Warren E. Burger: We'll hear arguments next in number 71-708, Trafficante against Metropolitan Life and others. Mr. Bomse, you may proceed.
Stephen V. Bomse: Mr. Chief Justice and may it please the Court. The issue which we confront here today is whether tenants at a large, privately owned apartment complex have standing to challenge practices of racial discrimination by their landlord, under writ of the 1968 Civil Rights Act, Title 8 thereof or 42 U.S.C, Section 1982, the statute principally interpreted by this Court in its 1968 decision of Jones against Maya. The petitioners here are both Negro and White residents of Parkmerced, a 3500 unit apartment complex in San Francisco, California. They filed a lawsuit under Title 8 and under 1982 alleging that Parkmerced was generally responsible for practices condemned by both of those statutes and refusing occupancy there to members of the Negro race, and other minority races. Their action was against the landlords responsible for that discrimination. Motions to dismiss were made in the District Court on a variety of grounds and the Court granted those motions, limited however to the question of standing which is before this Court today. The case then went to the Ninth Circuit Courts of Appeals where the decision of the District Court was affirmed again, limited solely to the question of standing. We sought certiorari and that was granted. It is our submission today that the decision below should be reversed and the petitioners held to have standing. In view of the language of the relevant statutes, the clear policies which they embody and the national commitment which I think, none of us would reasonably again say minimize to eliminate racial discrimination from housing not only because that of itself is a crucial problem to our nation today, but because it quite clearly infects our national life in a variety of other circumstances. To recall only the most obvious one, the terribly divisive national controversy over busing has mean to culminating, segregation, and separation of the races in the schools. It's in large part a product of the fact that the races in this country leave apart. That fact has been too well documented to really be disputed here. It's been documented by the United States Civil Rights Commission in its notion that we are indeed moving towards two societies, they are not speaking, really in a social or any in tangible sense, we live apart. So what is an issue here is whether the commitment which petitioners submit is embodied in the laws and issue Title 8 of 1982, is going to be broadly or narrowly upheld. We submit it should be the former. We trust that any inquiry on the question of standing begins, at least some members of this Court would suggest ends with the question of whether there is injury in fact. That is a test which at least as I read the cases is the constitutional or Article 3 cases in controversy. But I don't think that there is a great dispute here over injury. This Court has noted in the numerous recent cases, including most recently Sierra Club against Morton, that their interest be on mere economic ones which merit judicial protection. In Sierra Club, the Court referred to the environmental questions there in issue as an important ingredient of the quality of life in our society. It's language which was also used in a very well reasoned opinion of the Third Circuit, involving Title 8 in part Shannon versus HUD in which the Third Circuit suggested that the persons who neither are going to be displaced nor live-in in a federally low funded housing area would nonetheless have standing to challenge what was obviously going to disintegrate the quality of their neighborhood because of the effect which those practices had upon the quality of their daily life. Here, the petitioners submit that being compelled as a result of the defendant's practices to continue to live in Parkmerced under an unlawful condition to segregation constitutes a very real injury to the quality of their daily life, an injury which we submit undeniably merits protection. In an effort to flush out the rather bare bones allegations or complaint, which course must be taken as true in the posture of this case, we submitted in the District Court, and it is part of the record here, an affidavit of Dr. Alvin Poussaint, the Associate Dean of the Harvard Medical School. Dr. Poussaint whose clinical practices have been quite broad in this area, suggests indeed the persons living in an environment such as Parkmerced or any environment that is artificially segregated, suffer real injuries, injuries which may or may not lead to clinical symptoms, injuries which may or may not result in personal damage, even economic damage, but injuries which nonetheless are very (Inaudible)
Harry A. Blackmun: Would you suggest them that persons living in North-West Arkansas, where there is present on only one race are suffering deprivations of the kind you are suggesting?
Stephen V. Bomse: I don't think I can answer them Mr. Justice in the abstract. We would suggest that there is no right under the constitution or at least none has yet been recognized by this Court, per se, to live in any integrated environment. The only right we're asserting here is the right to live in an environment which is not artificially segregated as the result of practices affirmatively proscribed under Title 8 and 1982. Now if your question goes to the issue of whether or not a person in Arkansas might have standing to challenge practice of racial discrimination at Parkmerced, I would suggest no, unless on some set of facts which I cannot hypothesize, he could allege the type of individualized grievance injury which the statue in question were intended to protect.
Harry A. Blackmun: Well, I read your Doctor Expert’s affidavit and it seemed to me it would be applicable to the Eskimo who lives only among Eskimos or someone living in the heart of Africa living only among blacks?
Stephen V. Bomse: There are of course injuries which the constitution and the laws are simply powerless to readdress. Under our system some people are rich, some are poor, some are black, some are white, those are not things which the province of the law and neither the concern is here. The only question is if injuries result as the result of practice which are prescribed by Federal Law shouldn't the person who are injured have a forum in which they seek redress for those and that's the only issue which is involved here.
Harry A. Blackmun: Now that I have already interrupted you, there is a companion cases that are not involved in those who allegedly were denied entrance to Parkmerced?
Stephen V. Bomse: There is another case in which --
Harry A. Blackmun: What is the status of that case?
Stephen V. Bomse: That case is now pending before the District Court, it is in the discovery phase of the litigation.
Harry A. Blackmun: They were not instituted simultaneously?
Stephen V. Bomse: No, they were not instituted simultaneously at all. The plaintiff's counsel in the two cases are the same as has been pointed out. The issue that goes beyond the mere question of injury is are these plaintiffs, these petitioners, proper parties to challenge, to seek redress for the injuries that they suffered under Title 8. It may indeed be a concept as we have noted of zone of interest if that test applies. Reviewability of that event test which I understand to be a minority view on this Court as this point applies. It may indeed that for under the generalized language of Article 3 in Flast versus Cohen, it'd be a question of nexus, but however one approaches that, it seems to us and we would submit to the Court that these plaintiffs who have both privity of a state and privity of contract with their landlord and whose terms and conditions of tenancy are unquestionably affected by their unlawful practices are within the contemplation of Title 8 and within the contemplation of 1982 and accordingly have standing. If you recall the language of Title 8, it begins with the explicit declaration that it is the policy of the United States to provide within constitutional limitations for fair housing throughout the United States. In terms of standing, it defines a person aggrieved as anyone who claims to have been injured by a discriminatory housing practice. There is a broad arsenal of remedies provided.
Warren E. Burger: Isn't that something that must be read with the other Section, provision of the statute that thrust of the statutory scheme is to see that all citizens will have the same right to inherit purchase, lease, sell, hold, convey property. Now under which part of that statute do you say the petitioners here fall?
Stephen V. Bomse: In other words, Mr. Chief Justice I take it you are referring us now to 1982 --
Warren E. Burger: Right.
Stephen V. Bomse: -- as opposed to Title 8. Under 1982, again we must be aware that we have two classes of plaintiffs. Some are Negro tenants of Parkmerced. Unquestionably, they are being denied, at least on our view, the rights which are afforded to white citizens to lease and hold property. White citizens are not forced to live apart from other members of their race; black citizens, Negro citizens are.
Warren E. Burger: You are speaking now of the petitioners who seek standing. Under which part of that particular statute do you say they come, i.e, are they being -- the petitioners, not someone else, are the petitioners being denied the right to inherit, purchase, lease, sell, hold, or convey?
Stephen V. Bomse: Mr. Chief Justice, I've meant to respond. We do have two petitioners here, Mrs. Carr and Mr. Ambery (ph) who are Negroes, but as to the others, we suggest that in terms of a standing inquiry, the inquiry is whether or not a approximate result of practices proscribed by 1982 which you just read, they are directly injured. That was the thrust as we read it of the Court holding in the Sullivan case. It's the thrust also of the District Court's decision which we have decided in the Walker against Pointer. White persons can be injured and can therefore have standing under Article 3 as a result of discriminations as in Sullivan, as in Walker as in the other case of Bowers (ph) against Jackson which are not directed against them. It's the injury that they suffered and the interest which they have been redressing that injury which grants standing under 1982. In terms of the companion statute, for which we are here, Title 8, the language is even more clear. We are seeking to redress injuries which the petitioners suffered. This is the case involving personalized allegation to the injury. We claim to have been injured as the result of discriminatory housing practices prescribed by the Act. Now if we go beyond the language which both ourselves and the office of the Solicitor General would be before the Court in the moment, think it's quite clear in support of our standing, if we go beyond that to the legislative history, we again find I think, although no comment at all as to who should or should not have standing beyond the language of the Act. We find two principles which I submit militate strongly in favor of the petitioner's standard here. The first is the continuing recognition of the fact that racial discrimination is a pernicious evil throughout our society. Senator Mondale who is the principal author of the Bill noted that we must show that we do not intend to live separately in this country, but that we intend to live together, that is what this measure is all about. Now the second thing that we derive from the legislative history is the fact that Title 8 was intended to do something about that discrimination, not only at the behest of a Negro individual who's denied housing, is intelligent enough to perceive that he's been denied because of his race and diligent enough to pursue it, but at the behest of a group of tenants as well, as long as they are personally injured by those practices, that's what the statute is all about. It's about the right --
Warren E. Burger: That's the question, isn't it, whether they suffered the kind of injury that's contemplated to give before them standing?
Stephen V. Bomse: Yes, I would agree with the Court, I think that is exactly the question.
Warren E. Burger: But you say, that doesn't -- certainly the statute must mean something more than having a feeling, something of substance, isn't it?
Stephen V. Bomse: Well, I think we have come in terms of the analysis of standing in this country to note that there are injuries beyond economic ones, which merit judicial protection, aesthetic values, environmental values, spiritual values, all have been held properly justiciable or proper as a basis for finding injury to assert standing. The question here is not some mere intangible dissatisfaction but it is real damage to one's associational right which we interpret to be injury to the quality of one’s very daily life. I can think of no injury indeed which is more substantial or more worthy of judicial protection. Unless we're going to take the view that Title 8 says to the Negro which are the minorities, housing discrimination is your problem. If you want to come in to our neighborhood and live there, fine, but it isn't a problem which affects anybody else, nobody else can be injured by it. I think that's a notion which we discredited in this country and I think it's a notion which this Court has regularly rejected, which other Courts have regularly rejected. This Court 10 years ago, in Bailey against Patterson noted the standing of passengers in a public transportation system to seek nonsegregated treatment. Regularly it has been held that white students as well as black have standing to contest practices of discrimination, practices which injured them because they are deprived of nonsegregated, non-separated education. I think we have come and I certainly think we should come to the point in terms of racial discrimination to recognize the fact that there are real injuries and direct injuries and cognizable injuries which are suffered at any point where a person is as the result of unlawful practices deprived of the right of nonsegregated treatment.
William H. Rehnquist: Mr. Bomse, in a statutory piece like this, how much help do you think you can get from related adjudication as to standing under other statutes or perhaps on constitutional question. It pretty much boils down to what Congress meant in this particular statute?
Stephen V. Bomse: Well, I think that is of course true, but one must presume I think that Congress had in mind the interpretation that has been given to the term persons aggrieved. The view that has been taken by enforcement agency such as the EEOC under the Title 7 interpreting the analogous the persons aggrieved there and I think when they chose to use that language in Title 8 in 1968, they presumably were well aware of what this Court had interpreted the term persons aggrieved to mean, what other courts had interpreted the term persons aggrieved to mean. So insofar as we derive anything from that history I think it certainly supports our standing. We would finally submit to this Court that the standing of tenant should be recognized because they are going to be, perhaps, the most effective advocates of ending racial discrimination, large apartment complexes. They are people with a real continuing interest in those problems. They live there, it's a continuing situation for them.
Warren E. Burger: Well now those might be good reasons to urge upon Congress for specifically granting them standing, but do you suggest that the utterances of some of the prime authors support that view? Didn't Senator Mondale himself indicate that as an illustration, in response to a question that what the statute was about, was that when a man wants to buy a particular piece of property or lease it, this statute is to help him get it and -- him.
Stephen V. Bomse: Yes, but the fact that is one thing that, that is one thing that is about does not in my view suggest that it is not about something else. Senator Mondale was not at that point discussing the question of who had standing and I'll frankly admit to the Court as I think, the respondents would as well, there is no legislative history on the precise question of who has standing. All we must do is look to the language that is used, look to the intent of the statute and look to what Congress was attempting to accomplish when it enacted it. I think that all of those things point very strongly in this case to the fact that standing should be recognized.
Warren E. Burger: But it didn't Senator Hart's language address itself directly to this point when he said that as these provisions now on stand, they reveal a congressional intent, a clear congressional intent to permit and even encourage litigation by those who cannot afford to redress specific wrong done to them because of the color of their skin. Doesn't that indicate that at least at that point, he was talking about standing and said it's limited to the people who are themselves wronged by exclusion?
Stephen V. Bomse: I do not think so Mr. Chief Justice. I think that in that case again, he was talking about the fact there should be law enforcement, and should be enforcement by persons who are directly injured or enforcement on their behest when they cannot afford it, but was not suggesting in anyway that petitioners here should not have a standing.
Warren E. Burger: Now this related litigation that you mentioned in response to a question, will that litigation -- is that litigation such in its scope that all of the relief sought here could be accomplished there?
Stephen V. Bomse: We can't tell at this point. Certainly the relief which petitioners seek for their own personal injuries, cannot be. For example, Mrs. Carr has been told that her child should have greater contact with minority persons that he has been psychologically disadvantage by the lack of that. Now if that's an injury that's cognizant under the statute, she should be entitled to seek redress for that quite apart for many relief which would be granted in the Burbridge case. It's a question of the right of any person who has been injured to seek redress for those injuries quite apart from the right which other persons have.
Warren E. Burger: Mr. Wallace.
Lawrence G. Wallace: Mr. Chief Justice and may it please the Court. In the view of the United States anticipated a little bit Mr. Justice Rehnquist's question. This case presents a quite narrow question of statutory construction and answering that question, we believe that this Court can put aside more far reaching problems of standing to litigate constitutional issues or to enforce statutes that do not expressly provide for a right of private action and do not contain a provision conferring standing on a defined class of persons. In the Fair Housing Act of 1968, Congress has specified two methods of private enforcement. One providing for recourse to the conciliation efforts of the Department of Housing and Urban Development before a suit is brought and the other authorizing direct action in the courts, and the Act's standing provision which is reproduced on page two of our brief is in the words of the Court of Appeals very broad. Certainly, the language is broad enough to cover the petitioners here. They are within the literal terms of the provision and they have alleged economic injury to themselves, injury in their social relationships and injury to their reputation through the practices that the Act forbids that they alleged that have occurred here, whether their claims of injury can be substantiated, remains to be tried if this Court holds as we believe it should, they have a right to have this claims heard.
Potter Stewart: Mr. Wallace are the words to which you are referring any person who claims to have been injured on page two of your brief?
Lawrence G. Wallace: That is correct, that is the standing provision.
Potter Stewart: Any person who claims to have been injured.
Lawrence G. Wallace: By a discriminatory housing practice within the meaning of the --
Potter Stewart: I suppose if we read those words literally as you suggest we should anyway that would give anybody standing because any person could claim to have been injured?
Lawrence G. Wallace: Well, we don't suggest that the literal reading is the end all, but it's certainly is the beginning of the interpretation.
Potter Stewart: But you agree that literally those words would have been (Voice Overlap)
Lawrence G. Wallace: They would confer a standing.
Potter Stewart: (Voice Overlap) Not only come from a different city and claim to have been injured?
Lawrence G. Wallace: He could make that claim obviously. There would be great difficulty in substantiating that claim in those circumstances. We do not take the position that any person can complain nor has HUD in its administration of the statute, read -- applied to terms that literally, but HUD has consistently entertained and processed complaints by persons similar to those -- similarly situated to those here and not only the complaints of petitioners Trafficante and Carr, but complaints by others, HUD officials estimated to me that a little more than 10% of their initial complaints and inquiries they would guess around 12% come either from -- come from whites who are either tenants in an apartment complex; if they claim is discriminating or who are customers of housing developers that they claim are discriminating.
Warren E. Burger: But could it, to pursue them Mr. Wallace, would they have -- would it be necessary that they be even residents of the same state, let alone the same city, if they claim the injury? We're talking about standing now and not of talking about evidentiary?
Lawrence G. Wallace: Under the literal terns of the provision, it would not be necessary. As the statute has been administered, HUD has found a concrete content for those literal terms. In some of the practicalities, that are inherent in the subject matter with which Congress was dealing and in the legislative history of the Act which we believes corroborates the way the government has been applying the provision. We have recounted in our brief some of the difficulties encountered both in our own experience in investigating and finding witnesses for our parent and practice suits and in the experience of the NAACP legal defense fund, recounted to you in an amicus brief in this case which we commend to the Court's attention in developing private litigation. We have reviewed in our brief some of the difficulties experienced with those persons who have been turned away or rejected as applicants, who often are not in a position to know why they've been turned away who have to satisfy their housing needs elsewhere without awaiting the outcome of litigation and who often do not wish to force their way through litigation into a place where they've been made to feel unwelcome. On the other hand, tenants or organizations have long been in the forefront of litigation on this subject as is recounted in the book by Simon on Dorsey against Stuyvesant Town, cited in the petitioner's brief. And we believe this is because of the continuing nature of the injury that they suffer and the fact that, that injury can often be more effectively redressed in the courts, then the injury to a rejected applicant, who has had to satisfy his housing needs elsewhere, and significantly, this injury to incumbent tenants was recognized and discussed in the Act's legislative history. As we recount in our brief, repeated references were made in the floor debates to the discrimination experienced by a black naval officer when he attempted to rent an apartment in a certain building and to a letter from one of the buildings tenants expressing his shame and outrage that this had occurred. It is true that the predominant concern expressed in the legislative history was with the plight of those turned away and the Court of Appeals mistakenly in our view relied on expressions of that concern to reach the conclusion that was not expressed in the legislative history, the Chief Justice has read some excerpts from it, that only those individuals or the Attorney General with his limited resources could sue. There was a subsidiary, but recurrent theme in the legislative history which we have set forth in considerable detail in our brief and that theme was the blacks and whites alike, are harmed by being forced to live in racially segregated neighborhoods and that the harm to both races would be alleviated by the Act and --
Harry A. Blackmun: Mr. Wallace, if the Court were to grant to these plaintiffs standing, plaintiffs who are deprived of the right to live in an integrated community as I understand their language here, how can we define community in a way that will play some limits on the concept of standing?
Lawrence G. Wallace: Well, of course, the only issue before the Court in this case, involves complainants who themselves are living in the particular complex or development that they claim has been discriminating and where they have that close identification with the particular development or community such that I think there is a reasonable expectation that their reputations could be injured and the like. Certainly if you posit the case of a man running for political office, you could see instances where there would be very real injury to a man's reputation and economic interest. When you get to the question of what about the next door neighbor, couldn't he perhaps be similarly injured? That's an issue that needn't be reached here. HUD itself has not had complaints of that kind. HUD has adopted regulations which in their standing provision track this little thing which of the statute.
William H. Rehnquist: But we would have great trouble, wouldn't we, in trying to decide this case and say it does include a tenant that Parkmerced under the standing clause and try to give some principle reason for it without saying that it either does or does not include the man three blocks away?
Lawrence G. Wallace: Well, I think the thrust of this aspect of the legislative history is that Congress believed that whites and blacks are injured by being forced to live in artificially segregated neighborhoods and if someone comes forward and shows that injury, HUD officials have said to me that they believe that would be within the terms of their regulations to a person who has standing. This question is not arising either in complains to HUD or in the courts and I don't see any reason to anticipate it. It's much more likely that someone living in the complex will be in a position to have the knowledge to complaint.
Harry A. Blackmun: Mr. Wallace, you have used the words 'particular complex.' If standing were applicable to the particular complex, is it also applicable to complex across the street?
Lawrence G. Wallace: If the complex across the street is discriminating within the meaning of the Act?
Harry A. Blackmun: Yes, but these plaintiffs have standing to complain about the complex across the street?
Lawrence G. Wallace: Well, that question is not in this case. As I have been saying, there is reason to think that anyone in the neighborhood who is injured, would have standing, considering the thrust of this aspect of the legislative history and the breadth of the language Congress used, but this seems to be largely an academic question. HUD has been receiving 2,500 complaints a year under this statute; none of the complainants are in this category. They are not likely to have the requisite information to make such a complaint and it's much more likely that the real injury that would motivate a complaint, would be filed by someone more directly associated with the complex where the discrimination was occurring, whether it's an apartment development or a development of tracked homes.
Harry A. Blackmun: Well, you can see, I am troubled as to the limitations of this. That would be the next case from --
Lewis F. Powell, Jr.: Mr. Wallace, do you rely on Section 1982 on the standing issue or do you address yourself only to Title 8?
Lawrence G. Wallace: In our brief, we discussed only the question under Title 8. We do have one footnote which indicates that we think that the Negro petitioners seem to come within the terms of 1982, to the extent that they are complaining that they are victims of tokenism in living in this large development where their race is discriminated against. They are not being permitted to lease on the same terms as white persons in that sense, and we have suggested that that seems to fit the language of 1982. Of course, our principle concern is with our responsibilities for administering Title 8 and with the complaints that HUD has been entertaining and that the holding of the court below seems to imply HUD is not empowered to entertain the process.
Warren E. Burger: Thank you Mr. Wallace. Mr. Kilmartin.
Richard J. Kilmartin: Mr. Chief Justice and may it please the Court. We have here under consideration today what I believe is an extremely practical problem rather than an emotional problem that has been presented. Neither of the defendants would deny that segregation or discrimination is a pervasive evil, but that is not the question presented. As I indicate, we have nothing but a practical problem. Is this Court going to authorize tenants of an apartment complex, incumbent tenants to sue their landlord for injuries which they allege arise out of the Civil Rights Act of 1968 and the Civil Rights Act of 1866? This Court has never gone that far before and I submit should not in this case. It will submitted that the decision of the Ninth Circuit was absolutely correct. I believe preliminarily before considering the question of standing, we should put the interest of the United States in focus. The contentions of the United States tracked and parallel almost exactly that of the petitioners, but I believe that their motivation for joining with the petitioners is different and I believe that's reflected in their briefs. Their briefs assert they have a very small Civil Rights staff and an even smaller housing staff and therefore, they need whatever help they can get from the private sector and that is certainly understandable. If they do have -- indeed have a small staff and are over worked, they should have assistance of the private sector. However, we submit that denial of standing to these plaintiffs is not going to detract one bit from the enforcement or from the assistance legitimately available to the United States in this type of case. There is a complete arsenal of Federal authority provided by Title 8 which is applicable to this kind of a situation. The implementation of national policy in providing fair housing will not be affected at all. As partial proof of this, I refer to the case that Justice Blackmun, Mr. Justice Blackmun referred to and that is Burbridge versus Parkmerced Corporation. While as that case might not be a blood brother to this case, it's certainly a first cousin. It was filed just 15 days after the District Court dismissed this case for lack of standing. It was filed by the same attorneys as they are representing the plaintiffs here. It has virtually identical allegations. Whenever we appear in the District Court, the plaintiffs in this case are there to observe and it would be folly to assume that they are not, in fact, related. In each of those cases, in that case rather, the plaintiffs are five Negroes, one married couple and three other individuals, each of whom claims to have been a direct victim of a discriminatory housing practice. That they applied for apartments and that for some reason or other they were refused.
Warren E. Burger: Is there any question with they have standing?
Richard J. Kilmartin: None, whatever, Your Honor. We did not challenge their standing in the Lower Court. We are proceeding with that case, discovery proceedings are pending and in fact, the trial date has been set. The trial date is April 29, I believe it is, with certain pre-trial dates in the intervention and so that case will be disposed off shortly. In addition, it purports to be a class action and while it has not qualified as such as yet under Rule 23, it is proceeding in that context and it is anticipated that in due course a motion to qualify it as a class action will be filed. I like the Court to keep in mind what the plaintiffs have asked this Court to do and what they have asked the District Court to do. In their prayer for relief, they asked the Court to fashion a decree, an adjunctive decree which would be virtually binding on no one except perhaps the defendant. This distinct possibility occurs. Keep in mind that this action is not a class action. This is an action by individuals and individuals alone who sue in their own right and in their own right alone. And if I might state at this point parenthetically because I think it's important in response to the petitioners' contention that somehow incumbent tenants are the ones that should assert the rights under this Act. I will advise the Court at this time that there were six plaintiffs. There were two plaintiffs that filed the suit and there were four individual plaintiffs in intervention together with an unidentified committee. The four individual plaintiffs have since long departed, Parkmerced, have moved their tenancy, demonstrating the transiency of tenancies and I can -- fail to see what state they would have in the outcome of this controversy at this time. While we haven't raised it, it might well be moot as to those four tenants who no longer live there. One of them, as a matter of fact, has moved as far as Rio de Janeiro. They would left the personal stake in the outcome of the controversy which this Court has required in its decision in Baker versus Carr. If however, getting to trial on a case such as this, the defendants won, that is if the defendant landlord won the case, it certainly wouldn't be binding upon the next individual who would come along and assert his personal value preference of phrase used by this Court, most recently in Sierra Club versus Morton. Whether his grievance would be real or imagined, he'd have the right to assert it because there would be no res judicata effect to a decision such as this. If on the other hand, the plaintiffs were granted any measure of relief, it certainly wouldn't be binding upon the next group of plaintiffs who wanted to come in and assert what they thought was the proper racial mix of Parkmerced or any complex and it's with that background, Your Honor, that we proceed to the question of standing. We just do not feel that Congress ever envisioned that kind of profound disorder in creating certain rights and remedies in the housing field. As we have indicated, now I think as both sides concede the standing issue in this case is not at all complex, in fact, it's quite simple. The length of the briefs and the plethora of cases that have been cited on this subject demonstrate in my judgment one thing and that is the futility of attempting to assign to a statute a task or a burden that it was never meant to carry and I think that is the thrust of the petitioners' position here. They are trying to derive from Title 8 standing where none was ever intended and the statute simply won't carry it. Stripped to its essentials, the issue is simply this; did Congress intend that plaintiffs such as this, that is incumbent tenants have standing to complain of the policies of their landlord and we submit that it clearly did not.
Harry A. Blackmun: Mr. Kilmartin.
Richard J. Kilmartin: Yes, sir.
Harry A. Blackmun: Let me put this hypothetical to you, it's Mrs. Carr here, who is a member of the minority race, isn't she?
Richard J. Kilmartin: Yes, she is Sir.
Harry A. Blackmun: Suppose that there were some vacant apartments and she had a dependent relative who she would like to have come in to the complex and the admission of that relative was refused. Would this be beyond her rights under the statute?
Richard J. Kilmartin: I would say as the statute stands now, yes it would, but certainly the dependent relative would have every right to assert his or her rights under the statute. So that if, in fact, the discriminatory practice was practiced against that person, there would be a remedy for it. It would be remedy under both Federal and State laws as a matter of fact. California has a comprehensive public -- Fair Housing statute of its own as well as --
Harry A. Blackmun: (Inaudible) that Mrs. Carr even though these were her dependent and she could show it to be much more convenient, less expensive to have her at hand rather than across town?
Richard J. Kilmartin: I would say, Your Honor, that the statute would not extend to that situation, but once again I believe it would be academic because of the fact that the person himself or herself would have direct rights under the Act and could obtain the apartment.
Warren E. Burger: Well if Mrs. Carr in that illustration was so disposed, again coming down to the practical matter as you spoke up earlier, all would need to be done to assure a standing would be to join the dependent relatives as plaintiffs, isn't that so?
Richard J. Kilmartin: That's correct.
Warren E. Burger: And then there being one plaintiff withstanding, there probably wouldn't be too much profit in people challenging, standing of other plaintiffs?
Richard J. Kilmartin: That's correct, Your Honor, or Mrs. Carr to take her dependent relative down to the office of HUD to initiate administrative proceedings under 810 of the Fair Housing Act and if that failed and then that relative could file an action either in Federal or State Court under section 812. The Solicitor General has eluded to the fact that the only thing involved in this case is two or three tenants and we do not go beyond that, but the problem has much greater dimension than that. It has a very significant effect upon landlords and it has a -- as a practical matter, the decision of this Court is going to go far beyond if it grant standing, far beyond these individual tenants. And I would like to give you just a thumbnail sketch of what Parkmerced is because you probably -- maybe some of you have seen it, maybe not. It is a large 3500 apartment complex of tower buildings and garden apartments located on about a 150 acres in the south west portion of San Francisco. It's near lake Merced. Immediately adjacent to it to the north is San Francisco State College and its campus which has in the neighborhood of 20,000 students. About a half a mile to the north of that is another complex totally -- apartment complex, totally unrelated to Parkmerced called Stonestown. Immediately to the south within a mile is another large complex of apartments, several thousand called West Lake. Immediately to the east of Parkmerced are hundreds of single family dwellings. We submit that within a one mile radius of Parkmerced and we don't even have to go to Arkansas, but there would be nothing if this Court granted standing to these tenants to prevent the person in the house across the street from asserting his views or the apartment dweller in the next complex or perhaps even the state college student who spends eight hours of his day, each day, immediately next to Parkmerced. We submit that would be a logical extension and a logical consequence of granting standing to this type of plaintiff in this case. I would like to the Court to keep in mind that the thrust of the plaintiffs' arguments are that they are denied interracial association. That is not one of the rights, that is protected by the statute. They alleged that their injuries are social and professional in that they are deprived of the right to benefit from association with different races, but the complaints are silent on these points. There is no allegation in any complaint that Parkmerced, Metropolitan Life or the present owner, Parkmerced Corporation has a gate at the door and blocks any business or social visitor to these plaintiffs from entering his apartment or coming to visit him or from associating with him in anyway. The complaint is devoid of any such allegations and the challenge that they are denied interracial association simply fails. The streets of Parkmerced are public, although the development is private. Anybody that wants to come there can come at anytime and visit any tenant in any apartment that as long as he is, of course, invited by the tenant himself. So there is absolutely no interference with free interracial association nor is there any allegation to that effect in the complaint. In the case of Data Processing against Camp, Mr. Justice Douglas started out with the phrase of generalizations about standing to sue are largely worthless as such. I believe that is certainly true and I think this case demonstrates it. However, we start with in every standing case, the Article 3 case or controversy test. The Article 3 Case or Controversy Requirement. I want the court to understand clearly here and now that what the petitioners' counsel said and what the Attorney General implied is and implies in their briefs that is that these people have suffered injury, in fact, and were therefore automatically over the hurdle of Article 3 is simply not so. We do not admit that. As this Court pointed out in Sierra Club and as I read Sierra Club, the injury in fact, if it is necessary, has to be in cognizable injury in fact. It's not as Mr. Chief Justice suggested just a racial slur an insult, a broken leg or anything else but it has to be a cognizable injury, in fact, under the statutes that are being discussed --
William H. Rehnquist: Isn't that the Congress couldn't have conferred standing here, had it desired to do so?
Richard J. Kilmartin: No, no, Your Honor, I don't suggest that at all. I suggest that all of the arguments that have been presented by the petitioner should be addressed to Congress if they want to grant standing to people such as these and I would assume the constitutionality of such if it were passed under this Court's holding in Jones v. Mayer.
William H. Rehnquist: Well, then would you state again just very briefly, summarize your case or controversy argument, I don't believe I fully apprehended what you meant by it?
Richard J. Kilmartin: Yes, in Data Processing and as well as other cases, but Data Processing zeros in on it, as I understand it, as I read it, the first inquiry is there a case or controversy and to find that there is a case or controversy, you have to have an injury, in fact, to the person complaining, that's the first inquiry. But as this Court pointed out in Sierra Club, it's not just an abstract injury, in fact. It has to be an injury cognizable under the statutes that are under discussion and in this case, those statutes are Title 8 and Section 1982, Now we submit that the injuries asserted here, the injuries, in fact, that are asserted by these petitioners are not the injuries contemplated by Title 8 or 1982.
William J. Brennan, Jr.: Didn't I understand Mr. Wallace to suggest that the HUD entertains that -- complaints of this kind of entry, under this statute, am I wrong about that?
Richard J. Kilmartin: HUD entertained these complaints?
William J. Brennan, Jr.: HUD entertains complaints of this kind, didn't he tell us that?
Warren E. Burger: For administrative relief.
Richard J. Kilmartin: Well, yes he did say that, Your Honor.
William J. Brennan, Jr.: At least -- that agency at least thinks that this kind of complaint of injury is an injury?
Richard J. Kilmartin: Well, I think there is more committed to HUD under Title 8 than is committed to private plaintiffs, Your Honor. I think that's the answer, they have great powers, they have investigative powers, for example. I think that HUD is empowered to investigate just about any complaint that comes into its office and they have subpoena power. They don't have much enforcement power but they do have a lot of powers to investigate for the purpose of recommending to Congress.
Warren E. Burger: But one of their complaints is I got it is that Congress has not supplied HUD and the other establishments with enough manpower to do the job and that's why they want the aid of private attorneys general, isn't it?
Richard J. Kilmartin: I think that's the thrust of their argument, Your Honor, and that's what I mentioned at the outset of my remarks, but they will not be denied the aid of the private sector in my opinion, one with by denying standing to these plaintiffs because as demonstrated, the minute these plaintiffs fail there is always the Burbridge type of plaintiffs, who will be collected and will file a suit and in those cases, a case such as Burbridge, you have issues that are real, that are live, not just abstract contentions such as the petitioners play -- present here but you have real live issues. For example, in the Burbridge case, the complaints of discrimination are subject to rectification. They can sit down, these tenants can sit down with the landlord and they can talk across the table and as was the case in this situation, they were all offered apartments.
William H. Rehnquist: But supposing Mr. Kilmartin that the Burbridge plaintiffs sue to enjoin unlawful discrimination under the Act and it turns out that, in fact, there was no unlawful discrimination against them and yet these plaintiffs know of another refusal on the part of Parkmerced which was an unlawful discrimination. Now, presumably these plaintiffs could redress that unlawful discrimination whereas the Burbridge plaintiffs couldn't, am I not right in that?
Richard J. Kilmartin: By these plaintiffs, you are referring to the Trafficante, Your Honor?
William H. Rehnquist: Right.
Richard J. Kilmartin: I would say, no, butt their redress would be to go and collect the plaintiffs who have been discriminated against and let them file an action on their own, in their own name.
William H. Rehnquist: Well, but I mean if this type of lawsuit were allowed some actual incidence of discrimination would be redressed that might not be picked up in a Burbridge type suit because not every guy who is discriminated against is necessarily going to sue?
Richard J. Kilmartin: That's correct, that's correct. We believe, Your Honor, to achieve that result, you would have to have a standing statute far beyond what we have in this case. We think 1982 is clear on its face and I believe that this Court in its decision in Sierra Club posited the meaning of that Section quite clearly when it said Hurd versus Hodge, it's an earlier decision of the Court, squarely held therefore that a Negro citizen who is denied the opportunity to purchase the home he wants solely because of his race and color, has suffered the kind of injury that 1982 was designed to prevent. That is the person directly affected and not the person who was on the other side of the legal coin so to speak attempting to assert the rights of somebody else and in Title 8, I believe it is even clearer because when you track the Sections of Title 8 and correlate them, it seems to be crystal clear that the only ones and as held by the Ninth Circuit and the District Court, the only ones who were the intended beneficiaries of that Act work the persons who were directly discriminated against and I refer the Court specifically to those portions of the Act, 3610, 3602 F and 3604 and 3612.
William J. Brennan, Jr.: May I ask you something? I notice that 810 (a) which is the language we're talking about --
Richard J. Kilmartin: Yes, Your Honor.
William J. Brennan, Jr.: -- is talking about a person who could make to what, who may do what, who may file a complaint with the secretary and it's only in the event that the secretary is unable to do anything about it that then that person may commence a civil action. Well, it does seem to me that we have got an administrative interpretation if I correctly understand Mr. Wallace, on the part of HUD that the very people who we're talking about here, who are plaintiffs qualify to file complaints to the secretary.
Richard J. Kilmartin: Well, Your Honor.
William J. Brennan, Jr.: And if they are, then it [Attempt to Laughter] seems logically the statute means that they also have standing to bring suit when those things happen and the secretary has been able to attend involuntary compliance and so forth.
Richard J. Kilmartin: Yes, I think so to put it in proper context, we would have to know exactly what HUD did with such complaints and what they intended to do with them or what they are trying to do. Their conciliations and persuasion powers are virtually unlimited in that sense.
William J. Brennan, Jr.: Well that might be, but if you are right, if you are and the Court of Appeals below was right. It would seem to me HUD ought to refuse to accept complaints under (a) tenants like these petitioners?
Richard J. Kilmartin: Well, I -- that's (Voice Overlap)
William J. Brennan, Jr.: Am I not right, that is what (a) talks about filing complaints, isn't it?
Richard J. Kilmartin: That's right, but I think that HUD could accept -- to illustrate by exaggeration, HUD could accept it in informative context.
William J. Brennan, Jr.: Well, maybe they could but they wouldn't have to if the Court of Appeals is right, I suggest?
Richard J. Kilmartin: That is correct, I suggest that also. And I would like to draw the Court's attention to the specific provisions of 3610 and 3612 which when authorizing suit state that the suit maybe filed to enforce the rights granted or protected by this sub chapter. In 3612, the rights granted by Sections 3604 maybe enforced by civil actions, the rights granted not just any old right, but the rights granted by 3604. The rights granted by 3604 which were at issue in this case are (A) the right to rent an apartment without being discriminated against because of race, (B) the right to have a landlord, not make a misrepresentation to you that the apartment is or is not available and three the right to rent the apartment on the same basis as anybody else and receive the same services. Those are the rights that this Act creates, those are the rights that this Act protects,. those are the rights that are not involved in this action. Thank you, Your Honor.
Warren E. Burger: Mr. Shea.
Robert M. Shea: Mr. Chief Justice, may it please the Court. My primary concern this afternoon will be to discuss the question of the liability of Parkmerced Corporation as a successor in ownership of the Parkmerced apartment complex to Metropolitan. However, I would initially like to make a remark concerning standing.Of course, it is clear and I don't believe, it has been specifically had adverted to as yet that if this case goes forward at the behest of these petitioners, the very person who is discriminated against themselves will not be bound or affected. So, presumably under a statute which has a relatively short statute of limitations and which is cast in terms of specific discriminatory housing practices, in order to prevail these plaintiffs, although their complaint contains no specific allegation of a specific wrongful conduct, will have to prove that Mr. A came to the premises, made an application and was wrongfully excluded and B and C, none of those people is present. Moreover, may I point out to the Court that under Section 3604 of the statute in describing a violation and refusal to rent, the statute specifically requires a finding as to the bona fide, the good faith of the applicant for an apartment. Well, it seems particularly inappropriate that plaintiffs who are not themselves in the excluded group should be permitted or even called upon to litigate the good faith of those not represented nor bound by the action. Indeed, the decision to that extent lack finality. There was a question from the Court --
Warren E. Burger: Are you saying, let me interrupt you there. Are you saying that these plaintiffs would not make out a case if they established a general pattern, they must prove specific cases?
Robert M. Shea: Yes, sir.Mr. Chief Justice, the ability to sue in respect of a pattern or practice of discrimination is rested --
Warren E. Burger: Affirmative to the Attorney General, isn't it?
Robert M. Shea: Indeed, and I am paraphrasing the statutory language, if he reasonably believes that there has been a pattern or practice of resistance to the full enjoyment of rights. Now, a private plaintiff who phrased a compliant in precisely those terms would necessarily not be entitled to proceed. The private action rights and remedies under the statute are limited to those brought within 180 days of the specific discriminatory housing practice complaint off and otherwise, limited. We do not contend as our brief makes clear that an appropriate private plaintiff who complies with the requirements of Rule 23 of the Federal Rules of Civil procedure, may not maintain a class action and represent broad and obtain broad relief, but that's not this case. There was a question from the bench as to the power of Congress to enact legislation which might provide plaintiffs in petitioners' position of standing. I believe that there is no question that could be done and would call the Court's attention to the provisions of the 1964 Public Accommodations Civil Rights Act which in its terms provides that citizens are entitled to public accommodations which are free of segregation and discrimination. There is no question that a plaintiff, any citizen who encounters a condition of segregation or discrimination can sue under that Act. I might note that the Act also limits the remedy to injunctive relief without damages. Now, in the 1968 Civil Rights Act here at issue, there is no comfortable language and the remedy is afforded to the private plaintiff include damages, penalty damages as well as the right to recover attorney's fees in appropriate instances. Turning to the main thrust of my talk today, Parkmerced Corporation purchased the properties after, some months after the complaints at issue here were filed. Parkmerced Corporation is a special purpose corporation created for purposes of acquiring the property. It had no connection with the alleged acts of housing discrimination attributed to Metropolitan and it was joined after the suit was commenced under Federal Rule 25 as a party defendant.
Harry A. Blackmun: Mr. Shea at that point, there is something in the record, perhaps in the pleadings that in 1970 of some 6,600 people in the complex, one-half or 1% were non-white.
Robert M. Shea: I have no reason to question that statistic, sir.
Harry A. Blackmun: Does the record show whether the situation is the same today? I suppose that it doesn't show that, does it?
Robert M. Shea: There is no record other than the complaint and ancillary papers, Your Honor. I can assure the Court that while there may have been some changes, I do not think the Court is justified in assuming there is a materially different complex of tenants within Parkmerced. Now as to the success and interest of the position, I should point out that under familiar concepts of law, ordinarily, a private entity is not liable for the conduct of another unless it somehow has contributed to, conspired in or otherwise become involved in the conduct itself which is a violation. None of these factors applies to the case of Parkmerced Corporation. As to the pleadings in the case, the pleadings simply assert that Parkmerced Corporation had notice of the charges at the time it bought and secondly, upon information and belief that Parkmerced Corporation in the two weeks which has elapsed from December 21, 1970 when it purchased the property and January 5, 1971 when an amended complaint stating a cause of action against Parkmerced Corporation was filed, in that two-week period, that they have not made substantial changes in the operations of Parkmerced. Thirdly, upon information and belief the assertion is made that Parkmerced intends to continue the employees and their real estate office and not to make changes in policies. Now the later allegations incidentally are by -- in terms of the complaint itself based upon public information, typed letters sent to tenants advising them of the transfer which in effect said, “We've been happy to have you and we will continue with operations as before.” In their briefs, the petitioners attempt to maintain the position that Metropolitan and Parkmerced Corporation, notwithstanding the complete separation of interest between them which we have made explicit in our briefs, are somehow involved in a joint venture. This is wholly inaccurate. First of all Metropolitan provided mortgage financing and has committed to provide additional mortgage financing. These obligations are represented in a mortgage in a side letter agreement. Indeed the letter agreement itself is so detailed as to belie any suggestion that the lender, Metropolitan was in anyway involved in the future operating decisions which would result in mortgage liability, additional lending by it. Finally, there is an assertion that Metropolitan has -- in the petitioners' brief that Metropolitan has retained the power to appoint a property manager. This is simply not correct, Metropolitan as a mortgage lender and as lessor under the ground lease which is here at issue, has the power for cause only to require that Parkmerced give up the management of the premises and in such case, upon indeed a failure of Parkmerced property to manage the premises. Parkmerced would select from a list provided by Metropolitan, the new manager. It simply is not a reservation of control in Metropolitan.
Thurgood Marshall: Mr. Shea is this a matter of the Trial Court and not this Court?
Robert M. Shea: Sir, the essential question before the Court is the adequacy of the pleadings as against Parkmerced. Now, of course, this Court will not reach the issue of the successor's liability if it decides the standing issue in our favor.
Thurgood Marshall: What pleadings are before us other than the complaint?
Robert M. Shea: I beg your pardon, Sir?
Thurgood Marshall: What pleadings do we have here?
Robert M. Shea: You have the complaint and also --
Thurgood Marshall: How else to pass on all of these factual points you have produced?
Robert M. Shea: Sir the -- Your Honor, the question --
Thurgood Marshall: Is there any thing in the record that shows anything about Metropolitan upon the property agent one way or the other?
Robert M. Shea: Yes, indeed.
Thurgood Marshall: How is that there?
Robert M. Shea: The amended complaint against Parkmerced Corporation filed at the time we were joined as plaintiffs contains allegations.
Thurgood Marshall: And aren't they accepted as true at this posture?
Robert M. Shea: They are accepted as true. However, they are substantially alleviate in light of the facts, otherwise appearing in record I think is appropriately measured by this Court. The documents comprising the relationship, the financial lease and the other documents comprising the relationship have been submitted in the record of this case which has been transmitted to this Court.
William H. Rehnquist: Well, how do you get those in the record if the case was dismissed on the basis of insufficiency of the complaint?
Robert M. Shea: Your Honor, the petitioners themselves secured the documents and they were submitted to the Trial Court as pertinent to the motion for a judgment to dismiss the case on the grounds of lack of standing.
William H. Rehnquist: So the Trial Court virtually treated this as a motion for summary judgment?
Robert M. Shea: It could be so regarded. It wasn't adverted to as a problem by the Trial Court and has been treated as if dismissal was solely upon the pleadings. However, as you will note in the briefs of the parties, a liberal reference has been made to these documents of lease and contract. In compressing the remaining parts of my argument, I would like to point out to the Court that again practicality is must to govern. If tenants in this position are permitted to maintain a suit containing general allegations and then in the face of the general allegations without specific reference to any facts, require that a successor unconnected with the wrongs be compelled to litigate and subjected to the possible prospect of affirmative relief, you have provided the tenant group, be they in good faith or bad, with a tremendous weapon to use to impair transfers of property and to impose their will and their conditions upon the successor purchaser, who I remind the court has done absolutely no wrong. He simply has notice of charges which the predecessor owner denies and there are no specific allegations at issue and there is nothing he can investigate and determine. The mediation consolidation process is frustrated by suits of this generality.
Warren E. Burger: Thank you gentleman. The case is submitted.


Earl Warren: Number 532, C.D. Calbeck, Deputy Commissioner, et al., Petitioners, versus Travels -- Travelers Insurance Company et al. Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. These are two cases hereon certiorari to the Court of Appeals to the Fifth Circuit. The question presented is whether injuries sustained by shipyard employees while working on vessels under construction but which have been launched and are float on navigable waters are compensable under the Longshoremen's and Harbor Workers' Act. The facts on which this question arises differ in immaterial respect for case to case but they are substantially identical, indeed identical in all material respect and the Travelers Insurance case, the first case, will serve to illustrate both. The insured -- the Levingston Shipbuilding Company operated the shipyard on the Sabine River which flows between Texas and Louisiana. It's engaged both in new constructions of new vessels and in the repair of vessels which are previously been put into service. Unquestionably, many of its employees are engaged in maritime employment and therefore undeniably, Levingston was an employer covered by the Longshoremen's Act. McGuyer, the employee who was killed was employed by Levingston as a welder to work indiscriminately at repairing vessels which had been in service or taken out of service for repairs and also at completing vessels which were under construction. On the day in question, he was working on the superstructure of a building rig, a vessel which had been launched and was floating in the navigable waters of the Sabine River but it had not been completed and therefore had not been put into service. There was an explosion and the cause of which is immaterial, McGuyer suffered very severe injuries of which a week later caused his death. In seeking compensation for these injuries sustained in the course of his employment, McGuyer's family had to choose between seeking compensation under the federal statute or under the Texas Act which has agreed would've been the applicable state statute even though the injury happened to occur over on the Louisiana side of the river. Under the Texas Act, the widow would receive $35 a week for 360 weeks. That would be the maximum, or a total of $12,600. Under the federal statute, the widow would receive in her own right something over $28 a week during her widowhood and an additional $12.15 a week for each of two children on account of their minority. This would make a total maximum compensation to Mrs. McGuyer and the children of $83,500 or approximately six and half times to some payable under the Texas Act. Mrs. McGuyer in fact filed claims under both the Texas and federal statutes but the Texas claim was expressly made subject to the claims under the Federal Act. The Deputy Commissioner, conducting a hearing on the claim under the Federal Act at first found that this was not a covered injury. The case was then carried by the widow to the District Court and while it was pending there, the Deputy Commissioner asked to have it remanded. It was remanded. The Deputy Commissioner then made a new finding and then awarded compensation to the widow and minor children. That award was taken to the District Court by the Insurance Company, the respondent here. The District Court ruled that they're -- McGuyer had been engaged in covered employment and that therefore the injury was compensable under the federal statute. The gist of its opinion is at page 40 of the record. The Court said in a short opinion, “Here, McGuyer's death arose out of it in the course of his employment and since Levingston had other employees engaged in maritime employment and since McGuyer's death admittedly occurred upon navigable waters of the United States.” His widow and children are entitled to compensation under the Act. So you're not -- the District Court made the right to compensation turn on three facts which we think are decisive. First, that the Levingston Shipbuilding Company, the employer, admittedly had the employees engaged in maritime employment. Second, that the injury occurred in the course of McGuyer's work and as a result of his employment. And third, that it occurred upon navigable water and we think were those three facts here the Federal Act applies.
Potter Stewart: That was -- that was pretty much the holding of O'Rourke case, was it not?
Archibald Cox: That seems to us to be the holding of the O'Rourke case.
Potter Stewart: An opinion (Voice Overlap) --
Archibald Cox: It is the holding numeric on the Dixie Sand and Gravel case --
Potter Stewart: On the Sixth Circuit.
Archibald Cox: -- Sixth Circuit 1958 and we think those cases to assume I will state my whole argument now (Voice Overlap) --
Potter Stewart: The O'Rourke case, if I have it in mind, that was the opinion written by Mr. Justice Reed, was it not?
Archibald Cox: Yes, it was.
Potter Stewart: That involved a sort of conflict between this federal statute and the Federal Employers Liability Act.
Archibald Cox: That's true. It was not a question of whether the --
Potter Stewart: State --
Archibald Cox: -- State Act could apply. Of course, as Your Honor will recall the day --
Potter Stewart: That was a --
Archibald Cox: -- Federal and State Acts are not mutually exclusive --
Potter Stewart: I know.
Archibald Cox: -- in all cases.
Potter Stewart: We know that. I know.
Archibald Cox: And it squarely was held in O'Rourke that -- although the injured employee in that case was in fact, I think, a railroad employee, still this three elements were made out and the majority of the Court concluded that the Longshoremen's Act could apply and that went on and said, “This impliedly excluded the Federal Employer's Liability.”
Potter Stewart: He was a member of our train crew (Voice Overlap) --
Archibald Cox: He was the brakeman employed on one side of the North River I take it. And part of his work in the yard there would be to go up on trains or the cars of the trains and release the breaks so that the locomotive could back up and they could then be pulled off on the shore.
William J. Brennan, Jr.: He was the brakeman who went to sea?
Archibald Cox: He was the brakeman who went a little bit at sea, yes. The case --
Potter Stewart: His injury did occur on navigable water.
Archibald Cox: The injury did occur on navigable waters, the clerks build out on the same three elements that the District Judge relied on here.
Potter Stewart: His employer did have employees engaged in maritime employment.
Archibald Cox: That the injury was on navigable water and that the injury arose out of its employment.
Potter Stewart: Right.
Archibald Cox: And we think those are the decisive circumstances. In the Avondale Shipyards' case, the second case, the employee, Minus Aizen was also employed to work indiscriminately upon both vessels being repaired in the Avondale Shipyard and upon vessels under construction and he, like McGuyer, was working upon a drilling rig, a vessel which had been launched and was floating on navigable waters at the time of the injury. Aizen was injured while also working. In his case, he was not killed. He was totally and permanently disabled. And again, we have a marked difference between the compensation that he would receive if he were -- permitted to the state law and the compensation which he may recover under the Federal Act may recover in our view. In human terms, the difference is this, under the Louisiana Act, he would receive $25 for 400 weeks. This would cover him until he was 35 years old. From the time he was 35 until his death, he would have no means of support. Under the Federal Act, the payments would run, he being totally and permanently disabled for as long as he lives. In actuarial terms, the payments might come to 10 times as much under the federal statute as under the state law. In his case, the Deputy Commissioner's initial award, awarded compensation under the federal statute. The company took the case to the District Court, a different District Court, I may say than the Levingston Shipbuilding case went to and that district judge also sustained the award that's upholding the coverage of the Federal Act. The cases were argued on the same day in the Court of Appeals for the Fifth Circuit and both were substantially decided in the opinion in the first case. The Court held squarely that employees injured while working on the construction of a new vessel even though it has been launched and float in navigable water, must obtain compensation under the state law and may not obtain compensation under the Federal Act. The opinion, I think, really stands on two legs. First, the Court drew a very sharp distinction between the completion of a new vessel and the repair of an existing vessel. Now, of course, both types of work when the vessel is in float are within the maritime jurisdiction. But the new construction the Court -- the Fifth -- the Court of Appeals for the Fifth Circuit said, it's within the category maritime but local so that the state law can apply and therefore it said, “The Federal Act cannot apply.” The second leg of the Court's opinion was to go back to the early president in Grant Smith-Porter Ship Company against Rohde, a case decided before the enactment of the Longshoremen's Act. And to say that since that case held that an employee engaged in new construction upon navigable waters on a floating (Inaudible), could recover under a state Longshoremen's Act, therefore, he could not recover under the federal law. There are two consequences of this distinction and reasoning that I'd like to advert too very quickly, the first is that it makes the compensation, to employee like -- employees like these, turn entirely on the happenstance of whether on a particular day they are on a new home or upon an old house being repaired because they are employed like many of -- these both were employed like any -- many other workers to work indiscriminately on new construction and repair. The second point I would simply mention briefly at this day is that the drawing of this distinction led the court below into a dictum which I think is revealing of its error because it is squarely contrary to two recent decisions of this Court. In drawing this distinction between new construction and repair, the Court flatly stated that if the men were engaged in repair work, they must sue under the state law and could not recover under the Federal Law because this is squarely inconsistent with the decisions of this Court in the more vast cases. Both of which hold that employees engaged in repair work may recover under the state statute and I think while this is the not -- is the other half of the pair than the case we have here that it is the converse and shows the essential error in the court below. Now the critical words of the statute are conveniently found on pages two and three of our brief. At the top of page three, you will find the definition of employer. The term employer means an employer any of whose employees are employed in maritime employment in whole or in part on navigable waters of the United States including any dry dock. And this plainly encompasses both the respondents in these cases. Then Section 3 (a) 903 of the Code, provides compensation should be payable under these chapter with respect of disability or death of an employee which incorporates by reference as you see the definition of employer and employee but only if the disability or death results from an injury occurring upon the navigable waters of the United States including any dry dock, we admittedly meet that requirement. And if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by state law of the critical question in this case stated in general terms is whether that concluding proviso or qualification, if recovery for disability or death may not be validly provided by state law, bars federal compensation here because through the tolerance or sufferance of admiralty, prior to 1927, states had been allowed to give state compensation under the conditions obtained in here. In answering these question, there is one premise which must be borne in mind and that is whatever may have been the initial intention in this respect, it is plainly clear today that the statute does not make state and federal compensation mutually exclusive in all cases, and that, I say, whatever may I have been the initial meaning of this language, has now become a premise so well established that I think it takes no argument. This is the statute which has evolved in role to meet real conditions and we interpret it in the light of present and not simply going back to earlier interpretation as it was a bare colloc -- bare collocation of words. In our view, the concluding portion does not bar recovery under the federal statute, and as I said before, we think the federal statute applies where the three significant factors that I mentioned in the discussion with Mr. Justice Stewart are brought out. We find support for this view in the legislative history and background of the statute. We think it is plainly sustained by the decisions of this Court and indeed except for some recent decisions in the Fifth Circuit by the uniform course of decisions for 20 years in the Court of Appeals. And finally, we urge that even if these contentions were not enough alone to make out petition in this case, even then under the twilight zone doctrine, established by Davis against Department of Labor, the award of compensation should've been sustained. I think it would be helpful at this point before coming to those three contentions, if I were to recall for the Court, the background against which the Longshoremen and Harbor Workers' Act were mentioned and also, I recognized, the Court has been offered a good many times. You will recall and I can do it by referring to three cases. You will recall first that the Jensen case laid down the proposition of constitutional law that injuries occurring within the jurisdiction of the admiralty courts were not compensable under state statutes because admiralty law required uniformity and therefore the diverse rules of the 48 states might not be applied and that distinction was subsequently extended in two cases, the Knickerbocker Ice and Dawson cases to hold that Congress could not permit the states to apply their compensation statutes in this area. The second case that I would refer to is this case of Grant Smith-Porter Ship Company against Rohde, which introduced the so-called doctrine of maritime but local. In Grant Smith-Porter Ship Company against Rohde, an employee was injured while engaged in new construction of a ship which was afloat on the navigable water. He had been employed to engage only in new construction. His employment contract contained references expressed or implied to the state compensation act and the state compensation act provided that an employee who elected to come under the Act should be deemed to have waived his rights under the substantive law of torts to sue for personal injury. And the particular case which ultimately came to this Court was a suit in tort to recover for personal injuries but it was held that the employee was barred by his acceptance rights under the state law and that the state compensation act could apply because the Court said, this was maritime but local. Many of the commentators striated the Rohde case as they retreat in part from Jensen. There were a series of five or six cases in this Court that applied the doctrine and the various other kinds of employees. The third case, I need to mention only briefly, Industrial Commission against Nordenholt Corporation which drew the line between state and federal -- between -- through the permissible line of state acts in such a way between the ship and the dock so that even if the dock reached out in the navigable waters, if the injury occurred on the dock, the state law might be applied. I mentioned this case because it's one of the things to which the concluding words of Section 903 might be taken to apply. So the question here stated in the length of its background -- of the background of the Longshoremen's Act is whether this concluding if clause -- if recovery for the disability or death through workmen's compensation, may not be validly provided by state law is to be held to incorporate into the Federal Act a limitation on the cover of which excludes from the Federal Act this pre-1927 category of maritime but local. Our first point is that the legislative history shows that the Congress did not have any intention -- affirmative intention to incorporate in the Section 903 the doctrine of maritime but local. I stated in terms but did not have any intention to incorporate it because I do think that this is a statute of which must be interpreted as I have said earlier in the length of developments since it's neck but if there were clear evidence that Congress laid stress on the maritime but local doctrine, naturally, that would give us a pause in arguing that it was not effective law today but quite contraries the case. Well, I do not know that one could press so far as to say that the legislative history shows affirmatively that the doctrine was repudiated. It certainly finds more in that direction than it did in any direction of preserving it or attaching importance to it. The bill of which ultimately was enacted, originated in the Senate and it's interesting to note that the original Senate Bill did incorporate the maritime but local doctrine. We've set forth the relevant excerpt on page 32 of our brief. This actually apply to any employment performed on a place within the admiralty jurisdiction of the United States except employment of local concern and of no direct relation to navigation and commerce which will not apply to imply if he's a master or a member of the crew of a vessel. In the hearings, those critical words which are taken from the Rohde case, employment of local concern and of no direction, no direct relation to navigation and commerce were explained as coming from the Rohde case and were severely criticized, indeed in a written memorandum filed some time after the conclusion of the hearings but before the committee made its report, on behalf of the insurance companies, the association of ship builders, there was a precise criticism of this doctrine, the criticism is quoted over on page 34 of our brief. It finds both with the indefiniteness of the words that says that there would be enumerable questions coming before the court if they were preserved and urges that the statute be expanded so as to cover all maritime employment under the admiralty jurisdiction of the United States Court.
Potter Stewart: This cert -- occasionally was from an employer's group was it not?
Archibald Cox: This was from an employer group. The American Shipbuilders Inc. and New Jersey Dry Dock Association.
Potter Stewart: They wanted to include the seamen as well I think.
Archibald Cox: They also wanted to include seamen.
Potter Stewart: Then what to -- to repeal the Jones Act? Is that the other --
Archibald Cox: I -- well that's -- they'd -- there's no suggestion of an expressed repeal in any of the hearings that I read. The chief debate, indeed, was throughout to the hearings of the Senate and in the House and such a few references are on the floor was over the position of seamen. But I do think that some significance must be attached to this change in wording which the committee made because if you will look over on page 35, Mr. Justice Stewart, you will see that the Committee, when it reported the bill, rewrote the definition of coverage in such a way as to leave out any references to the language of the Rohde case or maritime but local and to expand its coverage even though it did not changed it to include seamen. It then -- it read at that stage, compensation should be payable under these act in respect to disability or death of an employee but only if the disability or death results from an injury occurring upon navigable waters of the United States including any dry dock or occurring while such employee was employed onboard the vessel of the United States on the high seas and if recovery for disability or death through workmen's compensation proceedings, may not validly be provided by state law. That is the law as it stands today except that there is this phrase coming right after footnote 10 or occurring while such employee was employed on board the vessel of the United States which was of course subsequently believed. I may say that although that suggest Justice Stewart, that seamen might have been covered at that stage. If you turn over to the next page, you will see that there is even then was an exception that took most seamen out, so that while the committee did broaden the bill, it did not broaden it to the full point of including seamen. The best explanation of this chain that I can find is that the Committee did not wish to incorporate in to the Longshoremen's and Harbor Workers' Act, the maritime but local distinction of the Rohde case.
Potter Stewart: Now what do you think and maybe you've told us but if it's so I've missed it, what do you think this phrase meant to the Congress at the time it was enacted?
Archibald Cox: Well, I think there are -- I think there are two choices looking at it as you just did at the time it was enacted.
Potter Stewart: In -- in --
Archibald Cox: I think it --
Potter Stewart: -- in the light against the background of the decided cases of this Court.
Archibald Cox: Of that time -- yes.
Potter Stewart: -- Jensen, Knickerbocker Ice and Dawson cases.
Archibald Cox: Yes. Well, I think that if we -- I think that it must have had served one or two purposes. One is that it was put in primarily as a recital of the reasons for enacting the statute as it were to add the saying there in coverage, in the coverage section that we have to act because Jensen and the other cases have excluded the state jurisdiction. And this interpretation is certainly supported by the view -- by the fact that the committee report refers to Jensen and Knickerbocker Ice but neither on the committee of reports or anywhere else was there a references to the maritime but local doctrine. Indeed, perhaps you gain some slight additional strength from the fact that when the Senate Bill was read on the House floor, they simply stopped reading it after occurring on the navigable waters of the United States and nobody attributed any significance to this recital. Now, if it must be given some substitutive meanings as of that time, I would say that it was intended to cover the situation involved in the Nordenholt Corporation case. To with -- to make it clear that the longshoreman who was injured on the dock, reaching in the navigable waters, belong to the state rather than under the Federal Act because if you had left that out, it would certainly have been possible to argue that an injury upon a fixed structure, reaching out in the navigable water, was an injury on navigable waters just as much as it appeared on the floating structure. Those seem to me taking this now as you have to interpret it as of the -- as of 1927, as to the two most likely interpretations of the words. The legislative history in the House does not require the same detailed exposition. It's enough to say simply this, in the House the movement was only for expanding comfort. Indeed, the original House Bill expanded in coverage to the point where seamen and masters were included. It apparently was impossible in view of the legislative situation than existing to enact such a bill in an effort to get a bill properly enacted. There was a return to the Senate floor and that was what the bill became -- and that was the bill that became the law. Now, the point that I'm trying to make is that all of the -- except for seamen, all the changes in language were consistent with the notion of expanding the federal coverage to the full extent of admiralty jurisdiction and that there were certainly nothing to indicate beyond the fact that the Rohde case was on the books since that's an indication but there's nothing beyond that bare fact to indicate that the Congress attributed any importance to the maritime but local exception. Now of course, coming at the statute today, 35 years later, we think that it is not to be interpreted as it might have been in 1927 or 1928, even so, we would have had a pretty good case then. But the later decisions, the growth, the revolution of the statute, make it all together plain that the maritime but local doctrine is not a limitation upon the coverage of the federal statute. The first case that we think establishes that proposition is Parker against Motor Boat Sales Corporation. You will recall that in that case, a janitor named porter who was employed to work on land about the premises in someone who was selling out boat motors and small boats went upon a single boat ride with his superior to act. It was said, as a look out for any possible obstructions in the James River.He fell overboard and was drowned. The Court of Appeals for the Fourth Circuit set aside an award made by the Deputy Commissioner in favor of the widow upon the ground that the state could award compensation under the doctrine that the accident while maritime was a local concern and this really, I think, not the slightest precedent but that it was on that ground the maritime but local exception that the Court of Appeals had acted. Nevertheless, this Court reversed and sustained the award of compensation, and while the opinion is not explicit upon that point, it seems to us that it rather clearly repudiates the whole maritime but local doctrine as a measure of the coverage of the Federal Act. There was no discussion of the maritime but local test, on the Rohde case and others like it were not cited, the opinion below, I think, would've been very persuasive if these were the tips. Instead, this Court held very simply that the proviso, the concluding language that I've sought to direct your attention to several times, referring the cases where recovery might be had by state law, did not provide an exception, large enough to cover the Parker case. The commentators and the lower courts have -- with rather complete uniformity, interpreted the Parker case as rejecting the maritime but local doctrine. Professor Larson and his book on Workmen's Compensation says, this decision by the highest Court appear to scrap the local exception to maritime employment but the relation to navigation and commerce of an unauthorized print in a tiny outward motor might seem to approach the vanishing point. The second case, which if necessary, puts this proposition beyond dispute is the case of Pennsylvania Railroad against O'Rourke to which I referred earlier in answer to some questions from Mr. Justice Stewart. You will recall that it involved the freight brakemen in the yards of the Pennsylvania Railroad at jury's decision. The argument and decision in the Second Circuit had been inter -- had been directed to the proposition that the place where the injury occur because it had occurred on navigable waters was not decisive and that it was necessary to inquire into the character of the employment and the opinion below went on in the respondent's argument in defense of it was that if the employment was not maritime, the Federal Act had no application. Now, this argument is essentially the same as the argument that was made in Rohde and the other old maritime but local cases. In Grant Smith-Porter against Rohde itself, the emphasis was on the character of what the employee was hired to do. Now, the contract for constructing the Ahala that was the vessel he was working on, the Court said was not maritime and also the uncompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde's general employment or his activities at that time had any relation to navigation or commerce. And in that opinion, the Court said with reference to Jensen and similar cases, in each of them, the employment or contract was navigable in the cha -- it was maritime in the character. Here, the parties contracted with reference to the state statute and the Alaska Packers' case, another leading exposition of the maritime but local doctrine is written even more explicitly in terms of the fact that the employee who in that case had been injured pushing a vessel in the navigable waters had been hired to work about a cannery. It was a dead season and he was a cannery worker the Court had said and therefore the Local Compensation Act could apply. The similarity between the two arguments, the argument by the -- in the O'Rourke case and the argument in the maritime but local cases, had been noted in the District Court. Indeed, it expressly referred to the Rohde case and indicated that in its judgment, Rohde was an outlaw under the Longshoremen's Act. And the Rohde case and others were cited not unnaturally in the briefs in this Court, in the O'Rourke case, for the proposition that the Federal Act would not apply. Never the -- nevertheless, this Court squarely repudiated the test which calls for one look at the character of the employment and indicated, we are clear that the emphasis of the nature of respondent's duties here misses the month. The statute applies by its own terms when the employer has any employees engaged in maritime service than going on the exclusive coverage of Section 903. That's the one we are arguing about, 905, extends to an employee of an employer made liable by 904 when he is injured in the course of his employment on navigable water and we have those same three facts, an employee of an employer covered by the act, injured in the course of his employment on navigable waters.
Potter Stewart: Of course the O'Rourke case did not involve directly, certainly, the exemption -- the exception that we're talking about today did it?
Archibald Cox: It -- I think it did in this sense if you'd say directly and let me state in the sense in which it applies without (Voice Overlap) --
Potter Stewart: Let me ask you this --
Archibald Cox: If the Longshoremen's and Harbor Workers' Act could not apply because the exception took the case out. Then there would have been an altogether different question as to whether the fact that a State compensation law applied, prevented recovery under the FELA.
Potter Stewart: May I ask you --
Archibald Cox: The whole argument was --
Potter Stewart: May I ask this Mr. Solicitor General just for my own information, did the Court in the O'Rourke case discuss the proviso that the Act -- the Federal Compensation Act is applicable if the state law may not apply?
Archibald Cox: No, it did not and I suppose because --
William O. Douglas: On page 337, I just happen to have it in front of me Mr. Solicitor General. The opinion of the Court says that Jensen wanted a demarcation to state and federal jurisdiction had been accepted. New Jersey could not have enacted statutes granting compensation for respondent's injury on navigable water.
Archibald Cox: That's true.
William O. Douglas: That's the dictum of course.
Archibald Cox: It did say that and it seems to me that the statement with deference to the author of opinion and the majority cannot be taken literally because since the Davis case, it has not been true that the federal and state laws are mutually exclusive. There are certainly instances in which the state may grant compensation where the injury occurs under circumstances where the federal law might apply. The clearest illustration is the case of the work on the repair of a vessel where it has been squarely held even though the vessel is afloat on navigable water as in the Baskin case out on the West Coast that the state law may apply. But so, Justice Douglas is not only obviously right but I appreciate him calling into my attention, it seems to me that that statement, however, is too broad and simply does not accord with the precedents in this Court. I may point out that these three facts that I've sought defect towards, that I've sought to emphasize have been applied Justice Stewart as you recalled earlier in cases where the clearer question was one of the coverage of the Federal Act and whether an award on the Federal Act should be sustained. Thus in this Dixie Sand and Gravel case on the Sixth Circuit stated very categorically in an opinion on which -- from which there was no descent on this point that given these three facts, then the federal statute apply. And I think that it's a -- this is rather clearly the rule not only in Fourth and Sixth Circuit but the Ninth Circuit has held that the maritime with local test does not applied. I would add the Fifth Circuit where it's not the present case.
Potter Stewart: Now Mr. Solicitor --
Archibald Cox: But (Voice Overlap) --
Potter Stewart: -- General. Excuse me again if I may interrupt. Judge Brown in his powerful style, indicates in this case that the rule has been pretty definite at least in his circuit and I should gather from what he says that he -- that the rule as being quite definite and certain throughout the federal courts that in this specific factual context regardless of what the general rules might be, i.e. -- i.e. new construction even though the -- even though the ship being built is far out for long so it's floating on navigable water that new construction is outside the coverage of the Federal Act. That's what he seems to apply and he seems to -- opinion seems to be positive on the wisdom of having the certainty in this area.
Archibald Cox: Well I think it's -- yes.
Potter Stewart: Is he right factually about that or is he wrong factually about that (Voice Overlap) present?
Archibald Cox: Well, I think that speaking only of this exact factual situation.
Potter Stewart: On the category of new construction.
Archibald Cox: Alright. Yes, that's what I meant but -- as distinguished from the status of the maritime but local doctrine in general.
Potter Stewart: Right.
Archibald Cox: Speaking of this category of new construction, I think the facts as to the decisions and law are these. First, there are no cases upholding federal coverage as applied to new construction. We have to concede that. Second, this is not an area in which it is practicable to ascertain what the practice of the Deputy Commissioner has been. The awards are not filed in a way that they are digested or analyzed and you simply can't run it down. On the other hand, I think that I must acknowledge that probabilities are that there were not any significant number of awards and compensation because I suppose that they would have been taken to courts in view of the decisions if there has been, although I think that's a little speculative. I think I have to worsen it on that point. So that Judge Brown's -- if limited sufficiently, Judge Brown's reasoning is correct.I would make these points in reply. In the first place, I think the notion that an exact pre-1927 president removed something from the area of doubt, has been thoroughly repudiated. The more Baskin cases, are the best illustrations and indeed the difficulties into which Judge Brown's search for certainty in the pre-1927 precedents leads one, are very well illustrated by his own opinion as I indicated earlier, he said in the Fifth Circuit, the rule is, I'm referring to page 50 of the opinion, in the face of some state court decisions which we have expressly declined to approve or follow, have we spoken in positive terms as to ship repairers. A ship repairer is not in the twilight. He is in the federal domain. The State Act may not validly imply but this is just flatly inconsistent with the decisions of this Court. So that's one thing that conventions made that to say that certainty was given by the pre-1927 decision is not really proved in a realistic sense. Second, I can't help noting also perhaps it's not with significance that the Rohde case itself is distinguishable on these facts and indeed the opinion that some of the Deputy Commissioners apparently relied on is also distinguishable. The Rohde case dealt with a man who worked on new construction.
Potter Stewart: Wholly.
Archibald Cox: Wholly. And these are men who work indiscriminately back and forth and it involve a contract referring to the State Act that apparently lose no such contract here. Again, the only case which followed Rohde early under the Longshoremen's and Harbor Workers' Act, was a case in the Fourth Circuit and Judge Brown himself acknowledges that that case has not been followed in the Fourth Circuit, not in the narrow sense in which we were talking earlier but in the sense of its broader rationale. Again, the distinction between new construction and repair has been clearly repudiated in the case of dry docks and marine ways. Now I see no greater reason for applying it to the construction of ships than there is for applying it to the construction of dry docks and marine ways.
Earl Warren: We'll recess now.