William H. Rehnquist: We'll hear argument first this morning in Number 95-1521, United States Department of State, Bureau of Consular Affairs v. Legal Assistance for Vietnamese Asylum Seekers, Inc.-- Mr. Kneedler.
Edwin S. Kneedler: Mr. Chief Justice and may it please the Court: This case involves a challenge to undertakings by the United States in connection with a comprehensive plan of action, an international agreement entered into by 50 countries in 1989 to address the migrant crisis in Southeast Asia in the 1980's. By 1989, 750,000 migrants from Vietnam alone had fled to other countries. Some countries began to turn back the migrants at sea, which resulted in a loss of life, and Hong Kong revoked its prior policy of treating the arrived migrants as presumptive refugees, and began to treat them instead as illegal aliens. The comprehensive plan of action, or CPA, was designed to diffuse this crisis, to protect those migrants who genuinely feared persecution, to save the loss of life, or to prevent the loss of life, and also to control further illegal immigration. Under the CPA, Vietnamese and Laotians were permitted to land in Hong Kong and other countries, and to seek refugee status there. Those who were screened in or found to be refugees under international standards and under the auspices of the UNHCR were permitted to remain temporarily and seek resettlement in third countries, but a central tenet of the CPA was those that were screened and found not to be refugees would be repatriated to their countries of origin. That would be either voluntarily, it was hoped, or if need be, eventually involuntarily.
Ruth Bader Ginsburg: Mr. Kneedler, may I ask you to clarify at the outset what the Government's position is with respect to the statement by the respondents that the respondents requested the State Department to seek from the Hong Kong Government an extension of the undertaking to process these people to cover the proceedings on remand, and that the Department refused, so that a remand would force the Hong Kong Government's undertaking to lapse and would likely subject respondents to immediate forcible repatriation.
Edwin S. Kneedler: Justice Ginsburg, I'm afraid there must have been some confusion. I'm informed by the State Department that the State Department did not refuse that. And I'm informed that last week there were discussions approaching the Government of Hong Kong about this. Those discussions again were taken up over the weekend, and just this morning we received from Hong Kong a letter in which Hong Kong... and I just received it. I've given it to opposing counsel, but we did not have time to transmit it to the Court this morning. In that letter, Hong Kong confirms a request made by the United States that the 24 Vietnamese migrants who are listed in an attached memorandum who are the plaintiffs in this case, and those of Lisa Le, basically the migrants for whom we previously had requested and obtained assurances, would not be repatriated before January 1997, January 31, 1997 or the completion of this case, whichever comes first.
Ruth Bader Ginsburg: I took that to be what you represented to this Court in your motion to join... in your response to the motion to join additional parties, because there you said that the Government obtained insurances from the Hong Kong Government that both the Lisa Le plaintiffs and the plaintiffs in this case would not be forcibly repatriated during appellate and Supreme Court proceedings.
Edwin S. Kneedler: Right.
Ruth Bader Ginsburg: So am I correct in saying the appellate proceedings would encompass whatever happens in the Lisa Le case in the D.C. Circuit?
Edwin S. Kneedler: On remand through January 31. The--
Ruth Bader Ginsburg: And this case on remand.
Edwin S. Kneedler: --And this case on remand. The Government of Hong Kong is understandably getting somewhat impatient and also, with the reversion of Hong Kong to China on June 30, the Government of Hong Kong is eager to have the return of the migrants completed and especially, given the recent enactment of section 633 of the Illegal Immigration Reform Act, which removes the statutory basis for the claim, the circumstances of this case have substantially changed, but yes--
Ruth Bader Ginsburg: But your view is... your representation is that it's January 30 or the termination of proceedings here and in the D.C. Circuit, whichever is earlier?
Edwin S. Kneedler: --That's correct.
Ruth Bader Ginsburg: The January 30 date or the termination of proceedings?
Edwin S. Kneedler: That's correct.
Antonin Scalia: That has been asked for, or that has been received?
Edwin S. Kneedler: It was requested--
Antonin Scalia: It was requested.
Edwin S. Kneedler: --and received this morning. We just received back a fax this morning from Hong Kong.
Antonin Scalia: Well, if we-- --Saying that the Hong Kong Government has agreed to that?
Edwin S. Kneedler: Yes.
Anthony M. Kennedy: And if we were to vacate and remand, would you have objection to the D.C. Court entering a stay based on those terms?
Edwin S. Kneedler: A stay in this case, a stay is not necessary because no injunction was ever entered in this case. The district court granted summary judgment for the Government and the court of appeals remanded for further proceedings consistent with its decision. In the--
Anthony M. Kennedy: But if we were to vacate and remand, what would the situation be?
Edwin S. Kneedler: --The situation would be, pursuant to these representations, Hong Kong would not involuntarily repatriate anyone in this case or the Lisa Le case before January 31 unless the case was earlier terminated.
Ruth Bader Ginsburg: The D.C. Circuit had not earlier entered a stay, is that correct?
Edwin S. Kneedler: In the Lisa Le case it did, because the district court in the Lisa Le case had entered injunctions based on the panel's ruling in this case. The district court in that case entered a series of injunctions which... the D.C. Circuit for a month declined a stay. We filed a stay application here, and then when that stay application was ripe for consideration the D.C. Circuit entered a stay and the... I think the representations we previously had obtained from Hong Kong were perhaps instrumental in that stay.
Antonin Scalia: A stay of what? It certainly wasn't a stay of Hong Kong's deportation--
Edwin S. Kneedler: No, a stay--
Antonin Scalia: --I think our writ doesn't run that far yet, does it?
Edwin S. Kneedler: --Right. No. It was a stay of the injunctions requiring... preventing the State Department from declining to process the visa applications of Hong Kong, and basically the stay plus Hong Kong's assurances maintains the status quo. Of course, the... that representation does not prevent anyone from voluntarily repatriating. We're only talking about involuntary repatriations.
David H. Souter: Mr. Kneedler, as long as we've gotten into facts, may I ask you about the Government's position on one other factual issue which I'm not sure of? The respondents, as I recall, made the representation... this goes to the merits of their claim... that with respect to refugees who had been screened out who were in Hong Kong from other countries than Vietnam, the United States continues to, or has, I guess, never refused to process immigrant visa applications, and that it is only those from Vietnam who have been the subject of this policy pursuant to this agreement. And I... that interests me because it seems to be a response to the Government's position that in fact the reason for the Government's action is not the nationality of the plaintiffs but the illegality of their status, and the respondents are saying there are plenty of others with equally illegal status, but if they are from a different country they are being treated differently. Is that... is the respondent's claim factually correct, as you understand it?
Edwin S. Kneedler: Well, the... let me explain it this way. The basis for the Government's policy is that persons who are screened out under the CPA must return to their country of origin rather than applying in the country of first asylum.
David H. Souter: Does the CPA cover anything other than Vietnamese refugees?
Edwin S. Kneedler: It also covers Laotians.
David H. Souter: Laotians.
Edwin S. Kneedler: But in Hong Kong it's true the vast majority, in fact virtually all of the migrants subject to the CPA in Hong Kong are from Vietnam, but the... this was... this is a situation in which, in fact, there are no other aliens similarly situated to those covered by the CPA. The CPA was a unique but perhaps precedent-setting international agreement to address migrant crisis of a sort of that the world is unfortunately very familiar with over the last 3 or 4 years.
David H. Souter: You're saying the class, save for Vietnamese and Laotians, is an empty class.
Edwin S. Kneedler: Well, yes, because the CPA was entered into to address a migrant crisis that was itself country-specific, and it--
David H. Souter: Right, but I think if I understand your answer, it is there are no refugees from other countries than Vietnam and Laos in Hong Kong who have been screened out and who are applying for immigrant visa status. There are no such individuals, is that correct?
Edwin S. Kneedler: --Under the CPA, that's correct.
David H. Souter: Well, not under the CPA.
Edwin S. Kneedler: I--
David H. Souter: Regardless of the CPA. They're either there or they're not there. Are there any such making applications?
Edwin S. Kneedler: --I frankly cannot represent whether there are people from other... from other countries besides Vietnam and Laos. This agreement was--
Ruth Bader Ginsburg: This class includes only those people.
Edwin S. Kneedler: --Yes.
Ruth Bader Ginsburg: The CPA doesn't apply, and you wouldn't be following that with respect to--
Edwin S. Kneedler: Right.
Ruth Bader Ginsburg: --nationals from any countries--
Edwin S. Kneedler: That's correct. The predicate for the application of this policy is the CPA in which the United States and other countries undertook as a way of... let me be clear about this. The CPA is a comprehensive agreement that has a number of parts to it, and the central part was, in order to get the countries of first asylum to allow people to land in the first place, they had to have some assurance of a screening opportunity and those found to be refugees would be resettled. But an important corollary is, those found not to be refugees would be returned, and that... but the people found not to be refugees includes those who happen to have current visa petitions filed on behalf of them in the United States and others, and the United States, in consultation with UNHCR and other countries of first asylum, concluded that it was essential to carrying out the CPA to maintain that with respect to those migrants who were covered by the CPA. Again, this was a problem migrant crisis-specific agreement, country-specific agreement, and in the conduct of foreign relations and addressing migrant crises.
William H. Rehnquist: --So the CPA arose as a result out of massive migration of Vietnamese and Laotians--
Edwin S. Kneedler: That's correct.
William H. Rehnquist: --and not anybody else?
Edwin S. Kneedler: That's correct, and it was that problem the CPA addressed, and we think it would be odd indeed if the United States in its conduct of foreign relations, where it can treat different nations differently for legitimate foreign policy concerns, could not also treat the nationals of those different nations differently depending on the circumstances that have arisen in the bilateral or unilateral... I mean, multilateral arrangements, and also just in the real world taking account of what has caused the outflow of migrants. Most migrant crises are country-specific, resulting from the internal conditions of a particular country.
Sandra Day O'Connor: Mr. Kneedler, in the proceedings below, as I understand the record, the Government argued that there was discrimination against Vietnamese nationals but it could be justified on a rational basis, and as I understand the argument made by the Government now is, there was no discrimination at all. And on a secondary point, I think the record discloses that in the courts below the Government did not argue that the language of the statute referring to issuance of a visa did not include accepting a visa application. Were either of these arguments raised by the Government below?
Edwin S. Kneedler: Well, in... going to the second one first for the moment, the... we did argue that... I think the argument that respondents make is that we did not argue that the question of consular venue is separately addressed and exclusively addressed by 8 U.S.C. 1202(a), which says that a person shall apply for a visa in such locations as the Secretary shall prescribe by regulation. But we certainly did argue that this was... that 1152(a)(1), which bars preference or priority or discrimination in the issuance of visas, did not apply to consular venue, and the argument that consular venue is separately addressed by 1202(a) is just a further argument in support of our basic claim that the... that 1152(a)(1) did not apply to this at all. And in fact what we did argue in the court of appeals is that the regulation that the Secretary issued, which changed on appeal and the court of appeals applied the amended regulation on appeal, that that was issued pursuant, as we point out in our brief, to the very specific authority in 1202(a), which is the consular venue statutory provision. So we think all these arguments were presented.
Sandra Day O'Connor: How about the discrimination point?
Edwin S. Kneedler: In the lower court we argued that this was... that this was not discrimination, at least that's my understanding, and also that... but beyond that the position here that this... that... I don't know if one calls it justification, or it's not discrimination, that you can look at it either way, that discrimination is a conclusion that encompasses whatever justifications may be offered for the policy, or that it's not discrimination in the first place. If the question just focused on whether there were distinctions, then the statute would use distinctions, but it uses the word discrimination, which I think we would view as being a conclusion, and read into that should be, particularly on something like consular venue, the ability of the United States to take into account nationality considerations. As we point out in our brief, when Congress enacted this provision in 1965, it had long been the policy of the United States before then and since then, for example, to adopt special procedures for security purposes for aliens from particular nations, from communist bloc countries for a while, and as the... there's a declaration cited at page 17 of our... of the petition that describes that history and describes what was before Congress in 1965. I think that goes to both... to actually two points, that 1152(a)(1), the nondiscrimination provision, didn't apply to the applications for visas in the first place, but even if it did. Congress couldn't have not... could not have meant to absolutely prohibit the... irrespective of the justification the taking into account of nationality in the processing, in the procedures for the filing, the venue, and the review of visa applications, that the nondiscrimination provision was really intended from the outset to apply only to the allocation of visas.
Sandra Day O'Connor: Let me ask you one more question. The Government now urges us to vacate and remand because of the very recent amendment to section 1152(a)(1). Does that recent amendment cover all of the respondent's claims? Didn't they make constitution--
Edwin S. Kneedler: They did.
Sandra Day O'Connor: --Constitutional arguments and other things that haven't been addressed by the Court and that might not be covered by--
Edwin S. Kneedler: Right. They made two further arguments. First of all, in the statutory argument, as we said in our brief, the recent amendment we think is dispositive, and one more piece of information on that I'd like to call the Court's attention to. At page 21 of respondent's brief in footnote 13 they cite a letter that was sent to the... by 45 Members of Congress to the President in early August urging the President to drop his support for the provision of the bill that was ultimately enacted in 6... as 633 that was then in conference, 45 Members of Congress, and they said apparently those provisions were included in the House and Senate bills at the behest of the State Department in order to overturn the adverse result of the LAVAS decision, so it's entirely clear that the Members of Congress when considering this provision, when it finally emerged from conference, knew that it was proposed for the purpose of and would have the effect of overturning the decision.
William H. Rehnquist: --Mr. Kneedler, the respondents here have sought only injunctive and declarative relief, haven't they?
Edwin S. Kneedler: That's correct.
William H. Rehnquist: They did... they've not sought damages.
Edwin S. Kneedler: No, that's correct, and we think it's clear, quite aside from this legislative history making clear that this was intended to apply to this very situation, the usual principles governing prospective relief would make clear that it's effective prospectively.
Sandra Day O'Connor: Well, the respondents have come back and said, oh, but we also want reparative injunctive relief looking to the past. Do you know what that's all about?
Edwin S. Kneedler: Well, not entirely, because it would seem to us that any injunctive relief in this case would direct the Secretary of State to provide for the issuance of visas in Hong Kong in the future, and that's the very reason why prospective relief cannot be granted if it would be in conflict with a new statute, and the conference and House reports on this legislation say that it was just intended to clarify the fact that the Secretary of State has unreviewable authority to establish visa venue rules, so it's clear that Congress was ratifying the Secretary's interpretation of the statute and intended to maintain the status quo. In fact, the text of 633 says that nothing in this paragraph... meaning 1152(a)(1)... shall be construed to prohibit the Secretary from establishing procedures for the filing of applications. Respondents are asking this Court to construe 1152(a)(1) in a way that would apply to bar the Secretary from doing exactly that, so it seems to me the statute speaks directly to what this Court is being asked to do. I'd like--
Ruth Bader Ginsburg: Mr. Kneedler, with respect to the two issues that were not decided by the D.C. Circuit, they haven't been considered, and you concede that they are--
Edwin S. Kneedler: --Right.
Ruth Bader Ginsburg: --in the case and would be ripe for consideration, but the case... this case and Lisa Le both raising the same questions but going on different tracks are somewhat confusing, disorderly. What's the Government's plan for proceeding should we grant your request to vacate and remand to the D.C. Circuit for reconsideration in light of the very recent legislative change?
Edwin S. Kneedler: Excuse me. I... we would seek an expeditious response in the lower court. Whether that would involve presenting the whole matter to the full court or waiting for the panel to rule would be a different... a question we would have to discuss.
Ruth Bader Ginsburg: Currently you have a panel in this case and an en banc court in Lisa Le.
Edwin S. Kneedler: Right, that is correct. Now, there is... we recognize the confusion, and there is something to be said, we acknowledge, for this Court going ahead and deciding the case now that it's been briefed and argued and presented to it. Our suggestion of a remand in this case all along, however, was based on this Court's usual course when there's been an intervening change in the law and also when other issues are in the case that haven't been addressed. I would like briefly to address those two other issues, getting back to Justice O'Connor's question on them. The first of the other two claims is one that the policy is arbitrary and capricious, in violation of the Administrative Procedure Act. There are two problems with that. The first is that judicial review of that claim is precluded, as was judicial review of the statutory claim, and that is itself true for two reasons. One, the comprehensive judicial review provisions of the INA establish that review is precluded under the INA, or, excuse me, under the APA, and also visa matters, including consular venue matters, are of the sort traditionally committed to agency discretion, and therefore barred... judicial review is barred for that reason as well. With respect to the preclusion of review, I would just like to point out that the INA contains provisions for judicial review of deportation orders of people who've entered the United States, and also for judicial review of people who are seeking to enter the United States, but in the latter category, only when somebody has arrived at our shores and is in exclusion proceedings and can seek review in habeas corpus, but not because exclusion matters are generally appropriate for judicial review, but because the person is in custody, and therefore has access to habeas corpus. In this Court's decision in Brownell v. Tom We Shung in 1956, the Court held that an alien in the United States could have access to the APA to seek judicial review in an exclusion matter, but the Court pointed out it was not suggesting, of course, that an alien who had never reached our shores would be able to do that, and it also cited legislative history of the '52 act in which an exclusive review provision was deleted in which the... in which Congress made clear that it was not providing for review of consular officer decisions, or changing review under the INA. Then in 1961, Congress came along and specifically overturned the Brownell decision, and provided for judicial review in exclusion only... in exclusion matters only in habeas corpus, and not otherwise, intending to remove the APA, the very basis on which respondents seek to bring a challenge in this case. And in fact the Court... we spell this out at pages 25 to 28 of our brief, and in fact the House report on that legislation says that permitting an APA suit would "give recognition to a fallacious doctrine that an alien has a right to enter this country which he may litigate in the courts of the United States against the U.S. Government as a defendant. " Well, if that was true with respect to aliens who had reached our shores, then a fortiori would be true with respect to aliens who are in Hong Kong who have no rights under the United States Constitution with respect to their admission and no statutory rights that they can invoke in court. But even if this Court were somehow to get around the preclusion of judicial review, we think the respondent's APA claim would fail on the merits. This is certainly not an arbitrary and capricious policy. The explanation is spelled out at pages 217 to 219 of the Joint Appendix in this case, in which the cable that went to the field in October of 1994 explains that this policy was reinstated after a careful review, after concerns were received from UNHCR and other first... and first asylum countries that screening or processing immigrant visas in Hong Kong and other first asylum countries was discouraging people from returning voluntarily and therefore was seriously undermining the comprehensive plan of action. The State Department also pointed out that since 1990, when it had adopted the opposite view, it believed that conditions in Vietnam had improved, and therefore it was appropriate to insist that people return there before filing for visas to come to the U.S.--
Ruth Bader Ginsburg: Mr. Kneedler, are you aware of any case that... where questions such as these were raised below, not touched there, and where this Court responded to them as... not as a court of review but the only court to pass on them?
Edwin S. Kneedler: --Not specifically. The Court surely has the power to do it, and we don't deny that, and frankly we believe the other two claims can be very readily disposed of, and so we... that's one of the reasons why on remand we would expect the court of appeals to readily dispose of the claims. The court of appeals itself, for example, applied the change in the regulation on appeal, even though the respondents were invoking claims under the prior regulation, on the theory that no one has a vested right in receiving a visa, and if there's a change in the law, that should be applied. We would expect the court to do that. In fact, we would expect Congress understood, knowing the LAVAS decision, that that would be the rule and it's change in the law would be applied. That's another piece of information. But specifically, no, but we understand that the Court has the power. If there are no further questions--
John Paul Stevens: May I just ask one question, Mr. Kneedler, is it still the Government's primary submission, though, that we should simply GBR at this time, rather than addressing these issues?
Edwin S. Kneedler: --Yes, that would be our--
John Paul Stevens: It is.
Edwin S. Kneedler: --That's our primary submission.
William H. Rehnquist: Thank you, Mr. Kneedler. Mr. Wolf, we'll hear from you.
Daniel Wolf: Mr. Chief Justice, and may it please the Court: There are two issues that must be resolved in favor of affirmance in order to... in favor of respondents in order to affirm this case. The first issue is whether the statute, section 1152(a)(1), was violated by the Department's policy when that policy was in existence and before the new statute came along. The second issue is whether the change instituted on September 30, 1996 deprives respondents of the right to relief.
David H. Souter: What is the relief... if you were to win on the first issue as you have described it, what would your relief be?
Daniel Wolf: Well, the relief that we would suggest, Justice Souter, is relief... reparative relief, relief that could, insofar as is possible, restore plaintiffs to the position that they would have been in were it not for the Department's illegal conduct. So for instance, in the case of somebody who had been--
David H. Souter: Well, do you concede that if the statute in fact was intended to be retroactive, that relief would be impossible?
Daniel Wolf: --If the statute was intended to be retroactive, that relief would be impossible, but there's nothing in the language of the statute indicating any retroactive intent, and under this Court's decision in Landgraf, a new law cannot be applied retroactively to conduct predating its enactment if that conduct was illegal, so the new law cannot reach back and render lawful conduct that was unlawful at the time that conduct was... took place, and certainly we are... respondents are entitled to relief that would remedy the effects of the illegal conduct.
William H. Rehnquist: But what you're asking... you still haven't gotten the final judgment in this case, and what you're asking for is some sort of a declaration or injunction that the Secretary may not require repatriation from Hong Kong in order to process visas. Now, the traditional view is that we apply the law in effect when the... when our Court decides a case, or the court of appeals applies the law when it... in effect when it decides it. If the law in effect now is that your clients are not entitled to any statutory relief, I don't see where your idea of reparative relief goes anywhere in the light of the new statute.
Daniel Wolf: Mr. Chief Justice, first just to clarify the type of relief that we're seeking, we're seeking an order mandating the processing and the expeditious processing in Hong Kong of our clients' visa applications, not an order that would have anything to do with enforceable repatriation, per se.
William H. Rehnquist: But if under presently enforced law you're not entitled to that, the fact that you might have been entitled to it a year ago is something that a court ordinarily won't recognize.
Daniel Wolf: Well, certainly, were the statute to be one that prohibited this Court from issuing an injunction or from granting the... granting respondents the relief they're seeking, then that would be correct, but the situation here is that respondents had a substantive right to be... to not be discriminated against--
William H. Rehnquist: Well, what do you mean by a substantive right?
Daniel Wolf: --Well, we had... at the time we had an expectation, a reasonable expectation that we would not be discriminated against in the issuance of a visa. Under Landsgraf, the new statute cannot reach back and make determinations--
William H. Rehnquist: Well, that's true if you're seeking damages, but just... your whole effort here was prospective.
Daniel Wolf: --The principle of nonretroact... of the principle concerning retroactivity applies, as I understand it, regardless of the type of relief that's being sought. The point is, is that this Court has the power to remedy the past effects of the illegal conduct, so there's nothing to prevent this Court from restoring respondents to the situation they would have been in were it not for the illegal conduct.
David H. Souter: But I think you have conceded that we don't have that power if, number 1, you are not seeking damages, and you're not, and number 2, the statute is in fact to be applied retroactively. On those two assumptions, there's nothing we or any court could do, even on your own premise, but apply the new statute, and that would be the end of the case.
Daniel Wolf: Justice Souter, that's correct if the statute were to be applied retroactively.
David H. Souter: So everything turns on the retroactivity of the statute.
Daniel Wolf: But Mr.--
David H. Souter: And why should that be decided in the court of appeals where normally the first cut at an issue like that is, of course, not taken in this Court?
Daniel Wolf: --Well, I would say that there are two reasons in this particular case. The first reason is a concern regarding forcible repatriation. The Department has received certain representations from the Hong Kong Government that lapsed on January 31, 1997. Given the proceedings in this case and the pace that it has gone at, we can't be confident that on remand we would be able to get relief after the appellate process and so on before the lapse of that time. The processing itself takes several weeks.
Ruth Bader Ginsburg: Mr. Wolf, the D.C. Circuit was prepared to hear the Lisa Le case en banc on September 19 and deferred that only because the proceeding was pending here. Why would you not think that they would proceed expeditiously were we to vacate and remand?
Daniel Wolf: Well, it's uncertain how the D.C. Circuit would handle this case. They may send it first back to the district court, in which case we would have to have proceedings before the district court, come back up--
Ruth Bader Ginsburg: Under what possible scenario would they send it back to the district court when it is the decision of the three-judge panel that is the problem, not the initial... the district court was just following the orders that the three-judge panel gave.
Daniel Wolf: --Well, Justice Ginsburg, that gets me to the next point about why a remand would be inappropriate in this case, and that is is that nothing about the change in statute alters the fact that the Department's conduct was illegal at the time that conduct took place. Respondents should not have to go back to the D.C. Circuit and relitigate that issue on remand. A much more appropriate disposition in this case--
Ruth Bader Ginsburg: D.C. Circuit was poised to litigate it en banc.
Daniel Wolf: --The D.C. Circuit was poised to litigate it--
Ruth Bader Ginsburg: And the fact that the cert petition was granted and heard doesn't make what the D.C. Circuit was intending to do any less appropriate than when the D.C. Circuit ordered it.
Daniel Wolf: --Well, for the same reasons, Justice Ginsburg, that it may be improvident for this Court to retain the certiorari petition as we indicated in our supplemental brief, it may also be improvident for the court of appeals for the D.C. Circuit en banc to retain... to consider this case yet again on all of the issues--
Ruth Bader Ginsburg: Why yet again? The very fact that the D.C. Circuit agreed to hear the case en banc is a signal, is it not, that the Court was quite divided and was not content to let it rest with the panel decision?
Daniel Wolf: --It was a signal that the Court viewed it as a serious question, as this Court's granting of certiorari is such a signal, but for the same reason that this Court might want to relinquish this case, the D.C. Circuit en banc could do well the same. At any--
Ruth Bader Ginsburg: Mr. Wolf, I have an unrelated question. It has to do with the latest submission. You represented in the supplemental brief that a remand of the case would cause the Hong Kong Government's undertaking to lapse and would likely subject respondents to immediate forcible repatriation. That's a rather startling representation, and when I looked back at the pleading that wasn't even printed for this Court, it was the Government's response to your motion to joint parties, and I saw when I read to Mr. Kneedler that the Government represented that they would obtain... had obtained assurances from the Hong Kong Government that no one would be forcibly repatriated during the appellate and Supreme Court proceedings in this case and in the Lisa Le case, what was the basis for the rather attention-grabbing representation you made in view of the Government's representation that conflicted with it?
Daniel Wolf: --Well, Justice Ginsburg, we were not clear, based on that statement about whether or not the representation would include representations made on... would include the situation on remand. We spoke with Government counsel to ask whether they would make further... get further representations from the Hong Kong Government. We were left certainly with the clear impression that that was not going to happen, and--
Ruth Bader Ginsburg: Before alleging to this Court that it would cause immediate repatriation, do you not think it would have been appropriate to let us know that the Government had something quite... said something quite the contrary, had represented to this Court that no one was going to be repatriated pending the proceedings here and in Lisa Le?
Daniel Wolf: --Well, as I indicated, Justice Ginsburg, we believed there to be some ambiguity, significant ambiguity in that statement. We checked with the Government. Apparently they believed there to be enough ambiguity to go back to the Hong Kong Government, which they never told us they were going to do, and that ended up being the situation as it exists today.
Ruth Bader Ginsburg: It was described in rather definite terms that the Department refused, and that the... that would cause... I mean, you didn't put anything... you didn't indicate to us that anything was at all ambiguous.
Daniel Wolf: I did not understand it at the time to be ambiguous. If it indicate... if it was ambiguous, I regret that I... that we put it in those terms, but at the time I did not see there to be any ambiguity. As I understood the representation--
Ruth Bader Ginsburg: This is not ambiguous, but you just said to me that, well, you thought that that might be the problem, and you were well aware that the Government had already represented to this Court that no one would be repatriated until this Court and the D.C. Circuit were completed, proceedings were completed.
Daniel Wolf: --As I said, as I understood the representations at the time, they only applied to the Supreme Court proceedings and the appellates court in Lisa Le, and if it may have been my misunderstanding, I would apologize for that. The Department's... this Court certainly has the power to remedy the past illegal conduct, and there's nothing in section 1152(a)(1) which deprives respondents of a remedy in this case, and therefore, if a violation occurred prior to the enactment of the new law, then this Court certainly could offer respondents, or the lower courts could certainly give respondents the relief that they are seeking, and the rule is no different in the case of an interpretive statute, or statute--
William H. Rehnquist: Well, Mr. Wolf, supposing somebody comes into court and says, up until 1994 I was entitled to receive a certain amount of money as a pension, but I realize... this is 1996... now Congress has said that that no longer obtains, but I just want a declaratory judgment that I might have received it had I applied in 1994, now, would a court grant that sort of a thing?
Daniel Wolf: --Perhaps not, but in this particular case, taking your hypothetical, if the person had applied for pension benefits in '94, been denied on illegal grounds in '94, and then in '96 the law changed, the individual would still be entitled to receive the pension benefits for '94, or injunctive order granting the benefits.
Antonin Scalia: What would be the possible conceivable meaning of the Congress' provision that the new statute applies to all cases filed after a certain date? Isn't that the way the provision in the new law is worded?
Daniel Wolf: No, Justice Scalia.
Antonin Scalia: How do we know what cases the new law applies to?
Daniel Wolf: The new law states what it states. It's a one sentence provision saying nothing in section 1152... it's nothing in the former paragraph, meaning 1152(a)(1), shall be interpreted as limiting the authority--
Antonin Scalia: But there's an effective date provision for the legislation too, isn't there?
Daniel Wolf: --There is an effective date provision, that's correct.
Antonin Scalia: And what does that say?
Daniel Wolf: There are various different effective date provisions. There are 12 provisions that are specifically retroactive. This is not one of them.
Antonin Scalia: How does this one read?
Daniel Wolf: I'm not sure, Justice Scalia, whether there's a... we checked, and I didn't recall seeing a default retroactive provision, but I believe the statute becomes effective on the date that it is enacted for... as the default provision, and to that degree it is certainly the case that should the Department today institute a policy refusing to process visa applications on... and discriminating in that process on grounds of race, nationality, or sex, then a person would not be able to obtain relief and would have no right to obtain relief.
Antonin Scalia: I had thought that it had said all cases filed after a certain date, in which case your argument wouldn't make any sense, because that obviously means, regardless of what the situation might have been on the facts, if your case is filed after a certain date, the new law applies. Otherwise, it wouldn't make any sense.
Daniel Wolf: This partic... in our particular case, what... the important retroactive event is the Secretary's determination, refusing to process immigrant visa applications at a time when he was required to do so. There is nothing in the statute indicating that the... indicating that the statute was intended to retroactively legalize conduct which was unlawful at the time.
John Paul Stevens: Yes, but I have a little trouble with the language because your basic position is, as I understood the briefs correctly, is that 1152(a)(1) should be construed as a limitation on the authority of the Secretary.
Daniel Wolf: Section 11... yes, that's correct.
John Paul Stevens: But then as amended it says, nothing in this paragraph shall be construed to limit the authority of the Secretary, so forth and so on. So if we were to decide the case, your basic submission, we would either have to say that something in 1152(a)(1) limits the authority of the Secretary, or it doesn't.
Daniel Wolf: Well, I would say that the answer to that question, Justice Stevens, is provided for in Roadway Express, where the... this Court stated that the fact that a statute may... the Congress often enacts statutes that purports to interpret what a provision means and tells a court how to interpret what a provision means, but that does not make the statute any the more retroactive than any other type of congressional enactment.
John Paul Stevens: No, but you're still asking us to construe a statute in a way directly contrary to the way Congress has told us we should construe it.
Daniel Wolf: Well, with respect to what happened before--
John Paul Stevens: It doesn't say... there's no time limit. It just talks about people who are going to construe this statute, and you're asking us to construe this statute.
Daniel Wolf: --Well, I'm asking... what I'm saying is that in Roadway Express the Court specifically adopted a very similar type of statute that informed the Court as to how the statute should be construed. The Court stated that that did not apply to conduct that had predated the statute. In other words, the statute cannot make lawful what was unlawful--
Ruth Bader Ginsburg: Mr. Wolf, are you saying there is no such thing as a clarifying amendment? Here we had a sharp division in the D.C. Circuit, excellent opinions on both sides saying what the judges thought this statute meant, and Congress then came in and said we think that the dissent had it right about what the statute meant. That's a clarifying amendment. So whether that controls us, and I agree with you it doesn't, it is the Congress saying we think that the statue did and should mean what the dissenting judge thought it meant.
Daniel Wolf: --Which, Justice Ginsburg, is exactly what happened in Roadway Express. I mean, certainly the Congress could inform this Court--
John Paul Stevens: Did you cite Roadway Express in your papers?
Daniel Wolf: --Yes. It's cited in the supplemental brief.
John Paul Stevens: In the supplemental brief. Mr. Wolf, two things occur to me. One is the point you've just been discussing with Justice Ginsburg, which is that conceivably the amendment by Congress should assist the courts in determining the meaning of the statute as it was originally enacted. That is possible. Secondly, what the respondents are seeking ultimately is issuance of visas. Now, that hasn't occurred as yet, and if the Court were to order the Department of State to issue visas, that relief is prospective, and as I understand it, we have held that an amendment like this would apply to the issuance of that prospective relief. I don't think there's any way to avoid that by trying to look backwards and say, well, the statute meant something else at the time. The relief, nonetheless, is prospective, and would appear to be governed by the new provisions of the statute.
Daniel Wolf: Taking the first of your... taking the first part of your question first, as this Court indicated in Rusello, the interpretations of a future... of a new Congress are hazardous grounds upon which to base interpretations of a previous Congress. With respect to the second part of your question, certainly injunctive relief like all relief, compensatory damages, operates in the future, but there's nothing that prevent... that in this statute deprives the Court of the power to remedy a past violation of the wrong. In all of the cases that... in which... to which I believe you're referring, Justice O'Connor, the statute specifically eliminated a remedy, but in our case there's nothing in section 633 that eliminates a remedy. It simply informs the Court of how Congress would like the Court to construe the statute, but if Congress wanted the Court... wanted to apply that retroactively, the uniform decisions of this Court are that it must say so expressly, and there is nothing in section 633 that does that.
Sandra Day O'Connor: My point was not that, but rather that the statute applies prospectively and would govern the issuance of prospective relief.
Daniel Wolf: The... well, this Court has also held in numerous occasions, Justice O'Connor, that if Congress wants to take away a remedy, that it also must do so expressly, and again, there's nothing about section 633 that takes away a remedy. It simply informs this Court of how the statute should be construed, and that is why I think River Express is dispositive on this point. With respect to the issue of whether or not--
William H. Rehnquist: Well, but if you take the surrounding legislative history it's perfectly clear that Congress intended to disapprove the decision of the court of appeals in this case, is it not?
Daniel Wolf: --Well, even in Roadway Express the Court mentioned... stated that even if Congress disapproves of a previous opinion, that doesn't mean that it's retroactive, and the only expressions of legislative intent that we've seen really are two statements of Congressmen who are opposed to the bill, which also this Court has--
William H. Rehnquist: Which you cite in your brief.
Daniel Wolf: --Which the Department cites in its brief.
William H. Rehnquist: Well, I thought you cited it in your brief, too, didn't you at footnote 13?
Daniel Wolf: Oh, that was a letter previous to the enactment of the bill. Those comments--
William H. Rehnquist: Where you say, having recently become aware of the obscure provision 45 Congressmen, including 13 Members of the House... sent a letter to the President August 1 expressing the view that the court of appeals' interpretation of 1152(a)(1) was correct.
Daniel Wolf: --Mm-hmm Well, that's correct. That's correct, and the fact that, as I indicated, the fact that Congress may have a view as to whether a particular decision is correct or incorrect doesn't answer the question as to whether or not the statute is retroactive. With respect to the issue of whether or not the Department's policy is discriminatory and violated section 1152(a)(1) at the time, section 1152(a)(1) prohibits... provides that no person shall be discriminated against in the issuance of an immigrant visa on the basis of race, sex, and nationality. Section 1152(a)(1) therefore places nationality on the same footing as race and gender and prohibits discrimination with respect to all in the issuance of an immigrant visa. This policy is facially discriminatory. If a French person or a Chinese person is in Hong Kong and has been screened out, they can go to the U.S. Consulate, or could, prior to the change in the law, go to the U.S. Consulate and have their visa processed, but if that person was a Vietnamese national, and they were screened out or illegally in Hong Kong, they could not. They'd have to go back to Vietnam to have their visas issued and processed. Now, the Department argues that the fact that this policy took place in the context of the CPA, and the unique circumstances facing the Vietnamese refugee crisis at the time justified its illegal policy. And then the Department makes this sort of funny argument that justification and discrimination are the same thing. But this Court has never considered just... discrimination and justification as one question. They're two separate questions. The first question is, does the policy... is the policy facially discriminatory? Does it draw an explicit distinction between Vietnamese nationals and Laotian nationals, if Laotian nationals are in fact covered, and the nationals of other countries, and the answer to that must be yes. The second question then is, does the policy... is the policy justified? Is there a compelling interest for the policy? What is the rationalization for the policy? But the statute prohibits discrimination in the issuance of a visa, and does not allow exceptions for the rational basis that the Department prefers, and the Department's argument at any rate with respect to the comprehensive plan of action--
Antonin Scalia: In order to tell whether there's been discrimination, don't you have to first determine whether the two people are similarly situated? Doesn't that determination go into... necessarily go into the question of discrimination or not?
Daniel Wolf: --Well, it seems to me that the statute places race, sex, and nationality as a category, and therefore that... therefore you cannot dis... you cannot differentiate between races, between genders. The statute describes that. Let me give an example. Think about the... of course, the Court's classic decisions in Hirabayashi and Korematsu. The Court specifically in Hirabayashi said, well, Japanese Americans are not similarly situated to other Americans. Well, that didn't mean it wasn't discriminatory. The Department--
Stephen G. Breyer: But do you think when Congress passed this statute, did it have in mind refusing to allow the State Department to carry on the ordinary country-by-country distinctions that it makes in conducting foreign policy? I mean, it might have done.
Daniel Wolf: --Well, Justice Breyer--
Stephen G. Breyer: But I mean, is there any evidence that it did?
Daniel Wolf: --Justice Breyer, there's no specific legislative history of this provision. I would say that the statute says what it says, no person shall be discriminated against--
Stephen G. Breyer: Well, all right, it says what it says. Isn't all foreign policy discriminatory by nations? We treat some nations one way, we treat other nations another way. All foreign policy runs that way. Now, maybe this was to be an exception from ordinary foreign policy, but should we assume that that was so?
Daniel Wolf: --Well, I... the language says what it says, and the courts should construe the language as it says it. Now, the Department--
Stephen G. Breyer: Well, if it says what it says, wouldn't we normally assume that what it had in mind was the kind of discrimination forbidding that kind of discrimination that did exist in Korematsu--
Daniel Wolf: --Well, in--
Stephen G. Breyer: --but not the kind of discrimination that is consistent with ordinary foreign policy, treating one nation differently from another?
Daniel Wolf: --It seems doubtful to me, Justice Breyer, because the statute prohibits discrimination, and discrimination is a different concept than the rationalization for the particular conduct at issue. Even the Department does not maintain under the statute the mere rational basis for its conduct would justify these particular types of distinctions.
John Paul Stevens: May I ask you just a factual question? Perhaps I should know this, but supposing there were a Vietnamese who had been a long-time resident of Hong Kong, that he was not one of the boat people, could he be... could he apply for a visa in Hong Kong?
Daniel Wolf: If a Vietnamese was not a boat person?
John Paul Stevens: Yes.
Daniel Wolf: Well, there are a number of Vietnamese who came by bus, and--
John Paul Stevens: No, say he's lived there for the last 20 years.
Daniel Wolf: --Oh, certainly. Certainly. A Vietnamese boat person who was lawfully resident--
John Paul Stevens: No, not a boat... I say, a Vietnamese. If that's true, then it doesn't seem to me the discrimination is on the basis of nationality.
Daniel Wolf: --Well, Justice Stevens, if you take two people, two nationals in the same circumstances, one a Vietnamese who has been denied refugee status, one French who have been denied refugee status, the French person can walk into the consulate, get their visa, the Vietnamese person cannot. That seems to me to be facially discriminatory.
John Paul Stevens: But are you assuming the French person is also... came as a... was one of these migrants on the... in this... one of the boat people?
Daniel Wolf: Well, Justice Stevens, I can't see how the fact that somebody came by boat or by plane would--
John Paul Stevens: Well, it's whether he comes within the terms of the CPA or not.
Daniel Wolf: --Well, with respect to the CPA again, that issue seems to me to go to the rational basis, to the justification for the conduct, not to the classification of the conduct.
John Paul Stevens: Well, but the classifica... the class does not include all Vietnamese. It includes a subcategory of Vietnamese who fit into the CPA category.
Daniel Wolf: Yes, but with respect to the same subcategories of other countries, such as the same subcategory of French, the Vietnamese would be treated differently. Now, it is true that Vietnamese are under the rubric of the comprehensive plan of action, but the plan... comprehensive plan of action is addressed only to Vietnamese.
Ruth Bader Ginsburg: But Mr. Wolf, doesn't... haven't you already shown why this is worlds different from Korematsu? Because Korematsu applied to people who were citizens of the United States just as much as it applied to someone who had just reached the shore. So it was a blanket policy, and you, by giving the answer that a resident of Hong Kong from Vietnam who had been there for awhile, was not involved in this urgent departure, would be treated like the Frenchman.
Daniel Wolf: Well, Justice Ginsburg, actually, as I recall in Korematsu and Hirabayashi, at at least one particular time the classification only applied to Japanese on the West Coast who were rounded up and placed into relocation centers, so the fact that it didn't also apply... might not have also applied to Japanese on the East Coast would not have rendered the classification there any the less discriminatory, so in terms of the issue of whether this is discriminatory, there really should be no question. With respect to the CPA argument anyway, it appears to be purely pretextual. At pages 116 and 117 of the Joint Appendix, the Department was inquiring... received an inquiry from its consulate as to whether or not the processing of a screened-out boat person would violate the CPA. The Department said that to require such a boat person to return to Vietnam to have their visas processed was procedural overkill and not at all necessary to the integrity of the CPA and, in fact, during 4 years of the CPA's existence, from 1989 to 1993, the Department processed visa applications in Hong Kong, and the Department processes visa applications in Hong Kong of nationals from other countries such as Great Britain, England... from Great Britain, from Hong Kong itself, from Australia... so all of these visas are being processed in Hong Kong. It's hard to understand why this violates the CPA. It seems to me that the Department's argument with respect to the CPA--
Antonin Scalia: Well, it would certainly encourage more people to come out if they know once they get in Hong Kong, where they have safe refuge, they can apply for a visa to the United States from there. I thought that's the purpose of the State Department's policy--
Daniel Wolf: --Well, Justice Scalia--
Antonin Scalia: --to discourage people from coming out.
Daniel Wolf: --Justice Scalia, that gets directly to my point, that the Department seems to be confusing the justification for its policy with the issue of whether or not the policy is a discriminatory one, and--
William H. Rehnquist: Isn't there something to what Mr. Kneedler said, that you know, discrimination in one sense... you say someone has a discriminating taste. It can be a compliment. It simply means you can distinguish between different things. Invidious discrimination is something else. But to say that you have to draw... you can draw a bright line between the concept of discrimination and the term justification, I don't think is necessarily true.
Daniel Wolf: --Well, it seems to me that it's a line, Chief Justice Rehnquist, that this Court has drawn in numerous cases in the equal protection context, in the context of numerous statutes that prohibit discrimination, and in view of... Congress certainly was aware of how this Court interprets the meaning of discrimination when it passed the statute in 1965, and there's no reason to interpret this statute--
William H. Rehnquist: Thank you, Mr. Wolf. Mr. Kneedler, you have 4 minutes remaining.
Edwin S. Kneedler: Several points, Mr. Chief Justice. First of all, in Landgraf this Court said when the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive, so analytically the question here is not one of retroactivity, since prospective relief is being asked for, and that's what the Court is being asked to do. This statute specifically speaks to what a court should do, whether a court can construe 1152(a)(1) to prohibit the Secretary from establishing locations for the processing of visas, as Justice Stevens mentioned.
Ruth Bader Ginsburg: But Mr. Kneedler, to the extent that this is like a venue provision where you can have this processed, if Congress changes a venue rule while a case is in a tribunal, I assume the case would not have to be dismissed at midstream, that unless Congress said otherwise, the venue that was proper when the case was initiated would stay.
Edwin S. Kneedler: But that would be... that would I think be not upset... I mean, again, that would be a question of statutory construction, it would not be a question of an injunctive action. It would be a question of a rule of procedure to be applied in an ongoing case much like Landgraf, speaking to what a court has to do, has to decide at the time it's deciding a particular issue in a case. At the time the court decides venue, it decides venue, and the statute shouldn't reach back and change that. This statute is not retroactive in the sense that people who got visas in 1993 during the interim period when the State Department had a contrary view, will have those visas taken away and be sent back to Hong Kong. This is entirely prospective, and if there was any doubt about Congress' intent that this governed this case, the letter from the 45 Members of Congress said that the amendment would overturn the adverse result in LAVAS. The State Department's letter said it's amendment was intended to reverse the decision in LAVAS. Representative Smith said it was an attempt to overrule LAVAS, and Representative Conyers said it would have the immediate effect of requiring two dozen Vietnamese, precisely these two dozen Vietnamese in Hong Kong, to return to Vietnam. There was no doubt that Congress intended and expected this to apply to this case. With respect to the question of discrimination, this only covers people who were screened out under the CPA. Screened out is a term of art under international refugee matters, applying it here to this international agreement. It doesn't apply to other people who may be in Hong Kong like a Vietnamese national who may have gotten there in other ways. Also, as the Chief Justice pointed out, this is not invidious discrimination by any means. The United... Vietnamese have been the beneficiaries of United States immigration policy over the last 15 years to an extent that few other countries have matched: 1.2 million Vietnamese have entered the United States, including 400,000 who have departed from Vietnam during the orderly departure process. There is no way that this policy can be regarded as invidious discrimination against Vietnamese. It is designed to implement valid foreign policy. My last point is that the discussion in this case is... we think underscores why this sort of case doesn't belong in court to begin with. This is a case challenging foreign policy and migration policy halfway around the world in a suit brought by aliens in a foreign country objecting to the way in which their visas are being processed in a foreign country, a classic matter for which judicial review is precluded, and has traditionally been committed to agency discretion by law. And that rule cannot be circumvented by having a U.S. citizen who happens to have applied for a visa petition to file his or her own suit in U.S. courts. The Immigration Act makes clear that the visa petitioner's interest in a matter such as this is simply filing the visa petition and having the Attorney General determine whether the beneficiary of the visa petition would be entitled to a visa preference. Once that happens, the U.S. person's interest in the matter lapses. There is no further interest. The alien abroad is accorded a preference and stands entirely on his own or her own with respect to whether there will be any admission to the United States. In fact, the nondiscrimination provision invoked here speaks in terms of discrimination or preferences with respect to the alien abroad. It confers no rights on a U.S. citizen in the United States. So with respect to both respondent's APA claim and the statutory claim, review is precluded.
William H. Rehnquist: Thank you, Mr. Kneedler.
Edwin S. Kneedler: Thank you.
William H. Rehnquist: The case is submitted.


Earl Warren: Number 36, Hubert L. Will, Judge, United States district court for the Northern District of Illinois, petitioner versus the United States. Mr. Posner, you may continue with your argument.
Richard A. Posner: Mr. Chief Justice, may it please the Court. Yesterday afternoon the discussion centered on the jurisdictional issue relating to the powers of the Courts of Appeals to issue writs of mandamus at the behest of the government in criminal cases. And unless there are further questions on that phase of the case, I'd like to turn my attention to the issue on the merits, and that is the propriety of Judge Will's ruling in this case that the government must turn over to the defense, a list of the names and addresses of all individuals to whom the defendant had made statements relating to the crime.
Speaker: I'd like to ask you a question. Did I understand you to say that the indictment in this case has been dismissed by the Judge [Inaudible] there would have been no appeal by the government?
Richard A. Posner: I didn't -- I didn't address myself to that question. Petitioner's counsel mentioned the Apex case, which does -- a Ninth Circuit case I believe, which holds that the only, the government may only appeal the dismissal of an indictment when the reason for the dismissal has to do with the validity of the indictment. While the issue has not been authoritatively resolved by, has not been addressed by this Court, I think the government at least tacitly accepts the Apex principle and would not attempt to appeal a dismissal for failure to comply with the judge's order.
William J. Brennan, Jr.: [Inaudible]
Richard A. Posner: Correct, yes.
William J. Brennan, Jr.: That kind of dismissal would not come within the expediting items?
Richard A. Posner: You mean in terms of direct appeal to this Court?
William J. Brennan, Jr.: Yeah.
Richard A. Posner: No, that would only be where the issues are of statutory construction.
William J. Brennan, Jr.: -- it would have to be the Court of Appeals.
Richard A. Posner: Yes, but even there the, there is this view that no appeal lies unless the validity of the indictment itself is questioned. Now, to us the essential point as to the propriety of the Judge Will's ruling is that the Federal Criminal Rule simply do not contain any authority for this kind of disclosure of the government's case. Now, two years ago when the federal rules were extensively revised in this area of discovery, it was urged upon the revisers that many of the principles of civil discovery be carried into the criminal sphere, and specifically that a list of witnesses that the government intended to call be furnished to the defense in advance of trial and the revisers declined to make that change and you will find --
Abe Fortas: Well, Mr. Posner wasn't that proposal in terms of mandatory provision that the judge shouldn't make that available unless the witness is available with some exceptions for security reasons or accepting -- excluding instances where the judge had some affirmative reason for not turning over particular names that is to say the proposal was not in terms of granting or denying the judge's discretion, am I -- is my recollection correct?
Richard A. Posner: I think I believe that's how it read, but I think that Judge Will has adopted a policy of routinely making this information available to the defense rather than requiring any showing of particular need on the part of the defense.
Abe Fortas: Are you suggesting that the issue before us is not whether it was ever to order a disclosure in this case, but whether Judge Will is wrong in what is alleged to be a routine practice of disclosing names? Can we pass on anything other than the order of disclosure in this particular case?
Richard A. Posner: We contend that the order is erroneous insofar as it does reflect a practice of routinely making -- ordering these disclosures without regard to the circumstances of the particular case. Had Judge Will found something special in the facts here, had the defense argued that there was something special in the facts here, which required disclosure of this information that would be a different case.
Abe Fortas: Well may I suggest that your argument maybe that the record here fails to disclose an adequate reason for the order of disclosure in this particular case. I must say to you, as I indicated yesterday, that I have the greatest difficulty in considering statements to the effect that judge ought to be -- we ought to use mandamus really to discipline a Judge with respect to a general practice, the details and the circumstances of which we don't have before us in the sense that they're not in this record and I think it's a very serious thing, it's a very drastic thing that you're asking us to do in the absence of what I would regard as adequate information?
Richard A. Posner: Well, without reopening that issue completely, I note that in the La Buy case in 352 United States, a major statement of this Court as to the function of mandamus, the Court in noting that mandamus should be resorted to only in extreme cases went on to say, and I'm quoting the Supreme Court, “There is an end of patience and it clearly appears that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references does not commend itself. And the court goes on to point out that in 1942 and subsequent occasions the court had rebuked, Court of Appeals had rebuked the district court. It emphasizes the fact that the particular judge involved in that case had referred 11 cases to masters in the past six years.
Abe Fortas: Are you suggesting that we have a comparable basis here?
Richard A. Posner: Well Judge Will himself --
Abe Fortas: That the Court of Appeals -- has the Court of Appeals rebuked Judge Will in other cases? Has Judge Will refused to comply with a directive or an indicated position by the Court of Appeals?
Richard A. Posner: Judge Will states in one of the colloquies in this case, and this is in the record that is, this is perhaps the 50th time in which he has had occasion to make this kind of order of disclosure, which the government views as unauthorized and we think --
Abe Fortas: Well, the government views that but we don't have the circumstance before us, maybe in every one of those 50 cases, if we pass the jurisdictional point, beside that he has jurisdiction into this so far as we know maybe, in every one of those 50 cases he had an adequate and indeed compelling reason to do that?
Richard A. Posner: Yes, but I think the essential point is that in Judge Will's view of this area, he does not require that any special reason to be shown for this kind disclosure. He regards this as a routine matter that anyone who has been present either at the commission of the crime or when the defendant was talking about the crime has a right to -- that all those names must be disclosed and as I say --
Byron R. White: Mr. Posner, do you think it's contrary to the present criminal rules for a judge to say that I'm going to do this every time unless the government shows some special reason why it shouldn't be done?
Richard A. Posner: Yes, I believe it is contrary. The only basis in the federal rules for disclosure of a witness' name is if it is necessary to comply with a proper request for a bill of particular. There's no discovery mechanism as such by which --
Byron R. White: What do you -- are you going to talk about what the -- what the case is around the Court of Appeals, the district courts -- what those cases hold in regard to the function of the bill of particulars with respect to the names of witnesses?
Richard A. Posner: Yes, the cases which petitioner cites, number of cases for the proposition that this a common practice almost invariably concern the situation that was presented in the Roviaro case where the crime itself has, the -- an essential participant in the crime has been a government informant. Government informant has purchased the narcotics or has furnished the stolen property to the defendant. In those circumstances where the informant, the government witnesses at the very center of the crime itself, many courts have made that name available to the defense.
Byron R. White: What is the function of a bill of particular in the government's view?
Richard A. Posner: We view it as, apart from any function it may have with relation to the double jeopardy clause, its purpose is to enable the defense, to the defendant to prepare defense and present a defense without unfair surprise. That has been held to require that if, for example, as in the Roviaro case, the indictment states that the crime is the sale of narcotics to John Doe, not otherwise identified the name of that witness, of that not necessarily witness, the name of that participant in the crime should be available to the defendant at least in some cases, so that he can prepare a defense.
Byron R. White: Prepare a defense by talking to the fellow?
Richard A. Posner: Talking to him or interviewing him, or perhaps to find out what actual circumstances there were.
Byron R. White: Well if the government is going to use a witness to whom the defendant has spoken at some time before the trial, why wouldn't the same reason apply in terms of the function of bill of particulars as applies in the Roviaro versus United States?
Richard A. Posner: Well, I think the Roviaro rule and other decisions, which have authorized disclosure, strike a balance between two significant interests. One is the defendant's interest in preparing his case and the other, a very important interest in the government's view, is that of the confidentially of informants. Now in this -- in a case like this the issue arises in this fashion, in intern--
Byron R. White: No one suggested, if the government came in and said that that isn't involved in this case, but if the government came in and said, there is a special reason why we don't want to give the name of this person, why -- I suppose the judge could not make you give his name and of course if you are going to use him as a witness, you are going to surface him anyway.
Richard A. Posner: This is not, the problem here is not that of the informant that the government wants to keep confidential for use in subsequent cases nor is the problem a, the kind of problem which the government can ordinarily furnish special reason. The problem is this in internal revenue case, that very often the government learns violations of the income tax laws through friends, or acquaintances, or former employees, or other associates of the defendant, who come forward with this information either out of public sense of public duty or because there is a bounty for this kind of information. Now these people then will often furnish not only lease, but very important evidence of admissions at the trial, evidence which is highly material on the issue of willfulness. If a person has been bragging to his friend or acquaintance that his skill in outwitting the internal revenue service, that individual's testimony of this admission will be highly material in adjudging the willfulness of the violation. Now if the names of those individuals are available to the defendant, there is a danger which the service believes is a substantial one, that the defendant will appeal directly or indirectly to the friendship or sympathy of these individuals or in some cases there maybe elements of bribery involved to shade the testimony or to develop a lapse of memory when it comes to the trial or otherwise change their testimony. This is a -- dangers of this sort are the historical reason why discovery in criminal cases has been very limited, the fear that--
Abe Fortas: But then there is also the reason advanced against discovery in civil cases for years and years and over the years Mr. Posner--
Richard A. Posner: Yes.
Abe Fortas: Would your argument apply equally to a criminal prosecution of somebody for a tax fraud or for Securities Act violation or that sort of thing? There too the government takes the same position, doesn't it, against a --
Richard A. Posner: This is a tax fraud case.
Abe Fortas: This is a tax fraud case, that's right. Well is this – you'd make no distinction between this and an organized crime case?
Richard A. Posner: The danger of which I am speaking here is not the danger of rubbing out witnesses, that is a danger in another areas, the narcotics area, it is a danger of distortion and fabrication --
Abe Fortas: Well, isn't it true that in criminal cases, the defendant and his counsel generally know some of the witnesses anyway or have a pretty good idea as to who some of the witnesses will be. Now has the department reason to suspect if there is a widespread subordination of perjury in this country or widespread rubbing out of witnesses or whatever--?
Richard A. Posner: No, I am talking rubbing out in –
Abe Fortas: Well, whatever you are talking about—
Richard A. Posner: --the tax context I am talking of--
Abe Fortas: Okay, now the other reason to believe that presently anything of that sort is going on despite the obvious fact that defendants and their counsel will be aware of most of the witnesses and most of the probable witnesses without any disclosure on your part?
Richard A. Posner: They are not likely to be aware of what -- assuming that the defendant has made statements, admissions to a number of people, he will not know whether they are going to testify against him, whether they turned state's evidence or anything of that sort. Now the distinction has been urged, continues to be urged between civil and criminal cases in this regard on the basis of the greater stakes from the defendant standpoint in a criminal case. But I don't mean to suggest that this is a correct view, that it should be paramount to the defendant's right to prepare a defense. But all these issues were laid before the revisers of the criminal rules two years ago, the same argument I am suggesting here was made and the Court or the advisory committee in Congress declined to establish any broad rule of discovery. And to us that suggests that if a defendant is to obtain the names of perspective witnesses, he must make some special showing that that is necessary to help him prepare his defense. He is not routinely entitled to that information because it does expose the witnesses to potential harassment --
Byron R. White: But again going back to the bill of particulars Mr. Postner, isn't it, rather easy to articulate this kind of a rule that Judge Will has in terms of the function of the bill of particulars?
Richard A. Posner: Well, since the function of bill of particulars is to enable the defendant to prepare his defense without fear of undue surprise.
Byron R. White: I would think it's rather important for him to know, in preparing his defense what the critical testimony will be against him?
Richard A. Posner: That rationale would permit the courts, permit a district court under the rubric of bill of particular to compel complete discovery, the purpose of discovery.
Byron R. White: It maybe one thing to say that we are only going to have depositions, compulsory depositions in limited -- in some circumstances, but another thing is they would -- that the defendant should have the opportunity at least to talk to them, witnesses don't need to talk to defendants, they don't want to, do they?
Richard A. Posner: No. Well, I think it could be defended as a legitimate extension of the existing rules, but I think the court has declined to make those -- I note in this respect -- I should point out that the advisory committee's note to the revised rule 7 (f), the bill of particulars note, mentions what it calls a wise use of the district judge's discretion in granting bills of particulars by Mr. Justice Whittaker then a district judge in the Smith case and there Judge Whittaker while disclosing -- while directing government to disclose various facets of its case, declined to direct the furnishing of a list of witnesses. And again the champions of liberalized criminal discovery during the period of this rule's revision urged the revisers to make avail -- to require or authorize a witness list, again to allow the defendant to talk to the witnesses even if not perhaps to depose again it was rejected.
Byron R. White: Don't you agree that bill of particulars has a different function in criminal cases and in civil?
Richard A. Posner: Yes, I think the bill of particular, in a system in which you have no discovery or a very limited discovery, a bill of particulars is necessary to--
Byron R. White: I mean it's not just to clarify what the charge is, what the indictment --
Richard A. Posner: Right it is to furnish some additional information to enable them to -- here I mention--
Byron R. White: You concede -- the government concedes this function of the bill of particulars in our system under our rules under our system?
Richard A. Posner: To furnish necessary information beyond the indictment --
Byron R. White: To prepare a defense?
Richard A. Posner: To prepare a defense, correct. I mentioned that in this case the government did disclose in answer to the request for particulars, a very large amount of information, including for example the specific items of receipt, which the government contends were fraudulently not reported on the income tax return and the names of customers who will testify that their payments to the defendant were not reported.
Byron R. White: Did Judge Will's order go beyond those people whom you were going to use as witnesses, it did, isn't it?
Richard A. Posner: Yes.
Byron R. White: So that required you to name people whom you didn't intend to use as witnesses perhaps for some other reason?
Richard A. Posner: Yes, any individual.
Byron R. White: I don't – do you make some special objection to that, that would cover your any kind of an informant whether he wanted to keep them secret or not?
Richard A. Posner: That that the breadth of that is certainly an additional distressing factor. I don't know whether in this particular case, there's such an individual, an informant we would want to be using in the future. Again our position mean that the burden of showing the special circumstances is the defendant's rather than the government's.
Earl Warren: Mr. Posner, if we decide with the government in this case, would it be a question for the government that having an authority to have an appeal whenever it disagrees with an order of discovery or an order for a bill of particulars.
Richard A. Posner: No, not at all.
Earl Warren: Would you tell me why please?
Richard A. Posner: In the civil sphere --
Earl Warren: Well, I'm talking about the criminal.
Richard A. Posner: Right, yes I was going to suggest that in both areas, mandamus has been regarded as proper only in exceptional circumstances, and the circumstances here that we view as exceptional --
Earl Warren: Yes, but you would claim, you could claim it was exceptional and cause the delay to a trial that was caused in this one. I notice in this case that the court -- the trial court made its order on the October 3 and this order of the Court of Appeals and mandamus came on October 4, 1966, 10 months later and the trial, there were no action in the trial between those dates.
Richard A. Posner: I think the Judge's order was in March, the actual --
Earl Warren: I thought the --
Richard A. Posner: The initial order to grant particulars was in October --
Earl Warren: The initial order --
Richard A. Posner: -- then proceedings in the district court concerning this --
Earl Warren: The initial order that the government objected to as I read the briefs --
Richard A. Posner: Yeah.
Earl Warren: -- is in -- was in October 1965, is that right?
Richard A. Posner: Yes, I'm just suggesting after --
Earl Warren: There's no action in the trial after that and here the order of mandamus was October 4, 1966 and now what I'm trying to find out is that if we decide with the government in this case, is that procedure open to the government anytime the government wants to allege that the order of the trial court in discovery or for a bill of particulars were beyond his jurisdiction.
Richard A. Posner: Well, I assume that if the government brought a mandamus proceeding that had no reasonable foundation and that it was a tactic of delay that the Court of Appeals and the trial court would prevent the government from thereafter going forward with the trial. There are I think ample protective devices to prevent tactics of delay. In the government's view, these mandamus proceedings are appropriate only in very unusual cases.
Earl Warren: Yeah, but you'd allege it was unusual in the case --
Richard A. Posner: Yes, but Mr. Chief Justice if we alleged, if we made such an -- if we brought a frivolous mandamus proceeding, I should think it would be fully appropriate for the district court to dismiss the indictment for failure to prosecute or for denial of the Sixth Amendment right to a speedy trial. I don't think there's, I don't think there is a danger that the government were still minded would be permitted to abuse this device in order to delay criminal trials. The number of cases --
Earl Warren: We'd have to review the discretion of the trial court in dismissing it, would we or do you say --?
Richard A. Posner: Of course there are ways that that --
Earl Warren: Or do you say that there's no appeal from that?
Richard A. Posner: In answer to Mr. Justice Harlan I suggested that probably there is no appeal from a dismissal of an indictment that does not, is not, does not rest on the invalidity of the indictment.
Earl Warren: Mr. Silets?
Harvey M. Silets: Mr. Chief Justice, may it please the Court. First in response to the inquiry by the -- Mr. Chief Justice, the petitioner would agree that in every instance where the government in good faith felt that the order of the district court, an interlocutory order was improper that they could effectively cause a delay by seeking the extraordinary writ of mandamus. We don't suggest that in this case that the government was acting in bad faith.
Earl Warren: No, nor did I.
Harvey M. Silets: No, but the net effect what has happened is that is going to be at least two years before the case can go to the merits. Now I suggested yesterday what would happen in the situation if the defendant were imprisoned or waiting in his trial. The government has acted in good faith here. We don't suggest to the contrary, but we believe that if this court fails to set forth some standards that in a criminal case what would happen would be the opening of the floodgates as was stated last term in the Switzerland Cheese case.
Earl Warren: I've intended to ask Mr. Posner, but I forgot it, I'll ask you. What is there in this case that enables us to say from the opinion of the Court of Appeals that this was an extraordinary case that would invoke jurisdiction?
Harvey M. Silets: First, Mr. Chief Justice, there was no opinion.
Earl Warren: That's right.
Harvey M. Silets: We don't know what prompted the Court of Appeals to act as it did. Secondly, we suggest that this was not extraordinary at all. This Court has consistently said that the extraordinary writ should be reserved for really extraordinary situations. One can hardly think of a more common place situation than the granting of the bill of particulars. And moreover the type of particulars that were granted here that is the disclosure of the names of some potential witnesses is also a commonplace situation. This Court in at least two cases has indicated that the bill of particulars was a method by which potential witnesses could be disclosed. As a matter of fact in the Roviaro case, this Court said that the name of the informant could be obtained by the use of the bill of particulars and if the government didn't want to furnish it, the recourse of the court would be to dismiss the indictment.
Abe Fortas: If the government did voluntarily give you the names of some persons who have knowledge of the facts, is that --?
Harvey M. Silets: Not, voluntarily Mr. Justice Fortas, but by order of the court under the bill of particulars but it's --
Abe Fortas: Well, I suppose then I'd have to take the position that they did it voluntarily, they did it because they wanted to, not because they thought they were under legal compulsion?
Harvey M. Silets: Well, in light of this proceeding where they feel that they don't have to take the -- and I would agree.
Abe Fortas: Yes, so what it come, what it may come down to is that the government says the government as prosecutor can decide which names it will give you, but that the trial judge as judge does not have that power?
Harvey M. Silets: Precisely.
Abe Fortas: -- that or that, the second line is that in this particular case that was wrongly exercised, so I understand they're arguing both.
Harvey M. Silets: I would agree that what they're suggesting here is that the ultimate decision of whether the particulars will be answered lies with the government and not with the court.
Earl Warren: I'm wondering if in view of the facts of this case where on the original hearing in the Court of Appeals, the same panel decided in favor of the trial judge and then on a motion for rehearing without any hearing of any kind reversed itself and granted the writ of mandamus without any opinion if we have any fair opportunity here to appraise the facts that lead to that and I'm wondering if the proper thing in this case wouldn't be to vacate the judgment, send it back to the Court of Appeals, and ask them to make the necessary findings and set the standards or what would constitute proper action in mandamus.
Harvey M. Silets: That is a possibility Mr. Chief Justice, but we suggest that even in the framework of the record as it stands now, the nature of the particular offense charged that is that this is not a charge of income tax evasion, this is a charge of willfully making a false return under the penalties of perjury, not believing the contents of that return to be true. It's in the nature of a written perjury. The government is frank to admit now that here are admissions by the defendant concerning this willfulness reflecting upon the proposition of whether in fact he had perjured himself. We can't think of any clear situation where a court would say that this – the names of people to whom he's made those statements in the framework of this kind of case is not appropriate. This is the most appropriate situation in terms of this bill of particulars, if I may have one more minute Mr. Chief Justice.
Earl Warren: Yes.
Harvey M. Silets: In response to the inquiry by Mr. Justice Fortas, we suggest that he's correct that the mere fact that there is what the government suggests a routine here, which we don't concede, by Mr. – by Judge Will to furnish these of kind or particulars is not the basis for this Court to rule in this case. This Court must rule within the framework of these facts in this case. This is precisely what the Court took some pains to do in La Buy case. In La Buy, this Court went in precise details about the exceptional circumstances in the case that came before this Court. We suggest in the ultimate, if it please the Court, that if the government is permitted to use the extraordinary writ in the situation that the floodgates would open, that the entire trial of cases and criminal cases would be open to speculation, the defendants would be hard-put to proceed, that the government would have it within its power whether the grant of -- to answer a bill of particulars or not. And then finally on the merits of this particular case that Judge Will was within his discretion, within his jurisdiction to grant the particulars in question. Thank you.