: Right, exactly.
Kent L. Jones: There are factual questions and legal questions that implicate the rights of the United States, and we think they should be decided in Federal court.
Byron R. White: Well, let's assume that there's a... a State supreme court case that's... that is so similar to this that anyone would say it would control.
Kent L. Jones: In that event, I suppose the district court properly should decide that there was a lawful justification of public funds. But on this record, this Court has to assume there was no lawful justification. And I want to... I should point out, just in... that in the Board of County Commissioners case the Court emphasized that nothing... and I think I quoting... nothing that the State can do will be allowed to destroy the Federal right, which is to be vindicated. And our point is that we should be allowed to determine our Federal right under the Federal common law in Federal courts. I'd like to reserve any time I have left for rebuttal.
William H. Rehnquist: Very well, Mr.... Mr. Jones. Mr. Milam, we'll hear from you.
Robert D. Milam: Mr. Chief Justice, and may it please the Court: Although the contractor's attorney disclaimed any representation of the United States, the joint appendix is clear that the United Stakes... States directed and controlled that action. Not only at joint appendix pages 131 and 135 does it show that... the United States obligated to pay the contractor's attorney, at joint appendix page 58 the WBEC attorney told the Board of Equalization at the hearing on petition... at the petition for redetermination that the United States was instructing WBEC as to each step in the process. Joint appendix pages 59 and 60 show that the United... the WBEC attorney told the Board of Equalization at that same hearing that he had been not authorized to discuss a certain subject with the board.
John Paul Stevens: May I ask you this question, does that really make any difference? Under your theory of the case, I don't think you have to establish that the Government controlled the case, do you?
Robert D. Milam: I agree. I don't think so.
Byron R. White: Yeah. Could the... you say the Government did control this case, but could it formally have intervened under California law?
Robert D. Milam: Your Honor, under... under the judicial remedy, the Code of Civil Procedure, section, I think, 389, authorizes and almost requires a real party in interest to be before the court. And as to the judicial remedy, I believe it could have intervened under that section.
Byron R. White: And did it get to... it never got beyond the administrative stage, did it?
Robert D. Milam: I don't understand the question, I'm sorry.
Byron R. White: Did the... well, the contractor wanted a refund?
Robert D. Milam: Yes.
Byron R. White: And it... and it... and it employed the administrative remedy.
Robert D. Milam: Right.
Byron R. White: Did it... did it... it never got to court, did it?
Robert D. Milam: WBEC filed two court actions in State court, yes, at the direction of the United States.
Byron R. White: And those were... and those were settled?
Robert D. Milam: Those were not... I agree with Mr. Jones' characterization of that, that the... the Board of Equalization, through discovery, found that it had--
Byron R. White: Uh-huh.
Robert D. Milam: --Misapplied the tax to some extent.
Byron R. White: To some extent.
Robert D. Milam: And so they agreed to pay that back. And the result of that was the dismissal of the suit by... of the two suits by WBEC.
Byron R. White: So--
Robert D. Milam: There was no settlement, as such.
Byron R. White: --No, no, no. Well, but nevertheless, did... did the contractor raise the issue that the United States wants to litigate?
Robert D. Milam: Yes. The... the issues before the State courts would be the same issues before the Federal court.
Byron R. White: And... and so that issue never went to judgment.
Robert D. Milam: It did not.
Byron R. White: It did not.
Robert D. Milam: It was... the cases were dismissed.
Byron R. White: And you think... and... and... you think the United States could have intervened in those two cases.
Robert D. Milam: Yes, I believe--
Byron R. White: And if they lost in the... in the trial court on the issue they wanted to litigate, they could have appealed.
Robert D. Milam: --Yes, I believe that. Also, I believe, contrary to Mr. Jones, that the United States, under circumstances of this case, could have had an administrative remedy also... could have... could have filed a claim for refund and pursued administrative remedy. There are circumstances when that... that would not be possible, but under the circumstances of this case I think they could have.
Antonin Scalia: But assuming this is Federal property at issue, do you know of any other instances where in order to hold on to its own property the Federal Government has to appear in State proceedings?
Robert D. Milam: I cannot identify any other instances. I would... I would suggest that when State taxes are at issue, the State and State courts have a tremendous interest in... in resolving those issues, but I cannot cite another case to... to support that.
David H. Souter: Do you accept the premise of its being Federal property?
Robert D. Milam: That... the money was... was paid from Federal funds. Now, whether they want Federal property back or not, I really don't know, because WBEC was a taxpayer, we assessed the taxpayer, and they had some mechanism to... to pay the money with Federal funds. It's hard for me to believe that they want Federal funds back, but I... I don't know how to resolve that... that argument of theirs. This was... the State court suits were an action... was an action... were actions by a State taxpayer, WBEC, against the taxing entity that imposed the taxes, and the only issue was the application of State tax law. And this Court has often held--
Byron R. White: Was... was Mr. Jones correct in saying that the... the State was told that... when the case was dismissed or the cases were dismissed, that the United States was going to pursue the issue in Federal court?
Robert D. Milam: --I think he cited something in the joint appendix. I'm not aware of that, but he... he cited something in the joint appendix that I'm not aware of. I do not know.
Byron R. White: So, I suppose the State could have... could have refused to have the case dismissed?
Robert D. Milam: No, I think dismissal is... is a duty. I mean it... it is a right of a party who brought the suit and... and actually under California law it's very difficult to... almost impossible to contest that. If they want to dismiss without prejudice, they are allowed to do so.
Byron R. White: Even after the case has... even after discovery and things like that?
Robert D. Milam: Yes. I had... to give you an example, I had one case on appeal where I had... in the California courts... where I had filed my respondent's brief after the appellant's brief had been filed. And after I filed my respondent's brief, the court allowed the taxpayer to dismiss the... the appeal over... over my protest. But the... the opportunity to... to dismiss the case is very broad in California.
Anthony M. Kennedy: But you say the United States could have intervened at any time?
Robert D. Milam: Yes, Your Honor. The United... under section 389 of the Code of Civil Procedure, a real party in interest has the right to be before the California courts. In fact, I think they're almost required to be before the California courts.
Anthony M. Kennedy: Now, would it have had the... the right also, in your view, to intervene in the administrative proceedings?
Robert D. Milam: I'm sorry, I did not hear you.
Anthony M. Kennedy: Would it have had the same right to intervene in the administrative proceedings?
Robert D. Milam: Under the circumstances of this case, they could have either intervened, stepped into the shoes, or, on their own, pursued the administrative remedies. As I said, that's not always the case if the circumstances were different. But they could have done both in this case. This Court has often held that in the interests of Federalism and... and the principle of comity, State courts are the best place to determine the application of State tax law. Comparing the interests of the United States and the State of California in this case presents a dramatic example of why this should be the result in this case. California has retained as part of its sovereignty the ability to tax its own citizens. A part of that finality... a part of that sovereignty is the power to determine the finality of its tax payments. That is, when they can no longer be refunded. Joint appendix page 21 shows that the first WBEC case was filed on February 18th, 1983. And here we are more than 10 years later, arguing whether the United States has a cause of action in Federal courts. In contrast, under California law trial... court... cases must be brought to trial within 5 years or be subject to mandatory dismissal. Joint appendix page 95 shows that upon instruction of the United States, the WBEC... E-C cases were dismissed, and joint appendix pages 46 and 49 show that they were dismissed within 1 month of the running of the 5-year statute, the California 5-year statute. United States interest, on the other hand, is simply that of a taxpayer. There are no issues unique to the United States in this case, no Supremacy Clause issues, no sovereign immunity issues, no discrimination issues, no Federal constitutional issues, and no Act of Congress is involved. A Federal contractor can take advantage of the United States tax immunity because it derives from the Federal contract. The reverse also must be true. When the contractor cannot take advantage of the United States tax immunity, the right of the United States to sue the State for a tax refund derives soley from the Federal contract. The United States agreement to reimburse WBEC in this case, under the contract, merely provides the opportunity for the United States to step into the shoes of the taxpayer, and enabling the United States to pursue those remedies of a taxpayer. Indeed, because the United States controlled and directed these actions, it shows that the United States actually stepped into the shoes of the taxpayer in this case. The actions of the United States in controlling the actions and the willingness of WBEC to submit to that control shows that they view their relationship as one of subrogee and subrogor. The United States is asking this Court to do two things. First, to disregard the available State remedies in asking this Court to have the Federal courts instruct California on the application of State tax law. To paraphrase this Court in Penhurst State High School or Hospital versus Halderman, it's an invasion of California sovereignty for the Federal courts to instruct the State officials on the application of State tax law.
John Paul Stevens: May I ask a question that's kind of running through my mind about the analogy with the litigation costs and all? Suppose... the United States under the contract had to pay the attorneys fees, I think, did it not, of the contractor?
Robert D. Milam: They obligated themselves to... to pay--
John Paul Stevens: And if... if they were persuaded that the attorney had overcharged the client and they wanted to recover the overcharge from the client, would they... and... and the California statute of limitations had run, would they be able to sue in Federal court, in your view?
Robert D. Milam: --I do not know the answer to that question.
John Paul Stevens: Isn't that the same question we have here?
Robert D. Milam: I don't believe so.
John Paul Stevens: Why not? It's a State law cause of action. It overcharges a matter... say there's some State rule you don't charge unreasonable fees, or something like that. And the United States basically is a subrogee to the contractor, trying to get back, on a State cause of action, an excess charge. And here... here the contractor gave too much money to the tax collector, and it also gave too much money to its lawyer. Why are they different?
Robert D. Milam: Well, the only... the thing that I'm relying on in this... in this case is the sovereign power of California to impose taxes. And that sovereignty, I think, makes it different from the example you... you gave me. I'm not sure there's the same interest of California, but--
John Paul Stevens: Well, they have the sovereign power to decide how much... what is a fair fee for a lawyer, I guess, a member of the State bar, and so forth and so on. But you think that's different?
Robert D. Milam: --I think it's different, yeah.
Antonin Scalia: Yeah. Of course, even if you admitted in that case, as I suspect might be the case, the United States could sue in Federal court, that's not the issue here. It's just whether the State statute of limitations would apply to that suit, isn't that... isn't that right?
Robert D. Milam: I'm not sure I understand the question, Justice--
Antonin Scalia: We're just arguing about what statute of limitations applies. That's... that's the issue in this case, isn't it?
Robert D. Milam: --Well if--
Antonin Scalia: So even if your response to Justice Stevens were yes, the United States would... could proceed in Federal Court against the... against the lawyer, you... you still might be-- --Even if... even if the statute of limitation is run, is my question. Even if the State statute's run. Even if it's run, I see. That's why.
Robert D. Milam: --Now, the State's... the difference between sovereign power and a running of a State statute of limitation is that under this Court's decision in United States v. Dalm, the principles of sovereign immunity indicate whether or not there's a claim against the sovereign. And the... the Dalm case found that the... both a timely filing of a Federal claim for refund and a timely filing of a lawsuit were conditions precedent to the accrual of a cause of action.
William H. Rehnquist: We'll resume there at 1:00, Mr. Milam. Mr. Milam, you may resume.
Robert D. Milam: Mr. Chief Justice and may it please the Court: The United States is asking the Court to invoke equitable remedies, that of a contract implied in law or money had and received, and declaratory relief. And California's position is that this Court's answer should be consistent with the long line of authority, from Dows v. City of Chicago in 1870 to Fair Assessment in Real Estate v. McNary in 1981, that the Federal Government cannot invoke equitable remedies, at least against a State where no Federal issues are involved, unless the effective pursuit of remedies, State remedies, is pursued... is done.
Byron R. White: Well, I take it you're... you're saying that this so-called common law cause of action the Government relies on just doesn't apply in the... the State tax context.
Robert D. Milam: That's our position. Yes, Your Honor.
William H. Rehnquist: Yes, uh-hum. What was the first of those cases you just mentioned?
Robert D. Milam: Dows v. City of Chicago in 1870.
William H. Rehnquist: Dow?
Robert D. Milam: Dows, I believe.
William H. Rehnquist: Yeah. Where is that cited in your brief?
Robert D. Milam: I don't believe I cited it in my brief. Excuse me.
William H. Rehnquist: Why didn't you?
Robert D. Milam: I have no excuse.
William H. Rehnquist: Could you give us the citation now?
Robert D. Milam: I do not have it handy, Your Honor. I'm sorry, I do. 78 U.S. 108 1870.
Byron R. White: But there are several court of appeals cases that... to the contrary to your position, aren't there?
Robert D. Milam: There are and I'm going to... I'm going to discuss those in a few seconds, but first I want to discuss the Department of Employment case which deals specifically with this area.
Byron R. White: The what?
Robert D. Milam: Department of Employment v. the United States.
Byron R. White: Oh yes, uh-hum.
Robert D. Milam: Mentioned by Mr. Jones.
Byron R. White: Uh-hum.
Robert D. Milam: The Department of Employment case was a case that refused to apply the Tax Injunction Act as to State taxes because a Federal instrumentality was being taxed in violation of its sovereign immunity. That rule does not apply in this case because WBEC was not a Federal instrumentality and there's no issue of sovereign immunity. Indeed, if you take the facts of the Department of Employment case and take away the Supremacy Clause issue in that case and substitute in its place the principle of comity, because tax... State tax law was involved, it's California's position that even Federal instrumentalities must be required to pursue State remedies before seeking relief in the Federal courts. There are three cases at least, and maybe more, that... I've put down... I've put three cases that the United States has cited that fall into this category. The United States v. Benton, United States v. Broward County, and United States v. DeKalb County all involve issues of application of tax... State tax law only and there are no Supremacy Clause issues. And California believes that to the extent that these cases stand for the proposition that State remedies need not be pursued, they are wrongly decided. These are all lower court decisions.
Byron R. White: Those are the ones on the Government's brief page 20, I think, yeah, yeah.
Robert D. Milam: So California's answer to the question presented by the United States is that assuming it had... just assuming for purpose of argument that it can state a quasi-contract cause of action, when the issue is one of application of State tax law only and there are no Supremacy Clause issues, pursuit... effective pursuit of State remedies is required before the access to Federal Courts, and this includes meeting all the procedural requirements of State law.
Antonin Scalia: Why is that? I don't understand. I mean I can understand the other basis for the result you want, namely the basis that... where the United States is just subrogated to a... to a claim of someone else. If that someone else has no right to ignore the State procedures, neither does the United States; that makes sense to me. But you're... this theory you're giving us now that even if it were the United States in its own right that were suing, it would have to follow the State procedure--
Robert D. Milam: Well, that was the question presented.
Antonin Scalia: --That seems, that's a lot harder to swallow.
Robert D. Milam: I'm sorry, I'm... I interrupted you, I didn't--
Antonin Scalia: That... that was the question presented?
Robert D. Milam: --The question presented is that the United States assumes it has a quasi-contract cause of action, and the question then is do they have to pursue State remedies. And our answer is yes, even if they can state a cause of action--
Antonin Scalia: The quasi-contract cause of action precludes any subrogation theory.
Robert D. Milam: --I don't believe it precludes subrogation theory. I think the subrogation theory is correct. But the United States, in presenting the question to the Court, assumed it had a quasi-contract cause of action.
Antonin Scalia: Oh, so I have to assume that this case is the same as though the United States were suing in its own right, as though the tax had been posed on the United States and not on its contractor? Well, haven't you already answered that, yes, by saying that the United States could have not only intervened but might... should have been required to intervene because it's the real party in interest?
Robert D. Milam: Yes. That's right, Your Honor.
Antonin Scalia: Uh-hum. Well. Who's... you may agree with the subrogation theory but that isn't really the main thrust of your argument at all.
Robert D. Milam: Well it... it... it... it is. We think it's the correct answer, but the problem that, of course, we've had with... with that--
William H. Rehnquist: Yes, but you say--
Robert D. Milam: --There's no court that has... has held that. And... and it's a new... it's an issue that this Court's never... never reached. And so to rely solely on that.
William H. Rehnquist: --Well why is that... why is that a problem? I this Court has never held... never expressed an opinion one way or the other, why does that prevent you from urging it to us?
Robert D. Milam: It doesn't. It just causes me to... to... to be careful and not putting all my eggs in one basket just in case it... this Court doesn't agree with me.
William H. Rehnquist: You want to have several strings to your bow.
Robert D. Milam: Exactly, Your Honor.
Anthony M. Kennedy: What about the-- --At least one egg out of a half a dozen. [Laughter] I'm not sure... the State's... the Government's proceeding on a common law count for money had and received.
Robert D. Milam: That's my understanding, yes.
Anthony M. Kennedy: Well is... was that an equitable action at common law?
Robert D. Milam: I don't know the answer to that. I--
Anthony M. Kennedy: Well, I... I think it was not, which is what... why I'm not sure why you say that equity requires that it follows exhaustion of remedy. You don't have to exhaust remedies to sue for money had and received, do you? What's your authority for that?
Robert D. Milam: --I have no authority, Your Honor.
David H. Souter: Do you... let's... let's go back to the cause of action again for a moment. Mr. Jones relied heavily on... on the Bend & Hoyt and the City of Philadelphia case. Do you accept them as being in point?
Robert D. Milam: I don't accept them as having a... a contract... a quasi-contract cause of action. But they may be in point if they do have a contract, quasi-contract cause of action.
David H. Souter: Well I thought... I looked at them very quickly. I thought they did, but do you... can you think of any basis to distinguish them from the... from the case that you've got today?
Robert D. Milam: The only basis that... that I've been able to distinguish the common law quasi-contract action is that the money was supposed to be paid involuntarily. And although WBEC may be said to... to pay... have paid the taxes involuntarily, I don't think that could be said of the United States and the United States is the one asserting this action.
David H. Souter: Yeah.
Robert D. Milam: So I'm not sure they meet the common law definition.
David H. Souter: Okay.
Robert D. Milam: All the other cases... all the cases, besides the three I mentioned, relied upon by the United States involve Supremacy Clause issues. And in that sense... and that situation is the only time that the courts allow the United States to go directly to the Federal Court. Those issues are not present in this case. The Clearfield Trust case also would not apply. The Clearfield Trust was a response to this Court's decisions in Erie v. Tompkins and Hinterleiter v. LaPlada. Those two cases stand for the proposition that Federal courts can invoke Federal common law to protect the interests of the United States. However, the application of that rule has some conditions precedent which aren't present... which have not been discussed. One is that this Court has held that when the United States and a State are the parties, then the interests of both governments must be considered. And when you consider the interests of State government, the principle of comity also comes into play. That was the Board of Commissioners v. the United States, 308 U.S. 343, 1939. Also, this Court has stated that the invoking of Federal common law is usually applied in situations where a Federal rule is necessary to protect uniquely Federal interests. There's no uniquely Federal interest in this case that needs protection. Third, in determining whether to apply common law, this Court has held that a guiding principle is a significant conflict between the use of State law and Federal interest or policy. And as the Ninth Circuit held in this case, there is no such conflict. The United States does not have a quasi-contract cause of action, although up to this point I've been assuming it had, for two reasons. First, the Ninth Circuit was correct in holding there has been no unjust enrichment of California as that term is used in the quasi-contract action. How can California be unjustly enriched when WBE... State court actions could have resolved every State law issue in this case, including whether taxes were overpaid. California cannot be unjustly riched... enriched at the expense of the United States when the United States directed and controlled the State court actions and failed to bring the suits to trial within 5 years and directed WBEC to dismiss the actions. The second reason that the United States has no quasi-contract cause of action in this case is that the United States as a subrogee can invoke only those remedies of WBEC, and WBEC did not have a remedy of a quasi-contract action in this case.
Byron R. White: Well, as I suggested, that is somewhat inconsistent with your notion that the United States was the real party in interest and could have and should have intervened.
Robert D. Milam: I don't believe so, Your Honor. If... if the United States steps into the shoes of the... of the contractor it becomes... it becomes a real party in interest. I think the real party in interest is the one whose money is at stake, and I don't believe that being a subrogee has any conflict with that concept at all.
Byron R. White: Well, why is the United States the real party in interest if it isn't its money that's involved?
Robert D. Milam: That's the reason it is the real party in interest.
Byron R. White: Okay.
Robert D. Milam: But that... I don't think that conflicts with being a subrogee. The United States' claim in this case is based entirely upon California tax law. And like this Court's decision in United States v. Dalm, the United States... the California tax law requires the filing of a claim for refund and the filing of a suit within 90 days of the notice of denial of the claim for refund. WBEC did go through this procedure. Notice of denials were made and it filed suit within 90 days. However, because it's a part of the California accrual of a cause of action under a waiver of sovereign immunity, once the dismissals were made WBEC's actions... claim against the State of California were extinguished by operation of law when the dismissals were made. The Ninth Circuit said that a dismissal means those cases were never filed, and if the WBEC cases were never filed no case was filed within the 90 days of the notice of denial of WBEC's claim for refund. So the United States can make no claim against California either as a taxpayer, because it did not file a claim for refund, or as a subrogee of WBEC. And it's reliance upon Summerlin--
Antonin Scalia: But can you bring a suit for money had and received as subrogee? I mean the question we'd accepted is whether invoking... in invoking the Federal cause of action for money had and received, the United States must comply with the State law requirements. Can you do that when you're a subrogee?
Robert D. Milam: --I don't... in this case I don't believe so because WBEC had no such action and a subrogee just takes the remedies of the subrogor. So the United States reliance on the Summerlin case is misplaced because it fails to distinguish between a statute... State statute of limitations depriving the United States of a preexisting valid claim and the conditions precedent to an accrual of a cause of action under a waiver of sovereign immunity. The first question for Summerlin and Summerlin analysis is is there a valid cause of action. If there's no valid cause of action, then you never get to the second element of Summerlin, the deprival... depriving of the United States of a cause of... of a claim. Even if you assume that during the pendency of the State court actions that WBEC filed the United States had a valid claim, that claim was not denied by statute of limitations, that claim was denied by the voluntary dismissal of those cases under direction of the United States. I have nothing further.
William H. Rehnquist: Thank you, Mr. Milam. Mr. Jones, you have 1 minute remaining.
Kent L. Jones: Excuse me. Federal... Federal common law has been applied to actions brought by the United States to recover States taxes. This is not the first case of this type. Board of County Commissioners was a suit by the United States to recover taxes paid to the State of Kansas. I just--
William H. Rehnquist: But there the only question this Court decided was whether interest would be available, wasn't it?
Kent L. Jones: --It's the only question the Court decided, but it's not the only question the Court discussed and addressed. The Court specified the fact that Federal common law creates the remedy and... and governs the choice of the... of the rules to apply.
William H. Rehnquist: But nobody was arguing otherwise in that case.
Kent L. Jones: I... I assume that's correct, but I don't know, I wasn't up there.
William H. Rehnquist: Well, I mean judge... I don't claim to have been present at the argument. I'm just saying from the opinion it doesn't appear that anyone was arguing otherwise.
Kent L. Jones: Well, the opinion discusses the issues as if they were relevant to its decision, and so I assume that those issues were discussed before the Court. But as far... I'm just being honest... in terms of what was actually presented to the Court, I'm... I'm not certain. The second point is that common... at common law, at... the exhaustion of remedies was not required. The City of Philadelphia v. Collector, this Court's decision specifically rejected a suggestion that the Federal remedy should not be available because there was an administrative procedure not exhausted. The Court said there was no support for that proposition.
William H. Rehnquist: Thank you, Mr. Jones. The case is submitted.


William H. Rehnquist: We will hear argument next in No. 85-2067, United States versus Jose Mendoza-Lopez and Angel Landeros-Quinones. Mr. Wright, you may proceed whenever you are ready.
Christopher J. Wright: Mr. Chief Justice, and may it please the Court, the question presented is whether defendants prosecuted under 8 USC 1326 for reentering the United States following a deportation may collaterally attack the deportation proceeding in the criminal prosecution. The two respondents were arrested by agents of the Immigration and Naturalization Service in October, 1984, in Nebraska. At an immigration hearing in Denver with eleven other aliens they were given a list of free legal services and advised that the proceeding could be delayed if they wished to contact counsel. They waived their right to counsel. The immigration judge questioned each alien at the hearing. Respondents both admitted that they were citizens of Mexico, that they had entered the United States unlawfully, and that they were subject to deportation. The immigration judge advised both respondents that they were eligible to apply for suspension of deportation because they had been in this country more than seven years. The judge explained that to qualify for suspension of deportation an applicant must show that he is of good moral character and that severe harm would be suffered by a member of the applicant's immediate family if he were deported. The judge also stated that the respondents could have five days to apply for suspension of deportation. Both respondents decided not to apply for suspension of deportation.
Harry A. Blackmun: Mr. Wright how effective is that information? Doe the attorney general grant relief in many cases?
Christopher J. Wright: No, suspension of deportation is discretionary matter.
Harry A. Blackmun: Does he ever grant relief?
Christopher J. Wright: Yes, he does, most commonly if indeed a spouse of the alien is an American citizen. The immigration judge ordered that both respondents be deported. He asked whether they wanted to appeal his order, whether they wanted to accept his order, or whether they wanted to reserve decision. Respondents both accepted the order and waved their right to appeal. They were deported to Mexico two days later.
Sandra Day O'Connor: Mr. Wright, what would have happened if one of them had said, yes, I think I would like to appeal? Would they be deported nonetheless? Or would they remain here pending the appeal? Or what happens?
Christopher J. Wright: They would remain here pending appeal. One of the respondents asked whether or not they would be released on bond pending the appeal, and was told that there would have to be a proceeding to determine what the amount of the bond should be.
Sandra Day O'Connor: So the person might have to remain in custody pending the appeal?
Christopher J. Wright: That's right.
Speaker: Both respondents were given forms at the border stating that they would be subject to felony prosecution if they returned without obtaining the attorney general's permission. Respondents-- --Both of these respondents, then, Mr. Wright, did in fact leave the United States?
Christopher J. Wright: Both did. Six weeks later, however, both were arrested in Lincoln, Nebraska. They were charged under Section 1326.
William H. Rehnquist: From where had they been deported?
Christopher J. Wright: From El Paso, Texas, into Mexico.
William H. Rehnquist: From El Paso.
Christopher J. Wright: Respondents sought to dismiss the indictments, contending that their deportation proceeding had been conducted unlawfully. The District Court first considered whether respondents could collaterally attack their deportation proceeding, noting that the circuits are split on the issue and that this Court has not decided the question. It decided that collateral attack is permitted at least to the extent that the court could review the deportation proceeding prior to trial. The District Court then concluded that while the immigration judge had complied with the regulation requiring that he inform respondents that they were eligible to apply for suspension of deportation, that respondents were not in a position to evaluate intelligently that option. The court also found that respondent's decisions not to appeal were not considered judgments. On that basis, it concluded that the hearing was fundamentally unfair and dismissed the indictments. A divided Court of Appeals affirmed.
Harry A. Blackmun: That was Judge Irbaum?
Christopher J. Wright: Yes, it was.
Antonin Scalia: And you have conceded that.
Christopher J. Wright: We have.
Antonin Scalia: That it was fundamentally unfair?
Christopher J. Wright: We have not raised... I am sorry, we haven't conceded, we have not raised the issue before this Court whether the hearing was conducted properly.
Antonin Scalia: You want us in our decision to assume it was fundamentally unfair.
Christopher J. Wright: That's correct. The Court of Appeals sided with those circuits that hold "that a material element of the offense prohibited by Section 1326 is a lawful deportation. " The court found that this Court's decision in Lewis, where the Court held that a defendant prosecuted for being a felon in possession of a firearm may not collaterally attack their felony convictions is not analogous. The Court of Appeals--
Antonin Scalia: What does it mean to assume that it is fundamentally unfair? That is what troubles me. Are you asking us to say that so long as somebody is deported no matter what the unfairness in the hearing was? I mean, suppose two FBI agents just show up and say we are federal agents, we are going to deport you, and they have no authority whatever, and they will say, we will give you a hearing right now, and they give them a quick hearing, and they decide they are going to deport them. They take them to the border and deport them. Is that fundamental unfairness embraced in the kind of fundamental unfairness you want us to assume?
Christopher J. Wright: --No, in that case the elements of the crime prohibited by Section 1326 are reentry after a deportation. Your facts do not amount to a deportation.
Antonin Scalia: What amounts to a deportation?
Christopher J. Wright: You have to go before an immigration judge, who signs an order of deportation ordering you to be deported. You can always say in a prosecution under Section 1326 that I wasn't deported. An element of the crime is that you are deported. We are conceding that the deportation hearing was conducted improperly, the specific impropriety found here was that suspension of deportation was not adequately explained to the two respondents.
Antonin Scalia: Well, what if there was bias on the part of the administrative judge, the immigration judge? I mean, he was a brother of the worst enemy of one of them, and it was clearly just a rump proceeding? You would want us to assume that, too? Any kind of procedural irregularity whatever in the deportation proceeding?
Christopher J. Wright: It is our position that the alien's options are to appeal to the Board of Immigration Appeals and then to the Court of Appeals or failing that, that they can apply to the attorney general for permission to reenter the United States following a deportation.
Sandra Day O'Connor: But you wouldn't think that even a so-called gross miscarriage of justice in the course of a 1326 proceeding could be raised?
Christopher J. Wright: That's correct. It is our position that it can't be raised there, that the correct approach is to raise it on appeal or to apply for permission to reenter.
Sandra Day O'Connor: How about if the right to appeal was not known by the person deported and therefore the waiver of the appeal was invalid? That can't be raised?
Christopher J. Wright: Of course that could be appealed, raised on appeal to the Board of Immigration Appeals. Now, your particular example, of course, the alien wouldn't raise it because the hypothetical is that they weren't told of that. It is our position that the alien may still not take the self-help remedy of re-entry, that the proper course is to apply for permission to reenter, and if the alien has an argument that would justify suspension of deportation, for example, he would have an argument that would justify permission to reenter, and that is the proper course. Self-help--
Sandra Day O'Connor: Do you take the position that there are absolutely no due process limitations to the enforcement of Section 1326?
Christopher J. Wright: --That's correct.
William H. Rehnquist: Mr. Wright, there is certainly some authority that at least when you are talking about a District Court Judge, which I take it is every bit as sacrosanct as an immigration officer judgment, that if you would find actual bias on the part of the judge, that could be set aside after the judgment has become final. Would you include these within the rubric of what you are talking about?
Christopher J. Wright: We don't think these should be raised in 1326. These sorts of terrible hypotheticals we would think would be good reason for a Court of Appeals to reopen the deportation proceeding and order that a new proceeding be held.
Byron R. White: Or the Immigration Board of Appeals.
Christopher J. Wright: Certainly the Board of Immigration Appeals one would hope would do it before a Court of Appeals did it on the direct appeal.
Antonin Scalia: What direct appeal? He has been... If you assume he has been done out of his right of appeal by this biased judge who never even informs him of his right of appeal, and then he is out of the country, there is really no way he can get the matter before the court any more unless the attorney general lets him back in in his grace, right?
Christopher J. Wright: Well, it is more difficult to appeal from a foreign country. It is not impossible.
Antonin Scalia: You can do that?
Christopher J. Wright: The case of Mendez cited in our brief is an example where an alien did that and we would think that in these sort of terrible hypothetical situations that the proceeding ought to be reopened, but that is what we think the course ought to be, that the deportation proceeding ought to be reopened on appeal, or that permission to reenter should be sought from the attorney general, but that it shouldn't be raised following reentry in a criminal prosecution for unlawful reentry.
William H. Rehnquist: As I understand the Court of Appeals opinion it was not based really on the finding that there were due process violations in the hearing. They simply said you can collaterally attack this, and then went on to say, we think the collateral attack should be sustained here. They didn't base it on any extreme denial of due process in the hearing. They just say you can collaterally attack it for any number of reasons. Isn't that correct? That's correct, and while the District Court said fundamentally unfair here, the irregularity that he identified was failure to explain adequately the requirements of suspension of deportation. Yes, and really that is all we have to decide here is whether on these facts that can be collaterally attacked.
Christopher J. Wright: Well, that is correct. The logic of our position, as I think the questions have brought out, is that collateral attack simply isn't authorized in prosecutions under Section 1326, however.
Byron R. White: Mr. Wright, if the deportation had been at gunpoint you would still be making the same argument, wouldn't you?
Christopher J. Wright: Well, I am not sure whether you would have a deportation at gunpoint. That would be the same sort of... if somebody just throws you across the border, that is not a deportation. That can be raised.
Antonin Scalia: You require a hearing before an immigration judge of some sort?
Christopher J. Wright: Again, who signs an order of deportation.
Antonin Scalia: Who signs an order.
Christopher J. Wright: That is a deportation.
John Paul Stevens: Is it if it is so... I mean, maybe we are playing on words. Say it is so terribly unfair, say the Judge is biased and he doesn't let any witnesses come in, and when he enters the order he pulls out a gun and takes the man across the border himself, so could it be so bad that it would be void, and therefore not a deportation? When is it a deportation and when it is not? I guess that is the issue.
Christopher J. Wright: Well, I would... well, I don't really think... that is certainly not the issue here. If the Court wanted to preserve a gross miscarriage of justice exception as courts did before 1952, that certainly could be done.
John Paul Stevens: If you preserve that, then you have to ask the question whether this was a gross miscarriage of justice, and I think you don't want us to even be asking that. Well, I am happy if you wanted to consider that, because clearly this was not a gross miscarriage of justice. But you know, you just change the facts a little, you didn't tell them about appeal, they didn't have a translator there. I mean, you can gradually move along the line, and do you get to a point where you might say that, well, this one is so bad we would admit it is "void" or it is not a "deportation" because it was so bad. I am not quite sure what your--
Christopher J. Wright: Well, I wouldn't get to that point, and I think the virtues of a clean rule that you can't reenter and you can't raise the issue on reentry have those obvious virtues.
John Paul Stevens: --But the really clean rule even covers the FBI agents case.
Christopher J. Wright: Well, no, because that is not a deportation.
John Paul Stevens: Well, an official of the government said I am hereby deporting you, and I am signing a piece of paper that says you are deported, and then he takes him across. Why isn't that a deportation?
Christopher J. Wright: I think a deportation order has to have some meaning and must be signed by an immigration--
John Paul Stevens: The procedure must be regular on its face or something like that? The procedure must be regular on its face?
Christopher J. Wright: --I think there has to be a deportation order signed by an immigration judge.
Byron R. White: Well, after a proceeding?
Christopher J. Wright: I will settle for... well, there certainly ought to be a proceeding.
Byron R. White: But anyway the statute says how you deport somebody, doesn't it?
Christopher J. Wright: There are certainly regulations that cover that in some detail.
Byron R. White: And they have the force of law, I suppose, or what? So you have to have an immigration judge and he has to sign a piece of paper. Does he have to act in accordance with the outlined procedure?
Christopher J. Wright: Well, of course he does, and of course if he doesn't--
Byron R. White: What if he doesn't?
Christopher J. Wright: --If he doesn't, then you should appeal and the Board of Immigration Appeals should correct the error, and if the Board of Immigration Appeals doesn't correct the error, the Court of Appeals should.
Byron R. White: Well, I know, but if you haven't followed the procedures that the statute or the regulations say lead to a valid deportation, it isn't a deportation.
Christopher J. Wright: Well, that brings us to the question of whether Section 1326 has anything to do with valid deportation. And it is our position that the language of the statute on its face says nothing about the lawfulness or the validity of the deportation. It simply says a deportation. We think that the absence of any requirement on the face of Section 1326 supports our argument, that is, the fact of the deportation and not its reliability that Congress intends to be at issue in a prosecution under Section 1326.
William H. Rehnquist: What if an immigration officer simply picks up several illegal aliens in one of these sweeps or raids that they conduct occasionally and simply takes that person with that person's consent to Tlajuana or wherever else on the border. Is that a deportation?
Christopher J. Wright: No, that is not a deportation. Indeed, an alien who is granted voluntary departure after being brought before an immigration judge has not been deported and is not--
William H. Rehnquist: So the deportation connotes a formal order directing you to leave the country. Is that it?
Christopher J. Wright: --Followed by the government actually removing you from the country.
Thurgood Marshall: Mr. Wright, isn't there still the question as to... at the original time as to whether they were adequately explained the special appeal that they could have made to the attorney general? Isn't there still a question on that?
Christopher J. Wright: That hasn't been raised here.
Thurgood Marshall: Well, I thought the trial judge in this case said so.
Christopher J. Wright: No, the trial judge here only found that the suspension of deportation rules were not adequately explained.
Thurgood Marshall: That is what I am talking about. That is what I said.
Christopher J. Wright: Yes, that is the issue, whether--
Thurgood Marshall: That is still here as to whether he did adequately explain it?
Christopher J. Wright: --Right, although we did not raise that issue in our petition.
Thurgood Marshall: But it is still here, isn't it?
Christopher J. Wright: It is still there.
Antonin Scalia: Mr. Wright, is it customary for the service to allow a voluntary departure if the illegal immigrant just says, you know, you got me, it is no use going through the hearing? What do they usually... because otherwise you may be giving away the store here. It would seem to me to pay every immigration who is caught to say don't try me, just let me go and I will depart quietly, and then he comes back in and you can't apply the--
Christopher J. Wright: Yes. Well, the alien has to prove that he has either money or a ticket to leave the country.
Antonin Scalia: --All right.
Christopher J. Wright: An immigration judge won't allow voluntary departure unless that requirement is met. And the immigration judge won't allow it if the alien has done that before. In this case, for instance, there were 13 aliens. Two of them asked for voluntary departure. One was granted. One was denied because he had been granted voluntary departure before, and while he had ultimately left, he had only done it after he had been sent about five letters saying your time has run out.
Antonin Scalia: I see, so you can get three bites, really. That is, the first time you just don't contest the deportation, say I will leave quietly, right? The second time you are caught you do contest it because they won't let you leave quietly and they deport you. And then it is only the third time that the criminal statute would apply right?
Christopher J. Wright: Under those facts that is right I is not absolutely clear that an immigration judge would grant you voluntary departure the second time.
John Paul Stevens: Let me just be sure I understand one thing. If he does grant voluntary departure, and the alien returns without permission, he has not violated 1326?
Christopher J. Wright: That's right. He hasn't been deported.
John Paul Stevens: He hasn't been deported.
Christopher J. Wright: We think that Section 1326 is analogous to the federal statute at issue in Lewis and the federal statute that prohibits escape from federal custody. In both of those cases it is the fact of the prior proceeding and not its reliability that is at issue in the prosecution either for possession of a firearm or for escape from federal custody, and the courts all agree that collateral attacks are not allowed in those circumstances.
Antonin Scalia: There is no penalty for illegally entering the United States unless you have been previously deported?
Christopher J. Wright: No.
Antonin Scalia: The first time you pick up an illegal alien all you can do is deport?
Christopher J. Wright: No, that is what almost always happens. Eight USC 1325 makes it a misdemeanor to enter the United States unlawfully.
Antonin Scalia: I see.
Christopher J. Wright: And we think there is no question but that Congress can prohibit unlawful entry as it has. Accordingly it seems to make it even more clear that Congress can make criminal entry into the United States under certain circumstances, and that is all that Congress has done here. It has made criminal... it has made unlawful entry following a deportation a felony subject to two years imprisonment. It seems plain to that Congress could make it unlawful to enter the United States and subject to a felony prosecution if you had polio. That is really all we think that Congress has done here. The legislative history of Section 1326 makes it even more clear that it is the fact of the deportation and not its reliability that is at issue. The predecessor statute contained the phrase "in pursuance of the law". When Congress enacted Section 1326 in 1952, it deleted that phrase from the statute.
Antonin Scalia: That would lead me to think that the FBI agent hypothetical would be covered. I just don't know how... you are willing to read something into the statute but--
Christopher J. Wright: Well, I am sorry, I am--
Antonin Scalia: --Once you are willing to read something into it, why aren't you willing to read as much as the respondent would?
Christopher J. Wright: --I am willing to read content into deportation, reentry into the United States following a deportation. Certainly if I grabbed someone and threw him out of the country, that is not a deportation, and it seems to me pretty simple to agree that an immigration judge ordering someone to be deported following by an actual deportation is a deportation, and that there is really not much to argue about on that.
Antonin Scalia: There is a lot to argue about. Whether some other federal official acting under color of law purporting to be acting officially puts somebody on a boat, whether that is a deportation, I would think it could be called a deportation. So you acknowledge that you are willing to read something into the statute. You say no, it is not anything, it has to be pursuant to the legal formalities before an immigration law judge, so you are not really as virtuous in this thing not reading anything into the statute as you brief makes out. It is just... the quarrel is really over just how much you are going to read into it. That is all.
Christopher J. Wright: Well, I guess we give some content to the term deportation. We don't think that it has to be a lawful deportation beyond those very simple requirements that I have stressed. I wish I had said that in the brief. I mentioned the fact that Congress deleted the phrase 1952. The ACLU filed an amicus brief contending that although Congress deleted that phrase it wanted to carry forward case law authorizing collateral attack. We showed in our reply brief that there was no such body of case law, but even if there were, deleting the language on which collateral attack would be based seems a most peculiar way to signal any intention to carry forward such a rule. The contrary conclusion, that Congress wanted to make clear that collateral attacks were not allowed, seems to me to be a much more reasonable reading of Congress's action. The dissenting judge in the Court of Appeals and the Second Circuit in its opinion in Potrella noted that Section 1105(a) makes it especially clear that collateral attack is not authorized. None of the Courts of Appeals that have allowed collateral attack have considered this provision. It was not clear under the 1952 Act whether deportations order could be appealed. This Court held in 1955 that review was provided in the Courts of Appeals under the Administrative Procedure Act. The lower courts approved other avenues for judicial review as well. Congress responded in 1961 by enacting Section 1105(a), which provides that appeal from the Board of Immigration Appeals to the Courts of Appeals is the "sole and exclusive procedure" for obtaining judicial review. That is an extraordinarily clear statement of Congress's intent. And it ought to be given force here. Furthermore, Congress provided two exceptions to its rule that appeal from the board to the Courts of Appeals is the sole and exclusive procedure, and one of those exceptions, Section 1105(a)(A)(6), which provides for pretrial review and criminal prosecutions for failure to depart from the United States following an order of deportation makes it clear that Congress was thinking about collateral attack in criminal prosecutions when it enacted Section 1105(a) and that it recognized that absent an exception Section 1105(a) would bar collateral attack on deportation proceedings in criminal prosecutions. But Congress made no exception for prosecutions under Section 1326. Therefore we think there is no such exception. I would like to note briefly that we don't think that there is any reason to construe Section 1326 contrary to its plain language and the language of Section 1105(a) to avoid a serious constitutional question. We think that those concerns were put to rest in Lewis, where the Court said that Congress could constitutionally focus on the fact of a prior proceeding and not its validity in denying a right to collateral attack. This case is not meaningfully different from Lewis because the prior proceeding was administrative. Collateral attack is only useful when the prior proceeding is flawed in some way, and a flawed judicial proceeding is no better than a flawed administrative proceeding, we don't think. In short, the respondents were deported and pulled when they were... first they were given the right to appeal and they waived that right. They were then given a form at the border telling them that they couldn't reenter the United States without obtaining the attorney general's permission, and that they would be subject to a felony prosecution if they did return. We don't think that there is anything unfair about denying them the... about saying that they waived the right to appeal by waiving. I would like to reserve the remainder of my time.
William H. Rehnquist: Thank you, Mr. Wright. We will hear now from you, Ms. Goudy.
Kathy Goudy: Mr. Chief Justice and may it please the Court, I am here to argue that a deportation order which has not been previously reviewed in a judicial forum in any way can be looked at by a court before it becomes the predicate for a criminal conviction. Such a review is permitted by the legislative history of Section 1326, the reentry after deportation statute, and it is also commensurate with the overall purpose of the Immigration and Nationalization Act. It is important to allow some procedure or format for such a review to determine whether the prior adjudication was after a full and adequate hearing. It is important to ensure that no gross miscarriage of justice occurred in that administrative hearing. And the only way to ensure that is to allow some examination of whether the applicable constitutional, statutory, and regulatory procedures were followed by the administrative judge.
William H. Rehnquist: Of course, the government says that clients like yours have an adequate opportunity to make that sort of a challenge if they just appeal from the order of the board or the immigration officer.
Kathy Goudy: In this particular case their rights of appeal ended within 48 hours after the hearing. The District--
Sandra Day O'Connor: Wasn't there a waiver, though? What has that got to do with it?
Kathy Goudy: --There was a waiver during the hearing. In this case the facts are pretty much intermeshed with the loss of their due process rights. The transcript which was provided the judge was unofficial. However, the tapes have been stipulated in of that hearing. When you listen to them you will hear that it is not like they are having the same conversation at all. The judge is saying one thing, the people are asking about bond. They are not following up on their questions when they try to enforce their rights. They don't--
William H. Rehnquist: Is that denial of due process to misunderstand the conversation between a judge and a litigant?
Kathy Goudy: --In this case it was found to be.
William H. Rehnquist: Well, do you say it is in this Court?
Kathy Goudy: When it goes to the extreme it did in this case, yes.
William H. Rehnquist: So even though they are given a right to appeal, you say they have still got to have this right to collaterally attack.
Kathy Goudy: The have a right to collaterally attack to determine if it was a serious violation of due process.
William H. Rehnquist: Even though they had the... they could have done that by appeal.
Kathy Goudy: Yes.
Sandra Day O'Connor: I thought we took this case on the assumption that the defect below was in the failure to adequately explain the possibility of suspension by the attorney general of the deportation.
Kathy Goudy: That was one of the findings of the court in the main findings of a due process violation because of the serious harm that fell from that. They should not have been placed over the border if--
Sandra Day O'Connor: It was my understanding that their right to appeal had been explained, and that no appeal was taken by those deported, by the respondents here.
Kathy Goudy: --There is some language in the opinion that the right to appeal kind of got meshed in with the rest of the conversation that was going on. They did waive their right to appeal.
Sandra Day O'Connor: Yes.
Kathy Goudy: And when they were placed across the border, any future right to appeal ended at that point under Section 1105(a).
Sandra Day O'Connor: Do you think that the failure to explain the right of... the possibility of suspension rises to the level of a gross miscarriage of justice as that term has been applied by this Court in earlier cases?
Kathy Goudy: In the facts of this case, because of the harm that was suffered by their failure to follow up on that suspension, yes, because they were... there is no further right to appeal that deportation. To reenter the country they would have to get a visa. They lost their meaningful time, what was it, seven years, to get the suspension of deportation. Under the new Act they lost their chance for amnesty for the five years. Because of the severity of the harm that occurred, yes, I do feel a gross miscarriage of justice occurred in their deportation hearing. What was filed in the District Court was a request for a procedural review of some sort of the actual deportation hearing. It was called alternatively a request for collateral attack, permission to bring up a collateral attack at the jury trial, and also a motion to suppress, in pursuant to Federal Rules of Criminal Procedure 12B. The thrust behind it was that it is impossible to learn if there is a gross miscarriage of justice unless there is some forum established to look at the facts, and that the criminal conviction must rest upon a lawful and adequate deportation order. The deportation in this order was found by the Court to be unreliable. The immigration judge had acknowledged their eligibility for suspension of deportation and failed to act on their request. Statute--
Antonin Scalia: I don't understand. That doesn't mean that they weren't properly found to be illegal aliens. It just means that they weren't advised of the possibility of their appealing for a discretionary waiver of their deportation, right? It as entirely within the grace of the attorney general whether he would grant that, isn't it?
Kathy Goudy: --Yes, the attorney general acting, too, as agent of the Immigration Service, yes.
Antonin Scalia: I mean, it isn't as though they were entitled to be kept in the country. They only thing that they weren't told about was the possibility of their asking the attorney general to let them stay in. And that is what rendered it fundamentally unfair.
Kathy Goudy: Not necessarily entitled. However, Congress has put in the suspension of deportation statute. It is a law that allows you if you have been here seven years, even though you entered illegally, to remain here if you show you have been of good moral character and that it would cause severe harm to--
Antonin Scalia: No, it doesn't allow you to stay. It allows the attorney general to allow you to stay if he wants to, doesn't it?
Kathy Goudy: --If the application were processed, that is correct.
Antonin Scalia: Yes. So, I mean, that is what I am having trouble with. Maybe there are some things that are fundamentally... that render a proceeding fundamentally unfair. If something happened which caused the judge to find them deportable when they really weren't deportable, that might be something else, but here really your only claim is, he should have told them that there was another avenue of discretionary relief that they might have pursued. Maybe he should have told them that, but I find it hard to say that that renders the deportation fundamentally unfair, and that is what you are arguing here. You are arguing a due process violation.
Kathy Goudy: I am arguing that the District Court should be allowed to review the facts of the deportation to see if there is a fundamental fairness. I am arguing whether they should be allowed to go back and look at the deportation at all.
Antonin Scalia: Well, you are arguing that and the fact that there was fundamental unfairness. We wouldn't even have to reach the other question if we didn't see this to be fundamental unfairness.
Kathy Goudy: Right, the fundamental unfairness was found to be severe in that they wouldn't have gone across the border if they had been allowed to apply for the discretionary relief. If they wouldn't have gone across the border an appeal could have been filed under 1105(a) under any of the formats available there. If they wouldn't have gone across the border, they might have their green cards today and be legal residents of the United States. And that was the substantial harm that was found that made that fundamentally unfair. They were told they had a right when they tried to ask questions in this mass hearing where there were 12 other defendants. Their questions weren't answered.
Antonin Scalia: I find that a queer use of language to say that the ability to ask for a favor is a right. I mean, you can call it you have a right to ask for a favor. Now, if you want to call that a right you can call it a right, I guess, but it doesn't sound like a right to me.
Kathy Goudy: Suspension of deportation is... it is a discretionary relief available if you can bring your evidence in sufficiently, but it is not a favor. If there is enough substantial harm to an American citizen that is a relative to you, and if you have met jumped through all the hoops necessary, it is something that they should discretionarily give you. It is something you have earned by seven years of good moral character in the United States, regardless--
Antonin Scalia: Reversing the attorney general for his denial of relief under that provision?
Kathy Goudy: --It is considered discretionary. They are very hard... they would be very hard to win it. I don't know the answer to that question. The government's position appears to be that Section 1326 should be read as not reading in the word "lawful" into the word "deportation". The language of 1326 when it uses the word "deportation" is ambiguous on its face. Deportation as defined in 1252 means a lot of different things. Deportation is the order to show case you are served with. Deportation is the hearing you have in front of the judge in which suspension of deportation is a secondary part. Deportation is the warrant that is signed after the hearing, and deportation is when you are finally placed across the border. It is entirely conceivable and happens in many cases that a person is deported and still here in the United States for many years on appeal of that deportation order. The legislative history of Section 1326 offers little credence to the government's position that Congress intended to allow any deportation, even an unlawful deportation, to be reviewed for its factual basis.
William H. Rehnquist: What is your response, Ms. Goudy, to the government's argument that Congress took out the word 1326, modifying the word "deportation"?
Kathy Goudy: It is not a complete explanation.
William H. Rehnquist: Yours isn't or theirs isn't?
Kathy Goudy: The government's isn't. The complete explanation would be that there were about four statutes all involving some form of criminal penalty for reentry after deportation. There was one for reentry of radicals, one for reentry of prostitutes, one for reentry of procurers, and one for kind of a general reentry statute. And they all got merged. There was a 1950 Senate report which was about the only discussion on this statute that is available in the legislative history, and in that--
William H. Rehnquist: Why do you need legislative history to tell you what it means when the statute at one time reads "deportation in pursuance of law" and then when Congress gets through amending it it no longer reads "in pursuance of law"? I would think that meaning is pretty clear without any legislative history.
Kathy Goudy: --For one thing, the statute that had 1326. It is not as if three words were extracted and the statutes match otherwise.
Antonin Scalia: Well, it was considered by the House committee, as I recall, to be the predecessor of it because in explaining to the full... I think it was the House, the full House what the changes being made were. They published that statute next to the new provision, so that committee at least thought that this was the one that the new provision was replacing.
Kathy Goudy: And the other statutes just sort of disappeared. There is an earlier report where they agreed to merge it in the Senate, the four statutes, just to make it a more cohesive and enforceable Act of law. Also, the "in pursuance of law"; all of them use different languages. Furthermore, the "in pursuance of law" was not deleted. It got moved to Section 1101(g), which also has some explanatory explanation about whether or not you are deported if you pay to go across the border or if the government pays your way across.
Christopher J. Wright: It certainly was deleted from what was formerly 1326.
Kathy Goudy: It wasn't formerly 1326. The reading of the statute doesn't match at all. The language is inapplicable... it it not inapplicable. The sense is the same in the section, but the language is so completely different. There were a lot of words that were deleted from there. There also is absolutely no legislative history of any kind to make it... to show that Congress explicitly meant to block any form of collateral attack, and because this is a criminal statute, an explicit intent to take away an individual's right has to be found in the legislative history before it can be interpreted.
William H. Rehnquist: What case of ours do you rely on for that?
Kathy Goudy: I am referring in general to the rule of lenity. I could obtain a case and submit it later if you wish.
William H. Rehnquist: You say this is a part of the rule of lenity that if Congress is going to make a criminal statute more severe that it previously had, it has to explicitly find that it it taking away something from a defendant or explicitly say so?
Kathy Goudy: No, that is not what I meant. What I meant was, is that if you are going to read negative connotations into a statute, there has to be some intent of Congress to show that those individual rights that are going to be taken away, the right to have some form of judicial review before being placed in jail, has to exist. If there is question in how you can interpret a statute and it can't be resolved by looking at the legislative history, it should be resolved in favor of the defendants. I would also... in conclusion what I want to state then is that what we asked for and was granted was some forum, some access to bring this hearing to the attention of a job, because how are you going to know if there was a gross miscarriage of justice unless you give a person some access in to have it reviewed? A right with no enforcement provision into it is illusory. Thank you.
William H. Rehnquist: Thank you, Ms. Goudy. Mr. Wright, you have three minutes remaining.
Christopher J. Wright: Thank you. I would like to make two points. One is that the immigration judge here clearly explained to respondents that they had the right to appeal or to accept his ruling or to reserve judgment. The District Court said that he thought to choose not to appeal was not a considered judgment, but the tape of the proceeding clearly shows that this was more than adequately explained. I would also like to make the point that under the statute at issue in Lewis, a person would not be convicted of a crime if four FBI agents hauled him into a barn and held a trial, and everyone would agree that that is not a conviction. The analogous sort of deportation--
John Paul Stevens: I imagine there are some people if you asked them whether an FBI agent points a gun at you and hauls you across the border, have you been deported, I think some people might say yes.
Christopher J. Wright: --We wouldn't. Thank you.
William H. Rehnquist: Thank you, Mr. Wright. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.