William H. Rehnquist: We'll hear argument next in Number 1999... correction, 1331, James Lewis v. Lewis & Clark Marine. Mr. Dripps.
Roy C. Dripps, III: Mr. Chief Justice, and may it please the Court-- Both the Jones Act and the Limited Liability Act can and should be given effect in this single claimant case, yet respondent seeks to use the Limited Liability Act to destroy rights conferred by Congress on Lewis as a seaman. The Jones Act incorporates the provisions of the Federal Employers Liability Act guaranteeing the employee a choice of a State or Federal forum. In addition, it guarantees him the freedom from removal to Federal court in the event he chooses a State court forum.
William H. Rehnquist: That's true of both the Jones Act and FELA, is it?
Roy C. Dripps, III: Yes, sir, and that statutory remedy is saved to Lewis by the saving to suitors clause, yet it can only be preserved in this case by dissolving the injunction against State court proceedings. This Court's decision in the 1931 Langnes case held that the injunction, even without stipulations, should be dissolved to allow the State court suit to proceed, and that the admiralty court would resume jurisdiction only in the event that the State court judgment exceeded the amount of the limitation fund.
Sandra Day O'Connor: Well, under what circumstances could the district court exercise its discretion and not dissolve the injunction and require litigation of liability in Federal court?
Roy C. Dripps, III: Justice O'Connor, it would be only in a multiple claimant excess fund situation, and even then under the Jones Act there might be a question with regard to preserving multiple suitors claims under the Jones Act, but generally in a non Jones Act multiple claimant excess fund situation the vessel owner does have the right to maintain the exclusive jurisdiction of the admiralty court.
William H. Rehnquist: Well, what if you have excess funds, multiple, and the Jones Act? Are you saying that the Jones Act would prevent a liability determination in all of those situations?
Roy C. Dripps, III: Not necessarily. I'm saying that it's a question that potentially could be raised, but it hasn't been. That's, of course, not this case. This is a single claimant case, and part of the court's discretion at the district court level certainly was finding that it could be a single claimant case, which the district court order did note in footnote 3.
Sandra Day O'Connor: Do you think that the courts and rule (f) preclude a single claimant exception?
Roy C. Dripps, III: Oh, absolutely not, Justice O'Connor. I think that was made clear in the Langnes case, because in the Langnes case the district court in fact exonerated the vessel owner, and were that... were rule (f) to preclude dissolution of the injunction, certainly the court would have simply relied on the exoneration finding.
Sandra Day O'Connor: But you think that rule (f) is invalid?
Roy C. Dripps, III: I do. However, and I want to make this clear, the Court need not reach that issue if it simply follows the Langnes analysis. The Rules Enabling Act analysis only comes into play in this case if the respondent's position is adopted, in that they say that we have no right to go to State court. At that point, I am forced to attack the rule which gives them the right to have a liability and damage determination made in the Federal court, which I do say is invalid as violation of the rulemaking powers of this Court.
William H. Rehnquist: But it's possible to rule for you here without holding that rule (f) is invalid just as a matter of interpretation, isn't it?
Roy C. Dripps, III: Mr. Chief Justice, I agree completely that if the Court simply follows the Langnes case and says that the Jones Act allows this case to be brought in State court, and that that statutory remedy is preserved by the saving to suitors clause, and that the injunction should be dissolved on that basis, the Court need not reach the issue of the invalidity of rule (f) in this case.
Ruth Bader Ginsburg: But it might not... but it might not go that far if you had a mass disaster and there were many sailors injured and the vessel wasn't worth enough to cover all the claims.
Roy C. Dripps, III: Justice Ginsburg, I think that in that case the plain language of the limitation statute in anything other than fire requires the vessel owner to admit liability and cannot use the limitation statute as a method to shift the forum and then contest liability. The shipowner has a choice of one or the other in that circumstance.
Anthony M. Kennedy: How does it work in practice? You have a single claimant, and there's adequate, adequate funds to cover the claim and it goes to the State court. Then 6 weeks later somebody else has a slip and fall, and then there's another suit. Does that make everything start all over again? How does this work in... it seems to me that there's great merit to your position, but that on the other hand there's going to be problems down the line when you have subsequent claims, or is that maybe not a problem?
Roy C. Dripps, III: Justice Kennedy, I don't believe that's a problem, because normally when you have a case like this you have separate or serial funds. Each time the vessel owner wishes to file a limitation case there's a separate valuation made, and it's a separate proceeding. Now, the seaman's claims will become liens in priority of the time they arise, but that's a separate issue, and I--
Anthony M. Kennedy: Okay, so the priority is what solves the problem, then.
Roy C. Dripps, III: --Exactly. There's a priority based on chronology.
Ruth Bader Ginsburg: And also--
Anthony M. Kennedy: --A chronology of when the claim was filed, or when the injury occurred?
Roy C. Dripps, III: I believe that it is of the time of the judgment, except for wages, when it's a... wages are a lien that accrue as of the time--
Anthony M. Kennedy: Well, then I think there might be a problem with successive claims. We need not get into it. It's in the background, it seems to me, of the rule we must make, because if we ship it all off to the State court, and then there are going to be subsequent claims, you might have to start the... stop the State proceeding midway.
Roy C. Dripps, III: --Well, Justice Kennedy, I believe that would only be a problem if the vessel owner tenders the vessel to a trustee rather than posting security for value, which is what was done in this case. If, in fact, the vessel is turned over to a trustee, though, the likelihood is that it's not going to be employed by the owner, and so that owner won't be allowed to have a subsequent claim, and if they post security for value, I think that solves the problem, because there is a fund posted, and we won't be in a situation where we have competing claims for the same fund. In other words, they will be different funds.
Ruth Bader Ginsburg: Do I understand the limitation correctly? I mean, the typical use would be if you have a collision and lots of people are hurt, but this is a single... this is a tripping on wire, so we know it isn't... it isn't disputed in this case, is it, that we're dealing with a single sailor accident? There was... he tripped over a wire on the deck.
Roy C. Dripps, III: There is no dispute concerning that, Justice Ginsburg. In the motion to dissolve the restraining order, which is in the joint appendix on page 70, and I believe it's at page 71, paragraph 6, Lewis made the specific claim that this was a single claimant accident. That claim has never been rebutted or contradicted by the opposing side, by the vessel owner, so this is clearly a single claimant case. Now, what your question suggests then, is why was this case filed, and it was filed simply as a forum shifting device.
Ruth Bader Ginsburg: But you sued later. Oh, you think that they came in precipitously so that the forum would be where they wanted it, rather than where you chose to sue?
Roy C. Dripps, III: Well, Justice Ginsburg, I wouldn't use the term precipitously, but the complaint was filed on March 24 of 1998. Normally, in the case of a mass disaster, for example, there would be immediately a motion for an injunction and a notice to potential claimants that goes out. That was not done in this case until May 11, 6 weeks or so after the initial complaint, and it was not done until after the State court case had been filed. What they did was, they filed a limitation case in the Federal court and then sat on it, waited to see if Lewis was going to institute suit or not. When he did, they obtained the injunction restraining prosecution of the suit, and--
Ruth Bader Ginsburg: And their limitation proceeding was filed in which court?
Roy C. Dripps, III: --It was filed in the Eastern District of Missouri, United States District Court for the Eastern District of Missouri, across the river from Madison County, Illinois.
Ruth Bader Ginsburg: And--
Roy C. Dripps, III: Rather than filing it in the Southern District of Illinois.
Ruth Bader Ginsburg: --There was... seemed to be a concession that if only you had asked for a jury trial you'd be home free, because you can't get a jury trial in admiralty and that's what the savings to suitors clause saved.
Roy C. Dripps, III: And I think the Linton case from the Fifth Circuit in 1992 addresses that point specifically, Justice Ginsburg, and they say that the saving clause saves a nonjury Jones Act case because that's part of the seaman's remedy under the Jones Act. The Jones Act's election language says the seaman has the right to maintain an action at law or... with or without a jury and, by incorporating the Federal Employees Liability Act, he can do it in State or Federal court.
William H. Rehnquist: The defendant cannot ask for a jury trial in that situation?
Roy C. Dripps, III: That's true, Chief Justice. The... and I think the Linton case goes on at great length to discuss that, and the significance of that I think is perhaps made more clear by the antiremoval provision in 28 U.S.C. 1445(a). The defendant cannot remove that case to Federal court where he would be able to trigger the Seventh Amendment and get a jury trial.
William H. Rehnquist: Yes, but it's one thing to say, for Congress to say it can't be removed, but it seems to me it's quite another, a separate thing for Congress to say that the plaintiff can have a nonjury trial and the defendant cannot move for a jury.
Roy C. Dripps, III: That is what the Linton case said, and that point wasn't specifically brought up in the briefs, although I believe this Court has addressed that issue. I'd have to go outside the briefs to give you a case cite.
William H. Rehnquist: Yes, well, it certainly isn't directly involved here, is it?
Roy C. Dripps, III: No, sir. No, sir, but this Court has addressed it.
William H. Rehnquist: Well, we said in Singer, that Singer case, in the criminal case that the Government can move for a jury trial even though the defendant doesn't want one.
Roy C. Dripps, III: And in this case Congress has specifically said that the injured employee has the option of determining whether or not it should be a jury or nonjury trial. That's what this Court said in the Panama Railroad case v. Johnson, from 1920. The Linton case simply followed that, and said that the fact that the seaman chooses the nonjury remedy in State court does not transform the case into something that is now removable because it's outside the scope of the saving to suitors clause. And that ties in with this Court's decision in the Red Cross Lines case, where it concluded that statutory remedies are saved remedies, and in this case Mr. Lewis is a seaman invoking his rights under the Jones Act, which is a Federal statute. Accordingly, that remedy is saved to him by the saving to suitors clause, and Congress' decision to confer the right to select the forum and the form of trial on the seaman is also saved by the saving to suitors clause. In contrast, the vessel owner's rights in this case have been fully protected by Lewis' stipulations. We've guaranteed their right to seek the exclusive jurisdiction of the Federal admiralty court, and in that case their Federal statutory rights are fully protected, but by precluding us from being able to preclude in State court, they are destroying the rights that Congress has conferred upon us in the Jones Act and preserved from the exclusive Federal jurisdiction through the savings clause.
Ruth Bader Ginsburg: Well, what have you conceded with respect to the limitation forum, because there'll be nothing... there'll be nothing... the only... this is the only lawsuit, this Jones... this is the only claim, so they have a shell of an action, but there's nothing to fill the shell because this case will go on in the State court, there'll be a decision, there's more than enough money in the till to pay the judgment, so what have you conceded by letting them keep the limitation action?
Roy C. Dripps, III: Justice Ginsburg, what we've done is guaranteed that their limitation action will be successful. They have limited their liability. They've capped their liability.
Ruth Bader Ginsburg: That your... that's your concession, that your claim is for less than the--
Roy C. Dripps, III: Absolutely, although... and I don't think that's necessary, though, to a resolution of the case. If we look back at the Langnes case, which was a Jones Act case, the Court's decision simply hinged on applying the saving to suitors clause so that both statutory doctrines could be implemented, which is what I'm asking this Court to do now, rather than to pick one in an effort to destroy the other, and that is the goal, I think, of this case.
David H. Souter: --Well, your... what's left of the... what's in the shell, I guess, is a kind of interrorum jurisdiction to, in effect to guarantee the concessions, and it may never have to be... presumably it will never have to be exercised, but you're conceding that it could be.
Roy C. Dripps, III: Justice Souter, that's right. The... in the event that a State court judgment would be entered in excess of the limitation fund I think they have an absolute right to go back into the Federal court and say, wait a minute, Lewis agreed that in order to get to State court his... our liability would be capped, and at that point the Federal judge would have the right to enter an order limiting their liability. I don't think there's any dispute about that.
David H. Souter: All right. To keep it simple, on res judicata they could simply enjoin collection beyond the conceded limitation.
Roy C. Dripps, III: Sure.
David H. Souter: Yes.
Roy C. Dripps, III: But they don't have the right to go beyond capping their liability, which is what they're seeking to do. They're seeking to shift the forum from the State court, which has been guaranteed to us by Congress, into the Federal court so that the liability and damage determination can be made there, and that's what we say is improper.
Ruth Bader Ginsburg: Do I correctly understand the picture on this exoneration that would go on if you... say you did have a collision, would go on in the admiralty forum, that the function is served by the defense that the shipowner can put into the Jones Act claim that is, there was no negligence here, and that is effectively what the exoneration plea would do?
Roy C. Dripps, III: In some ways, Justice Ginsburg. Now, if I understand the question correctly, I don't believe that the exoneration rule is an incorporation of Congress' allowing them a defense under the Jones Act. I think that defense has to be taken in the context of the statute, and they can choose to defend and require us to put on our proof of negligence, but only in the context of the forum grant that is given to the employee by Congress.
Ruth Bader Ginsburg: From the shipowner's point of view, it's one thing to say the shipowner itself had no involvement in the negligence, it was the other deck hands. It's a respondeat superior situation. That's one thing. Another thing is, there was no negligence by anybody at all, and I thought that that was the equivalent of the exoneration plea, that nobody was negligent at all, as distinguished from, maybe we have respondeat superior liability, but we should be allowed to limit that.
Roy C. Dripps, III: That's true, that is the essence of the exoneration claim, and that's what they want the Federal court to decide. The two responses to that are, first of all, the Langnes case from this Court essentially held that the exoneration claim was not sufficient to preclude dissolution of the injunction because, as I noted earlier, in Langnes the district court had, in fact, exonerated the vessel owner. This Court nonetheless required the injunction to be dissolved and the case to go back to State court.
Ruth Bader Ginsburg: Well, that I don't follow, because if there was a determination of exoneration, that is, no liability at all, not limited but no liability at all, why wouldn't that have been preclusive in State court?
Roy C. Dripps, III: If it had not been reversed by this Court it would have been preclusive.
Ruth Bader Ginsburg: Ah.
Roy C. Dripps, III: But this Court said that determination has to be made in State court and not in Federal court.
Ruth Bader Ginsburg: What determination?
Roy C. Dripps, III: The determination of liability and damage, and once it's made in State court, it is preclusive of the exoneration claim in Federal court under the rule of the Benefactor, which this Court decided in 1880.
Ruth Bader Ginsburg: But if the Federal court had made the determination first, and that... and hadn't been reversed, then that would be preclusive.
Roy C. Dripps, III: Yes, it would, but the Court reversed it because the determination should have been made by the State court in the first instance rather than the Federal court, and that's the essence of the Langnes holding, that we're implementing the Jones Act's grant to the seamen, preserved through the saving to suitors clause, of the right to proceed in State court, rather than be forced into Federal court by the shipowner, and that holding was made without the presence of any stipulations regarding res judicata, and this Court said that the case will go back to State court for that determination. The other--
Ruth Bader Ginsburg: Well, that sounds like, entirely in sync with my suggestion that the defense of no negligence at all, which can be put into the Jones Act proceeding, is the equivalent of getting, in the Federal court, exoneration.
Roy C. Dripps, III: --That's absolutely true, Justice Ginsburg. They have the right in State court to defend, require the plaintiff to prove negligence, causation, and damage. They will be getting in the State court the benefit of that defense that they seek to assert in Federal court. They are not being deprived of any rights by proceeding in State court, and their Federal right of limitation will be guaranteed to them by the stipulations that we filed waiving res judicata with regard to the issue of limited liability and stipulating to the exclusive jurisdiction of the district court to decide the limitation issues. Those protect their Federal rights, and their right to defend and require proof of negligence and the other elements of the plaintiff's case are all things they can assert in the State court. The other reason that the exoneration rule should not be permitted to control disposition of this case and we're required to be brought into Federal court is because at that point we do get into the rules enabling analysis and I simply wanted to mention the Henderson case that this Court decided in 1996, which set forth four factors that the Court considers in determining whether or not a provision is substantive or procedural. Rule (f) meets each and every one of those. The Henderson Court indicated that the factors are, who may sue, which is answered by rule (f)(1), which says any vessel owner, on what claims, the amount of all demands in conflict, tort or otherwise, rule (f)(2), for what relief, exoneration, or limitation from liability under rule (f)(2), and within what limitations period, not later than 6 months after receipt of a written notice of--
William H. Rehnquist: When you say it meets every test. It meets every test for being procedural, is that what you're saying?
Roy C. Dripps, III: --For being substantive.
William H. Rehnquist: For being substantive?
Roy C. Dripps, III: Yes, Your Honor, and that's why I say that if the Court adopts the analysis that the respondent has offered, then we need to grapple with the Rules Enabling Act analysis, and in that case the provision of conferring a substantive right to sue by rule violates the Rules Enabling Act because it conflicts with the congressional statutory scheme of the Jones Act by abridging or modifying Lewis' right to sue in State court and enlarges the vessel owner's right to seek limited liability in Federal court.
Ruth Bader Ginsburg: I'm not following your argument to this extent. I thought all this came up originally not because of statutes, but because of court made doctrine in admiralty, and then that doctrine gets reflected eventually into rule (f). It's not a like a rule in place of a statute, where I would follow your argument very well, but it is taking what was, indeed, substantive law, but substantive law originally made up by courts.
Roy C. Dripps, III: Well, normally, Justice Ginsburg, I would agree with you that that is what the rules do. In this particular case, however, this Court's decision in the Benefactor specifically said that the fifty sixth rule in admiralty, which was the predecessor of current rule (f), was designed to circumvent the prevailing English rule requiring the vessel owner to admit liability. So in fact the rule has done the opposite of what you suggest. It has created a substantive right to sue for a determination of liability and damage, where in fact the common law, or the prevailing admiralty law, required the opposite, that the vessel owner admit liability, and that was the decision specifically of this Court. If there are no further questions, Mr. Chief Justice, I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Dripps. Mr. O'Brien, we'll hear from you.
James V. O'Brien: Mr. Chief Justice, and may it please the Court-- The issue that is presented on certiorari grant from this Court in this case is whether the district court in this case abused its discretion in lifting the injunction that was imposed upon the filing of the limitation of liability case and allowing the claimant to proceed with a nonjury case in Illinois State court, where he was a single claimant in the limitation and where the fund was, at least after the initial filing, deemed adequate. The Eighth Circuit answered this question in the affirmative, and held that since the remedy sought by the claimant, a nonjury trial, was already available in the limitation of liability court, that there was no saved remedy. In other words, there was no statutory right of the claimant implicated, and therefore the Federal district court in the limitation case was bound by its grant of jurisdiction under Article 3, section 2--
William H. Rehnquist: Well, do you think the district court's view would have been different had the right to jury trial not been given up?
James V. O'Brien: --Mr. Chief Justice, our position in the case, and I believe the position of the Eighth Circuit was that if a jury trial had been requested, then a remedy that was not available in the district court would have been sought and therefore a saved remedy would have been sought, and therefore the stay, assuming the single claimant exception and the adequate fund exceptions were met, would have been allowed to proceed in Illinois State court.
William H. Rehnquist: So this case hinges, in your view at any rate, on the fact that the plaintiff had waived the right to a jury trial.
James V. O'Brien: To a large extent it does. If I may--
Ruth Bader Ginsburg: You say that because you say, well then he doesn't need the State forum because he can get a nonjury trial in admiralty, but wouldn't one say equally, once the Jones Act plaintiff stipulates that he's not going to seek more than X amount of damages, you don't need the limitation proceeding?
James V. O'Brien: --Our position takes a step back, and our position looks back at the original origin of the single claimant exception that was set forth by this Court in Langnes v. Green, and what we say is that we know a number of things about what this Court... what the district courts have to do under the Limitation of Liability Act. Unlike some of the cases cited by the petitioner, where there is no limitation case, we know that when there's a limitation case on file there is exclusive Federal jurisdiction, and we know that the district courts are therefore bound to... exclusively to administer the rights of the limitation claimant and all... the limitation petitioner, excuse me, and all those claimants who make claim. The only way for any given claimant to exit from the limitation case is if they can, for lack of a better word, trump the limitation petitioner's rights to an exclusive determination in the Federal court with some statutory right, and in this case that would be... the source of that right would be 28 U.S.C. section 1333, the saving to suitors clause. Now--
Ruth Bader Ginsburg: I'd like to back up a little bit, because I don't think I followed you that far down the trail. That is, as I understand it, the whole reason for being of a limitation action is so that the shipowner will be able to limit the extent of his economic loss to the value of the ship. Now, once it is certain that that will in fact be the case, that there is no exposure beyond the value of the ship, what function does a limitation proceeding save... serve, other than to block what would ordinarily be a garden variety Jones Act case from proceeding in whatever forum the sailor chooses to sue in?
James V. O'Brien: --Because the Limitation of Liability Act has more than just to limit liability. It also has the purpose of allowing an exoneration to be pursued by the shipowner and, indeed, in Langnes v. Green, the seminal case that started this exception, the Court was very clear, this Court was very clear that the limitation court had both the power to decide exoneration and limitation. Now--
William H. Rehnquist: What provision of the limitation act gives you the right to have an exoneration proceeding?
James V. O'Brien: --Mr. Chief Justice, we believe that the entire act construed by this Court in the Norwich v. Wright case provides that right. Specifically, section 183, but also read in conjunction with section 185 and the entire statute.
William H. Rehnquist: And where is that in the appendix?
James V. O'Brien: Well, the--
William H. Rehnquist: I see it's at pages 1 and 2 of the petition for certiorari.
James V. O'Brien: --Yes, Your Honor. Well, the statute itself, of course, is in the United States Code, and under section 183 of title 46 the vessel owner is entitled to pursue the limitation of liability, and is--
William H. Rehnquist: But pursuing the limitation of liability is one thing. Getting an exoneration determination is another.
James V. O'Brien: --Yes, sir. Your Honor, going back to Norwich v. Wright, this Court on at least a dozen occasions since 1871 has decided that exoneration is a fundamental right under the statute and is part and parcel of the limitation proceeding.
Ruth Bader Ginsburg: Were any of those cases single claimant cases where the fund was adequate to cover the injury, or were they all what one thinks of as limitation case, a rather larger disaster?
James V. O'Brien: The early cases, Justice Ginsburg, typically involved a petitioner limit after a judgment had already been obtained in a district court. Indeed, the Norwich case that is the case cited in both briefs, and the original seminal case in limitation liability, involved such a proceeding, and the Benefactor, the second case after Norwich, also involved a shipowner that came in after a finding of liability in the district court. But when those early decisions came out construing the Limitation of Liability Act, for the first time... it had been passed in 1851... they had to decide what it meant, and there is an extended discussion in Norwich v. Wright about it, and in that case this Court stated that the American Limitation of Liability Act represented a departure from English law, because the English chancery courts, which had earlier heard limitation cases in England, lacked the power to investigate claims in admiralty, and therefore under English admiralty law the shipowner was required to admit liability. In the American courts, and under the limitation act as construed by this Court in Norwich v. Wright, a determination not only of limitation was undertaken, but also exoneration, and from that time forward--
John Paul Stevens: But wasn't that only on the assumption that there was jurisdiction under... just to seek limitation? As part of the proceeding they could seek exoneration, but was there any case where the only issue was exoneration versus liability?
James V. O'Brien: --Not per se, Your Honor. Not per se.
John Paul Stevens: And the word exoneration is not in the statute itself, is it?
James V. O'Brien: It is not found in the statute, although it does state... the statute does state that the vessel owner's liability shall not exceed the value of the vessel--
Antonin Scalia: Right, but that's quite different from saying it shall not exist.
James V. O'Brien: --Well, it also does not deny the district court... the same statute that gives the jurisdiction to decide limitation of liability does not deny to the district court the ability to decide exoneration.
John Paul Stevens: But wouldn't all these cases fit together if we simply held that in an appropriate case where the limitation of liability proceeding involves multiple claimants and an original intent to get more than the gross value of the ship, that in such a case, the... among the things the shipowner can do is seek a complete defense of a nonliability? Wouldn't all the cases fit together if we just held that's where the exoneration is appropriate?
James V. O'Brien: Well, certainly that's one option.
John Paul Stevens: Yes.
James V. O'Brien: And I... we would certainly urge that on the Court, and I believe it's part of the limitation act that the shipowner should be entitled to seek exoneration in any case in which it seeks a limitation as well.
William H. Rehnquist: The Norwich, for example, under the Norwich was decided long before the Jones act was passed.
James V. O'Brien: Yes, Your Honor.
William H. Rehnquist: Do you think the Jones Act affects the holding in Norwich in any way?
James V. O'Brien: We do not. It's clear that the rights that the seaman has under the Jones Act are subordinate to... in general to the rights of the shipowner to limit liability. In other words--
William H. Rehnquist: Now, why do you say that?
James V. O'Brien: --Because... for the reason that it's clear that if it had been a limitation proceeding with multiple claimants in a case where the claims asserted exceeded the value of the vessel--
William H. Rehnquist: Yes, but Langnes says the single claimant is different, does it not?
James V. O'Brien: --Well, what... Langnes really rests upon three distinct factors. Langnes says, first you have to have a limitation of liability case. Langnes says second, you have to have a single claimant, and third you have to have a request for a jury trial. Those, in our view, are the three pillars upon which that case was decided, and--
William H. Rehnquist: Do you think the request for a jury trial was essential to the holding in Langnes?
James V. O'Brien: --Your Honor, I do, and the reason is because it's the request for a jury trial that implicates a saved remedy. The request for a jury trial is what implicates a right under the saving to suitors clause, which in that situation exceeds the interest of the vessel owner in staying in Federal court.
Stephen G. Breyer: As I read it, you're trying... you seem to be trying to make the tail wag the dog. These early cases say, well, you know, if you're in Federal court, shipowner, trying to limit your liability, because we've had a collision and there are 42,000 plaintiffs and you've got to deal with this and just limit it to the vessel, well, as long as you're there, we'll try out whether you're liable at all. We'll try out exoneration. The only reason we're doing that... they didn't do it in England, but the Court says... we say, from time immemorial it was done in every other country, right? So--
James V. O'Brien: Yes.
Stephen G. Breyer: --So we'll do it. But if you're not here, what's the point of doing it, and you're not here if there's a single plaintiff or if there's an adequate fund. I mean, the reasoning of it would seem to me to be, if you're not here, and you can't get here because there's an adequate fund, for example, there's no reason for us to snatch the issue of liability away from the State court.
James V. O'Brien: Justice Breyer, I think it's key to look at Langnes v. Green and see in that case that this Court stated emphatically that the procedure under the Limitation of Liability Act was to first look at exoneration and then, if liability was found, to look at limitation issues.
Stephen G. Breyer: Of course that's true, provided that you are properly in the Federal court limiting your liability. My point is, suppose you're not, as is true here, for the reason that you already have an adequate fund. You have no basis to get into the Federal court if there's an adequate fund. Your only basis could be that we want to exonerate, but exoneration is there in case you're in anyway.
James V. O'Brien: Well, let me state that initially... the initial claim filed in this case did exceed the limitation fund, and so that at the time the vessel owner instituted the proceeding, that was certainly in play and, indeed, when the initial claim was filed--
Ruth Bader Ginsburg: How did you know that, because the Federal suit was filed second. You had your limitation... if I remember the chronology right, you sought limitation, and then a week later the Jones Act case was started.
James V. O'Brien: --The short answer is that we know in this jurisdiction, where the State court suit could have been brought, that tripping over a wire could lead to a judgment in excess of the value of the vessel, and so therefore the--
Ruth Bader Ginsburg: But this plaintiff--
James V. O'Brien: --vessel owner had a good faith reason for pursuing limitation.
Ruth Bader Ginsburg: --This plaintiff hadn't made any such claim then. You're basing it on other claims that were made against this shipowner?
James V. O'Brien: No. I believe the vessel owner, based on its experience, and based on its knowledge of the situation, felt that an accident had occurred during this voyage which might make its vindication under the Limitation of Liability Act a realistic legal possibility, and so a petition was filed. There's no rule that prevents a vessel owner from coming in before the claims are filed, just as there's no rule that prevents a vessel owner from coming in while claims are being filed or after they're filed, so the timing of the filing of the limitation of liability proceeding is really--
Ruth Bader Ginsburg: I brought it up in answer to your assertion, we knew that he originally had a claim in excess of the value of the vessel. You didn't know that specifically with respect to this plaintiff.
James V. O'Brien: --Well, knowing, I think, and having a good faith belief that the proceeding might be in the vessel owner's interest are too different things. I don't think there was any way to predict the future at the time the petition was filed, but certainly--
Ruth Bader Ginsburg: But you didn't have to make any prediction a week later.
James V. O'Brien: --That's true, because we shortly thereafter had a claim in excess of the value of the vessel.
Ruth Bader Ginsburg: And the prayer for relief was for in excess of 450,000 dollars?
James V. O'Brien: Yes. By stipulation, I think in the joint appendix at 69 the record reflects that the initial claim was in excess of the value of the vessel, and by stipulation--
John Paul Stevens: The question really is whether that did not satisfy the purposes of the limitation of liability proceeding.
James V. O'Brien: --Well, Justice Stevens, our position is that once the jurisdiction of the limitation code is validly invoked, which it was in this case, that jurisdiction attaches, and under the Constitution and laws the district court is obligated to decide all those issues, and the only way to escape... for the claimant in this case to escape that jurisdiction is to point to a definite statutory right that allows him to defeat Federal jurisdiction. Now, in this case it would be--
John Paul Stevens: But the statutory right that he's talking about, there's two ways to define it. One is the savings to suitors clause itself is a statutory right. He's entitled to invoke that, and it doesn't really say, only if he's seeking a jury trial.
James V. O'Brien: --That's true, and... but we know a number of things about the saving to suitors clause. We know that the rights under it are not absolute, and we know that because, number 1, a Jones Act claimant can have his case... excuse me. A limitation claimant, not a Jones Act claimant, can have his case removed to Federal court. We know that the saving to suitors clause doesn't protect the right of a bank, say, to sue a lender or a debtor on a first preferred ship mortgage. We know those kinds of cases are committed to the Federal court and can't be brought in a State court.
William H. Rehnquist: Well, what about the practical advantage of a plaintiff who thinks he's going to get a better verdict in Madison County, Illinois, than he will in the Federal District Court for the Eastern District of Missouri?
James V. O'Brien: Well, that is his right, to sue where he thinks he can obtain the best verdict, unless there's some kind of illegal forum shopping going on, but that really is what this case is all about.
William H. Rehnquist: I thought so.
James V. O'Brien: The vessel owner is entitled to pursue limitation where it believes the purposes of the act will be furthered, in other words, where it sees that it has an opportunity to invoke exclusive Federal jurisdiction to adjudicate the rights from some accident occurring... occurring during some voyage. And if I may address a point from--
Ruth Bader Ginsburg: Do I understand you, then, that the vessel owner in every case where the sailor chooses to sue in State court and not ask for a jury trial the vessel owner can always pick the forum instead by filing a limitation proceeding?
James V. O'Brien: --Unless he pursues a right, the claimant pursues a right that is preserved under the saving to suitors clause I would agree with that.
Ruth Bader Ginsburg: Well, what... you told me that the only thing that's preserved is jury trial, not the Jones Act claim, which is what I would have thought that... I would have thought, apart from entertaining your position that it's not the Jones Act claim, and the choice of forum that Congress has provided, but it's only the device of jury trial.
James V. O'Brien: Well, it's really... what it is is... let me refine my comment. What I'm really saying is that if the remedy is already available in the Federal court, and what the Eighth Circuit decided was that if the remedy's already available in the Federal court in the limitation proceeding, there is no saved remedy to pursue elsewhere, and so the... I think the issue for this Court is not so much jury versus nonjury in the abstract sense. The question is whether or not the specific remedy requested is available in the Federal court where exclusive jurisdiction is found.
Ruth Bader Ginsburg: Well, why isn't the remedy the courthouse that's closest to my home that's most convenient for me? Why isn't that the remedy that is saved, the ability to choose, irremovably, the venue?
James V. O'Brien: Well, the answer to that is that the rights under the saving to suitors clause are not absolute, and they never have been by this... held so by this Court or by any other Federal court. They're always going to be subject--
Ruth Bader Ginsburg: But your position was that that wasn't saved at all, because you could get a nonjury trial in the admiralty forum.
James V. O'Brien: --Well, I don't think the decision whether or not the nonjury trial is saved or not is necessary to this Court's decision, nor was it addressed specifically... in fact, it was reserved specifically by the Eighth Circuit. You don't need to get that far, and the reason is because under the rubric adopted by the Eighth Circuit, if the remedy sought is available already in the limitation court, the claimant's not allowed to go back, and it was already available, i.e. a nonjury trial, so the court below never needed to address whether a nonjury trial was specifically a saved remedy or not, nor does this Court need to decide that for--
Ruth Bader Ginsburg: So practically what the position you're urging on us comes down to is that the Jones Act plaintiff can get his choice of forum as long as he insists on having a trial by jury. If he doesn't insist on having a trial by jury, he doesn't preserve his right to choose the forum.
James V. O'Brien: --That's correct.
Ruth Bader Ginsburg: That's your position?
James V. O'Brien: That's correct.
Stephen G. Breyer: Why would that be? I mean, let's suppose that a Jones Act plaintiff does... could go... he could get into Federal admiralty court. He could get in, or he could do what he'd prefer to do, which is to file in the State. Why shouldn't he be able to file in the State unless there's some Federal reason that prefers the Federal tribunal?
James V. O'Brien: Well, the Federal reason that prefers the Federal--
Stephen G. Breyer: No, no, I mean, you're making both arguments. One argument is that there is a Federal reason and the Federal reason is the exoneration, and that's countered with the argument that there is no Federal reason where there isn't an independent reason for being in the limitation action, all right, so I'm taking the other part. Let's assume there is no Federal reason. If there is no Federal reason... he has the right come in the door, but there's no Federal preference. Why shouldn't he be able to go to the State court?
James V. O'Brien: --Well, Justice Breyer, I... number 1... my first response is, I don't believe that's our case.
Stephen G. Breyer: All right, yes.
James V. O'Brien: We do have a Federal reason for being here.
Stephen G. Breyer: Okay.
James V. O'Brien: And the second response--
Stephen G. Breyer: But if you didn't, if there were no reason favoring the Federal court, then would you say, give him his choice?
James V. O'Brien: --Well, I suppose that would be true, except that Congress has spoken to the situation when they've committed limitation of liability acts to the exclusive jurisdiction of the Federal courts.
Stephen G. Breyer: Okay, but if you're prepared to go that far, then the case turns on whether there is a Federal reason, and the Federal reason you say is exoneration, so I understand that. And then I'm back to the question I had before, which I'm not sure I had a satisfactory answer to totally, that really what this exoneration is is the tail and it follows the dog into the Federal court, and the only reason it's ever there was, historically in England they did this, what the courts thought were absurd, to force the shipowner to give up his right to exoneration in order to get in Federal court, and our court years ago said that's silly, no other country does that and we're not going to do it.
James V. O'Brien: Well, I would prefer to think of exoneration not as the tail, perhaps the other set of legs of the same dog. I think that the right to exonerate is half of what you have under the statute. The right to limit is the other half of what you have under the statute, and one can't be divorced from the other. You've got--
Antonin Scalia: You have the statute, but it doesn't appear in the statute, and what is your response to the fact that if the only reference to it is in the Federal rules, that's ultra vires?
James V. O'Brien: --Well, my response, Justice Scalia, is 130 years of decisions from this Court and others, at least a half dozen cases from this Court holding that in a proceeding under the Limitation of Liability Act itself now the court determines exoneration as well as limitation. It would be almost impossible for this Court to write exoneration out unless it were prepared to overrule all those cases.
William H. Rehnquist: Well now, are you saying that in the single claimant, stipulated claim less than the value of the vessel, we would have to overrule cases in order to rule against you here?
James V. O'Brien: No.
William H. Rehnquist: Well, I thought that's what you just did say.
James V. O'Brien: No. What I'm saying is, what Langnes v. Green tells us, and what Lake... which is the single claimant exception case, and what Lake Tankers v. Henn tells us, which is the multiple claimant case, or, excuse me, the adequate fund case, what those cases tell us is that when the claimant seeks a jury trial that it has been deprived of him in the limitation court, that under those circumstances there is enough of a... there's enough rights there for that claimant to trump the shipowner's right to be in Federal court, and they will then allow him to go back to State court assuming that on the one hand there's a single claimant, or on the other hand there's an adequate fund. But you can't look back at Lake Tankers v. Henn or at Langnes v. Green and write out of the Court's decisions the references to a jury trial being requested by the plaintiff. That is what in my view was the, really the moving force in those decisions that allowed those plaintiffs to go back.
John Paul Stevens: Well, of course, can't you just read that as the... this is a particularly strong reason for vindicating the plaintiff's right to choose his own forum, that in one forum he gets a jury and in the other he doesn't? That makes it a very appealing case, but I don't think you can necessarily deduce from that the conclusion that he wouldn't also have a right to pick the forum of his own choice without that feature.
James V. O'Brien: Justice Stevens, I don't think we'd be here if the courts had routinely held that you got a right to a forum. They haven't. What the courts have held, this Court and the Federal courts, and what the commentators have talked about for decades, is the right to a remedy, and the right to a remedy does not necessarily entitle him to go to a State court. It entitles him to a remedy.
John Paul Stevens: Well, he gets the same remedy whether it's a jury trial or a bench trial. He's seeking damages. That's the remedy.
James V. O'Brien: Well, the remedy, as the Court stated in Shilendez v. Luckenbach, the remedy is the means employed to seek the redress and in our view, and I think the cases bear this out, a jury trial is a specific form of remedy, a nonjury trial is another form of remedy. It's the means employed, and I think that there's really no question under the case law that a jury trial is in a class separate from a nonjury trial as far as the saving to suitors clause goes. They're different remedies. Now, they both seek judgments, but in a different way. If I may briefly address the rule (f) argument, the position urged by petitioner that rule (f) should be declared invalid is in our view extreme and not warranted by the case law. This Court in the Henderson case did not announce a general test for the determination of when a Rules Enabling Act rule would be ultra vires. It instead decided that rule 4 trumped the Suits in Admiralty Act provision requiring forthwith service of process on the basis that the rule was purely procedural. But if I may, under rule (f), three of the four items that petitioner urges are contained in rule (f) and that mandate that it's a substantive rule are found in the limitations statute itself, namely, who may sue, when they may sue, and the object of the suit and so therefore, even under the test that petitioner cites, rule (f) clearly does not meet the standard of a substantive rule that would be struck down under the Rules Enabling Act. Indeed, the limitation act addresses those items. And I turn again back to the original decisions by this Court in the Benefactor, in the Norwich v. Wright case, in which this Court had occasion to construe the act and, if you follow the language closely of those decisions the Court was not construing rules that it promulgated. The Court was construing rules that it promulgated. The Court was construing the act itself, and the original admiralty rules that were promulgated by this Court in the Norwich case, the original 50-some admiralty rules from 1871, were rules, but they were in themselves interpretations of the act as seen by this Court, and they included the right to exoneration. Now, if the limitation petitioner can come into court, and if he can pursue a limit... exoneration as well as limitation, then by definition the Court has exclusive jurisdiction over both of those subject matters and the limitation claimant, in this case the Jones Act seaman, can return to State court only if he demonstrates that the remedy he wants is not available in the Federal court. If there are no further questions--
William H. Rehnquist: Thank you, Mr. O'Brien.
James V. O'Brien: --Thank you, Your Honor.
William H. Rehnquist: Mr. Dripps, you have 6 minutes remaining.
Roy C. Dripps, III: Thank you, Mr. Chief Justice. Mr. O'Brien indicated that three of the four items that are in rule (f) are in the statute. What he neglected to mention is, as what Justice Scalia asked earlier, the one that's not in the statute is the one that's critical to his analysis, which is the exoneration provision, and that's not in the statute. Mr. O'Brien relies heavily on the Benefactor, and I would simply refer the Court to the quote from the Benefactor. It's at 103 U.S. 241. It's at page 16 of the reply brief, and the Court said that hence, this Court, in preparing the rules of procedure for a limitation of liability, deemed it proper to allow a party seeking such limitation to contest any liability whatever. That is not the statement of statutory construction. That is a statement of legislative intent. We're adopting these rules so that the party can contest the liability. Now, that is exactly what is forbidden by the Rules Enabling Act, yet that is what this Court said it was doing in 1880. Justice Stevens and Justice Breyer both asked about, in essence, whether there would be a right to a pure exoneration claim in Federal court, and I do want to point out that both the Fifth Circuit in the Fect v. Murkowski case and the Seventh Circuit in the Joyce v. Joyce case have said no, that unless there is a viable claim for limitation you cannot come in and ask for exoneration, and I think that is the rule that this Court should adopt. The Langnes decision, as Justice Stevens noted--
John Paul Stevens: Well, I... go ahead. That's all right.
Roy C. Dripps, III: --as Justice Stevens noted does not require a jury trial, but it simply said that a jury trial is one aspect that makes the State court forum desirable, and that's part of the Jones Act remedy to allow the injured employee that option of choosing either State or Federal court, and whether or not to have a jury trial in either forum. To get to the respondent's not otherwise available test, this Court is going to have to say that the saving clause does not protect statutory remedies, particularly the statutory remedy afforded by the Jones Act, which allows the employee to choose the forum that the case will be tried in. That, however, is exactly what the saving clause was designed to do, and that is why this Court should reverse the Eighth Circuit's decision and reinstate the decision of the district court dissolving the injunction.
William H. Rehnquist: Thank you, Mr. Dripps. The case is submitted.


Earl Warren: Number 217, Josephine Goss, et al., Petitioners, versus The Board of Education of the City of Knoxville, Tennessee, et al. Mr. Greenberg.
Jack Greenberg: May it please the Court. These are two school segregation cases, consolidated for argument before this Court arising in Knoxville and Davidson County, Tennessee. Davidson County is the suburban county surrounding the City of Nashville. Both of these cases were tried and decided separately in the District Court and in the Court of Appeals, but they both present common questions of law and fact and are consolidated here for argument. The Knoxville case was filed on December 1959 and involved at the outset a grade a year, 12-year desegregation plan approved by the District Court. The Sixth Circuit Court of Appeals held that a 12-year plan was not fast enough and reversed on this aspect of the case. Their characterization of the Board's plan appears on page 161 of the record in their opinion. And I'd like to quote a sentence briefly. The evidence does not indicate that the Board is confronted with the type of administrative problems contemplated by the Supreme Court in the Second Brown decision. And further down on that page, the position of the Board that it would continue to operate under these unenforceable laws until compelled by law to do otherwise does not commend itself to the court for the acceptance of a plan that provides for a minimum degree of desegregation. So I as stated, it disapproved the 12-year aspect of the plan but it -- and it also in a separate opinion later decided, disapproved the plan of the Board with regard to vocational school. And neither of those two aspects of the case are involved in this petition. However, the Court did uphold a racial transfer plan which was part of this desegregation plan and I will describe this plan in a moment because it is identical to the racial transfer plan that appears in the Davidson County case. The Davidson County case was filed in September 1960 and it too involved a grade a year plan. The District Court held that this was not fast enough under the standards set down by this Court in the Second Brown decision. And it required the respondents to desegregate four grades in January of 1961 and file by September of 1961. In other words, to catch up with the City of Nashville with which it was contiguous. The District Court refused to allow the named individual plaintiffs not covered by the grades of the plan to receive a nonsegregated education. Now, the racial transfer aspect and the right of the individual plaintiffs both were taken to the Court of Appeals. The Court of Appeals upheld the racial transfer aspect and also upheld the refusal to allow the individual petitioners to obtain a desegregated education and grades other than those covered by the plan.
John M. Harlan II: The (Inaudible) question isn't here?
Jack Greenberg: No, I was just about to say. We brought the racial transfer aspect of both cases and the right of the individual plaintiffs here. And this Court granted certiorari only with regard to the common question of both cases and that is the racial transfer aspect of the plan. Both cases involved racial transfer provisions which are almost entirely identical in language. First -- and they both appear on page 4 of our brief. First, both school systems adopted a general transfer provision such as you might find in any school system in such as they had previously had. That appears on page 4 of the brief in the footnote saying that transfers would be allowed when good cause therefore is shown in Knoxville and Davidson County also using the words when good cause therefore is shown. In addition to that, both plans provided that under certain circumstances which depended upon race, the right to transfer would be automatic and those circumstances are as follows: a. When a white student would otherwise be required to attend a school previously serving colored students only, b. When a colored student would otherwise be required to attend a school previously serving white students only, c. When a student would otherwise be required to attend to school where the majority of students of that school or in his or her grade are of a different race.
Potter Stewart: You mean that Mr. Greenberg -- you're saying that the transfer will -- you mean, was automatically be provided?
Jack Greenberg: Yes, I was just about to come on page 105 in the record. That is elucidated by one of the respondent in the Knoxville case. The question “Under, your plan, this provision of Paragraph 6 a, b and c will constitute automatic basis for transfer. All that a student has to show is that he meets these conditions and then he will be automatically entitled the transfer, administratively more or less?” Answer: “If he requests it?” Question: “Yes.” Answer: “If he requests it.” That's Knoxville. Now, in Davidson County on pages 219 and 220 of the record, we have the same thing. Question by Mr. Williams.
John M. Harlan II: What page is this?
Jack Greenberg: 219 and 220. “That under this provision in Paragraph 5 of the plan setting for these racial conditions based on a minority race transfer, the effect of it is to permit a child to choose segregation outside of his zone but not to choose integration outside of his zone. That is true, isn't it?” Answer: “The child and his parents can choose, yes.” Further down on the page, Mr. Williams makes a statement, the accuracy of which is confirmed by the witness. “It's substantially identical to the city provision, if Your Honor please, but it was not brought to this Court's attention at the time that the city provision was approved, exactly how the city provision operates as Mr. Moss had described. It has been operated so that instead of going to the school in his zone and there seeking a transfer, no white child in the city has ever seen one of the allegedly integrated schools to which he was assigned. No Negro child who didn't affirmatively seek a transfer to an integrated school has ever seen the integrated school to which the National Board led this Court to believe he was assigned.” So that presents a little different, a little more than was before the Court in that case. And then he asked the witness, “And that is true, what I have stated, isn't it, Mr. Moss? That is the way the plan operates in the city and that's the way you intend to operate it?” Answer: “That is correct.”
Potter Stewart: The City of Nashville plan is -- it was something as a third plan or at least the third case?
Jack Greenberg: That's not involved in this case except that both of these respondents adopted that plan.
Potter Stewart: And say that that's -- they're going to operate it (Voice Overlap).
Jack Greenberg: Right, that's quite clear. And later in the record there is testimony by the Superintendent of Nashville further describing this plan.
Potter Stewart: Davidson County is the area around Nashville, isn't it?
Jack Greenberg: Yes, the suburban county surrounding Nashville.
Potter Stewart: Suburban area around Nashville.
Jack Greenberg: Yes.
Potter Stewart: And do I understand that the transfer provisions found in the footnotes -- well, found in the footnotes, Footnote 2 on page 4 of your brief, are an addition to these -- this other -- this other (Voice Overlap) --
Jack Greenberg: Yes. Yes, they're the general transfer provision and the specific racial transfer provision.
Potter Stewart: Are you attacking those that appear in -- on Footnote 2?
Jack Greenberg: No, we're not attacking --
Potter Stewart: You're not.
Jack Greenberg: -- the general transfer provision, no. Now, the Nashville experience upon which both of these Boards based their plans is described on page 226 of the record by a Professor in Vanderbilt University who made a study of how the plan operated actually and this is without any contradiction. And he testifies, the Nashville experience would indicate mass transfer, mass paper transfers of whites back into what is historically the white school, of Negroes remaining in what is historically the Negro school. I would say that the transfer provisions tend in my opinion, tend to keep the system oriented toward a segregated system with token desegregation. This would be the major thrust. Officials of the Knoxville Board testified that in adopting this plan, it was their expectation that it would perpetuate segregation on 104. This -- in a question: “This inequality of operation that I suggested with respect to the operation of Paragraph 6 a, b, c of this plan does tend to perpetuate segregation, does it not, sir?” And this -- what the Board member testifies, “Well, I suppose I would have to answer, yes, segregation is perpetuated thereby.” And on 108, another Board member testifies to precisely the same effect. Now, in the Davidson County case where there is evidence of experience of the operation of the plan, Mr. Garrett, who's the Director of Child Welfare and Attendance testifies on -- I believe it was page 265 of the record. And a little earlier, that has to be read in conjunction with something earlier. Now, how many children -- on 256, the question is put as to how many children were illegible for transfer? And the answer is that 693, that is 405 Negro children and 288 white children. And the evidence is quite clear that only 51 of the Negro children attended the white schools and none of the white children attended the Negro schools. Now, that evidence as to the white children does not appear in the printed record but is on page 52 of the transcript of the record, that particular portion was not printed in this Court.
John M. Harlan II: Do you say that the statute say that (Inaudible)
Jack Greenberg: This transfer provision? Yes, we do but we also are aware of the fact that the court might see --
John M. Harlan II: (Inaudible)
Jack Greenberg: The Court of Appeals said it was not bad on its face. The -- that's the Sixth Circuit, it relied on the Kelley case, the Nashville case which had previously approved this plan. On the other hand, as I was about to argue, the Fifth and the Fourth Circuits have held that it is bad on its face and the Sixth Circuit as I've stated relied on the Kelley case. Now, the Fifth Circuit --
John M. Harlan II: (Inaudible)
Jack Greenberg: That's correct. You can have two children similarly situated, they might be neighbors, they both be attending the same school.
John M. Harlan II: (Inaudible)
Jack Greenberg: Well, that's one. We attack this on three separate grounds. On that ground -- on the ground that this is state enforcement, school board enforcement of the private prejudice of an individual person, and on the ground that it tend to perpetuate segregation within the system but we attacked it in three different way.
Potter Stewart: I suppose -- maybe you've pointed this out in your errata that the last word under Subsection c on page 4 of your brief should be race in --
Jack Greenberg: Yes, (Voice Overlap) instead of rate, that was a misprint.
Potter Stewart: When you talk about the white schools and Negro schools, this is shorthand for talking about schools which should be -- which formally were all white or formally were all Negro, is that it?
Jack Greenberg: Well, school -- you see, both of these school systems had had two sets of school zones, school zones for Negro schools and school zones for white schools.
Potter Stewart: Yes.
Jack Greenberg: And I'm referring to it in that way. Now, when the zones are coalesced as they are in a stair-step basis. The transfer plan contemplates -- refers to schools previously for whites only and previously for Negros only. And that is just the way of saying Negro and white schools.
Potter Stewart: And that's what you mean when you say Negro school or white school as you said in your argument?
Jack Greenberg: Yes. Yes, Your Honor.
Potter Stewart: I don't quite understand the two sets of school zones. Does this mean they were overlapping?
Jack Greenberg: Yes. Well, that's quite commonly--
Potter Stewart: In the same block?
Jack Greenberg: Oh, yes. You could have schools --
Potter Stewart: Assuming a mixed neighborhood on the same block, you -- you probably had one white (Voice Overlap) --
Jack Greenberg: This is typically (Voice Overlap) --
Potter Stewart: (Voice Overlap) next to each other, one -- or one zone -- school zone or one on the other depending upon the race of the family living in the house?
Jack Greenberg: This is typically the way that school segregation is made. Taking either two sets of school zones, or two sets of bus routes, or sometimes two sets of just verbal descriptions but somehow rather the Negro children have to be told which Negro schools they go to and the white children have to be told which white schools they go to. And those are the separate zones and they inevitably overlap.
Potter Stewart: And at least in certain cases on -- I supposed there are --
Jack Greenberg: Well, unless --
Potter Stewart: -- cases where -- entirely a white neighborhood where they don't know it overlaps, or an entirely Negro neighborhood with a school in the neighborhood.
Jack Greenberg: Well, but a Negro child in that white neighborhood, if he live there (Voice Overlap) --
Potter Stewart: Well, I'm assuming --
Jack Greenberg: -- it occurs --
Potter Stewart: I'm assuming that there is no Negro child there. In other words, that it's completely a white neighborhood.
Jack Greenberg: Well, this -- nevertheless the school zones necessarily as a matter of just drafting must coincide with the entire boundaries of the city.
Potter Stewart: Yes.
Jack Greenberg: I imagine -- well, they always do. You have a city and what is -- what usually happens in most of these cases if you look at the records, are they're just two maps. Well, one map with red lines and green lines. That's invariably --
Potter Stewart: Is that the record in this case?
Jack Greenberg: Well, that issue was not -- is not here but there were two sets of school zones. In fact, the plan them -- the plan itself almost, I think, refers to that.
Potter Stewart: Well, the issue -- I mean this had -- it does have to do with the issue which is here, which is the request for transfer from -- why a white student to go to what was formally an all white school and by --
Jack Greenberg: Yes.
Potter Stewart: -- colored student to go to what was formally an all Negro school.
Jack Greenberg: Well --
Potter Stewart: That's what this plan -- come in.
Jack Greenberg: Yes. Well, the contemplation, these old zones would have to be in a sense maintained because no one would know what school they formally would have attended except under the obsolete map --
Potter Stewart: Yes.
Jack Greenberg: -- which is being employed for the purpose of the transcript. The Fifth Circuit in the Boson case, Boson against Rippy, a Dallas school case, in referring to the racial transfer plan and referring to the Kelley case, said nevertheless with deference to the views of the Sixth Circuit, it seems to us the classification according to race for purposes of transfer is hardly less unconstitutional than such classification for purposes of original assignment to a public school. And then it quotes from the language in Yick Wo against Hopkins and rather in Hirabayashi against the United States, they quote -- that cites they quote. Now, the Fourth Circuit --
Hugo L. Black: What's the Fifth Circuit case?
Jack Greenberg: Boson versus Rippy. That it -- a Dallas school case and that is at 285 F.2d and I'm quoting from page 48.
Potter Stewart: Judge McAllister's opinion in the Kelley case involved the Nashville plan.
Jack Greenberg: That's correct. Yes.
Potter Stewart: And this virtually identical of these two.
Jack Greenberg: Yes. Well, the -- it was --
Potter Stewart: That these two are copies.
Jack Greenberg: Yes. And the Fifth Circuit addresses itself to the Kelley case and the Nashville plan saying that it disagrees. The Fourth Circuit in an en banc opinion by Judge Sofaer in the Charlottesville's case, Dillard versus School Board of the City of Charlottesville at the 308 F.2d at 923 of that opinion states, “It is of no significance that all three of them regardless of race are first assigned to the schools in the residential zone and all are permitted to transfer, if the assignment requires the child to attend the school where his race is in the minority, if the purpose and effect of the arrangement is to retard integration and retain the segregation of the races, that this purpose in this effect are inherent in the plan can hardly be denied.” The school board is well aware that most of the Negro pupils in Charlottesville reside in the Jefferson zone and that under the operation of the plan, white children residents therein will be transferred as a matter of course to the schools in the other zones while the colored children in the Jefferson zone will be denied of this privilege. The seeming equality of the language is delusive. The actual effect of the rule is unequal and discriminatory. Now, in two cases in the Sixth Circuit, District Court cases, the District Judges both have disagreed with the Sixth Circuit. One at the Chattanooga case and the other is the Obion County case. Both District Courts have -- notwithstanding the ruling of the Sixth Circuit in the Kelley case, they agreed with the Fifth Circuit in the Boson case. One of those cases is now on appeal before the Sixth Circuit, and it has not yet decided it and the other case has not been appealed.
Potter Stewart: Those are both cited in your brief Mr. Greenberg?
Jack Greenberg: Yes, sir. Yes, they are. At least, I think they both are. Now --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, we have a three-fold argument, as I say.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, one of the things that just happened in connection with this plan is that there hadn't been any experience with attending the school from which he transfers out. The transfer is all paper work while the child continues to reside exactly in the school which he had previously been attending. Our position is that if this general transfer plan, general transfer that go into the footnote were in fact operated in a way to achieve the same result, they would be equally bad. And in fact, that brings us to the brief with the City of Knoxville to which we've referred in our reply brief. Knoxville says, “Well, we don't have to use the racial transfer plan. We can use the general transfer plan and we'll come up the same way.” And --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, well they said, “We'll use the general transfer plan. We'll use the general transfer plan, we'll come out the same way.” They said of course other school boards may not be staffed and equipped to do it. And if they don't have to do it, then we shouldn't have to either. That's the -- as I understand their argument. Our feeling is that --
Potter Stewart: So you don't attack these general provisions here.
Jack Greenberg: Well, we don't attack them in general. We would attack them if they were used in fact as a matter (Voice Overlap) --
Potter Stewart: Well, that would be another case, --
Jack Greenberg: Yes.
Potter Stewart: -- some future case there.
Jack Greenberg: Yes. Well, every school system has to have some general transfer provisions but we argue on our reply brief that it would be most dangerous if a rule were approved to allow general transfer to actually be employed when race is the real reason because the deliberate speed formula necessarily is a formula that requires some generality and most of the segregation that is being maintained in the face of the Brown decision is being maintained under other labels under purporting to comply with the deliberate speed formula. Now, if any type of a racial factor at all were permitted to creep into that and I think the Court has been very careful in the Little Rock opinion and in the Brown -- second Brown decisions to exclude any racial consideration. If any type of racial consideration were permitted to creep into it the possibilities for evasion would just be multiplied almost infinitely and we would submit that though of course the school system should and has to be permitted to allow transfer in general grounds, it ought not to under any circumstances be permitted actually to take race into account.
Potter Stewart: But do you suggest Mr. Greenberg that this case is controlled by Brown versus Board of Education?
Jack Greenberg: I think to some extent, it certainly is. I mean, as to when if you can't assign children on the basis of race, they certainly ought not to be able to transfer on the basis of race. This is a racial distinction in a sort of secondary school assignment.
Potter Stewart: Would it be fair or would it be correct or not in your opinion to say that the -- what was fundamentally decided in Brown against Board of Education was that a public school or school system could not keep children out be -- based upon the color of their skins?
Jack Greenberg: Right. That's correct.
Potter Stewart: That's the basic decision in this.
Jack Greenberg: Yes, that's correct.
Potter Stewart: Now, this has to do with space at least with what individual, private individuals affirmatively want to do.
Jack Greenberg: Well, I in a preliminary way indicated earlier I think the three different responses we would have to that suggestion. And that is that first of all, this is a racial rule which has been set down by the State and by virtue of this racial rule, a white child was permitted to transfer out of a particular situation where a Negro child identically situated except for race is not permitted to transfer out. So this is the State itself imposing a racial standard.
Byron R. White: But if he hadn't -- if they hadn't impose the rule in the first place and some Negro children and some white children came and requested a transfer, you would make the same -- have the same objection, wouldn't you?
Jack Greenberg: If they were this -- in general, if they -- under a general type of transfer provision.
Byron R. White: Yes.
Jack Greenberg: Well, I think the school board is obligated to (Voice Overlap) --
Byron R. White: And it was admittedly and they -- and when they made the request of the general transfer, it was admittedly administered strictly on a racial basis. I mean, (Voice Overlap) --
Jack Greenberg: We would have the same object --
Byron R. White: Just that the -- the white child didn't want to go to the Negro school. The Negro child didn't want to go to the white school. That's all there was to it.
Jack Greenberg: We would have the same objection if this child when to the school board and said, “Look, I don't want to go to this school because these children are of the other race”, (Voice Overlap) --
Byron R. White: So aren't you really relying -- have to rely on Shelley and Kraemer right on it's -- that no matter how private the discrimination that the State uses any means to --
Jack Greenberg: Certainly.
Byron R. White: -- to enforce it, that it's bad.
Jack Greenberg: Was certainly that and --
Byron R. White: And isn't that -- aren't you driven to that, to the -- just to (Inaudible) --
Jack Greenberg: Well, no, I don't feel driven to it. But I certainly rely in it and I feel that -- I feel this -- this is unconstitutional when looked at from a variety of different angles. That certainly is one of them. Another way of looking at it is the concept in NAACP v. Alabama. It's a combination of private and state action which achieves a discriminatory result. But I think that perhaps the --
Potter Stewart: Well, there's nothing in Brown against Board of Education that said that any given public school had to have a integrated student body, was there?
Jack Greenberg: No.
Potter Stewart: Nothing at all. It simply said that a public school could not keep out a student who is otherwise qualified merely because of the color of his skin.
Jack Greenberg: That's correct.
Potter Stewart: But it didn't say that a -- any school system had to integrate this --
Jack Greenberg: That's correct. I would --
Potter Stewart: -- isn't it?
Jack Greenberg: And perhaps the only system --
Potter Stewart: Or to have a mix of the student body from the point of your race.
Jack Greenberg: That's correct. The -- perhaps the only school system that I know of that permits completely voluntary transfers in enrollment is in Baltimore where I understand that traditionally before the Brown decision, there were two separate school systems, Negro and white. And anyone could attend any school that he wanted and it worked very well. It's an administrative matter. Now, after the Brown decision, they merely took race out of it and anyone is -- been permitted to attend any school he desires. And no one has made any claim that particular racial proportions in particular schools may or may not be unconstitutional. That issue has not arisen. But here is a place where you have maintained segregation, where children are assigned in the desegregated grades to particular schools because of their zone. And then on the basis of race are permitted to transfer or refuse permission to transfer and all this results in a further segregation of -- in a system, in other words, a regression to the prior segregated system.
Potter Stewart: But it happens only upon the voluntary affirmative wish of private individuals, doesn't it?
Jack Greenberg: Well, this not an entirely voluntary school system. This is -- if this were Baltimore, anyone went in a voluntary basis. But this is a place where a Negro child cannot transfer out and white child can transfer out. So, it's not voluntary. It's voluntary in a sense but it's state-enforced in the sense that the State recognizes this and implements it. And this tends to as -- has been -- as appears in the record, to further segregate the system. In fact, what happens is, that as white children transfer out of a particular school, the school zone necessarily must be expanded to complete the capacity of the building to the extent that Negro and white children are school scooped up by this expansion of the zone. The white children then transfer out and so you get segregated schools with greater -- covering greater and greater areas. And indeed that's precisely what the Court of Appeals --
Potter Stewart: I'm not sure that I fully -- I'm unable to I guess, that a white child can transfer out and a Negro child cannot, out of what, referring to the (Voice Overlap) --
Jack Greenberg: Well, a school zone is set up of so many square --
Potter Stewart: On page 4, just referring to the provisions, I'd -- I want to be sure I understand you. A says that a white student can transfer out of -- otherwise be required to attend a school which was formerly serving colored students only. And b says that a colored student can transfer out if he is otherwise be required to attend a school formerly serving white students only. And c is -- as to the -- with the majority school and --
Jack Greenberg: All grades.
Potter Stewart: And he -- and a student of either race (Voice Overlap) --
Jack Greenberg: Right.
Potter Stewart: -- could buy the advantage of that.
Jack Greenberg: That's correct.
Potter Stewart: Now, where is the racial discrimination there?
Jack Greenberg: Well, let's assume a school in which Negroes are in the majority, 60% Negro and 40% white. All those white children can and in fact under the experience of this plan have transferred out to other white schools.
Potter Stewart: Both -- all the Negro children could do the same thing if it (Inaudible) --
Jack Greenberg: No. The Negro children cannot follow those white children because they are in a school in which their race is in the majority.
Speaker: (Inaudible)
Jack Greenberg: Yes.
Speaker: (Inaudible)
Jack Greenberg: Now, the Negro child in some other school across town where he is in a racial minority, he may transfer back to some colored school. This gets back to the Shelley v. Kraemer language of indiscriminate imposition of inequalities.
Potter Stewart: Well, that's where it does, gets you as my Brother White suggested, doesn't it?
Jack Greenberg: Well, I was referring to Shelley in a -- from (Voice Overlap) --
Potter Stewart: A more different (Voice Overlap) --
Jack Greenberg: -- in a different kind and a different context. But the Negro child cannot transfer out of school that a white child can transfer from. Now, some other Negro child and some other school might be able to transfer out but this individual can't.
Potter Stewart: But a white child cannot transfer to a school that a Negro child could trans -- could transfer from --
Jack Greenberg: That's correct.
Potter Stewart: -- equally, isn't that true?
Jack Greenberg: That doesn't help --
Potter Stewart: The thing -- the system is a --
Jack Greenberg: Yes. Well, and this tends to perpetuate segregation in the system and we submit that the Brown decision equivocally erred when we're talking about school system.
Potter Stewart: Yes.
Jack Greenberg: That your right is the right to go to school in a desegregated school system, not the right of a particular child to attend a particular structure. To the extent that these plans perpetuate segregation in this system, we feel that is even more vicious than the particular denial of a right to transfer a particular child.
Arthur J. Goldberg: Do you say that the -- a system that any child could go or transfer to a school (Inaudible)
Jack Greenberg: We -- no. It would not be subject to this criticism. It might be that such a system based upon a prior history of segregation might be subject to criticism that this has not necessarily expunged segregation from the school system but that's not involved in this case at all. But certainly, insofar as completely free transfers were permitted, that was -- that's not this case.These are racial transfers. There is some effort to justify this plan as merely temporary and transitional. We submit, first of all, the record does not support that at all. And secondly, even if it were temporary and transitional, it would be more valid. There is no termination date for this type of plan, there is no standard by which it should come to an end. There is no statement that it ends at the end of 12 years and in fact in the 12-year plan, there are a variety of provisions which obviously on their very face are not meant to come to an end -- termination of 12 years. These various factors are first of all, the coalescence of the zones, that's obviously not coming to an end at the end of 12 years. This provision as to bus transportation, that's obviously going to continue and provision as to registration in the spring time. Now, why this racial transfer thing is supposed to come to an end at the end of 12 years does nowhere appear in the record. But transitional or permanent, we submit that its equally bad, that even if -- even if transitional, it would have to be supported by evidence concerning which the burden would be on the respondent and they presented evidence in an effort to support the 12-year aspect to the plan in both cases. In one case of the Court of Appeals and another case in the District Court held the evidence was not sufficient if they had made an effort to present evidence. If they had evidence here, I assume they would have presented it.
Byron R. White: What the -- excuse me, Mr. Greenberger. What play would you give to the wishes of the children and their parents, the 354 Negroes who transferred out of schools in which they were in the minority and the 300 or so whites who transferred, would the -- would their desires or wishes be irrelevant to the transfer question?
Jack Greenberg: Well, to the extent that they were asking the school board to enforce a racial decision of their own.
Byron R. White: If they come in and they come in and I assume that all of these were because they, let's say the Negro child didn't want to be in the white school and --
Jack Greenberg: What I'm saying --
Byron R. White: -- a white child didn't want to be in the Negro school, what play would you give this at all?
Jack Greenberg: Well, the --
Byron R. White: Say, these are stricken down, these standards are stricken down and the general transfer --
Jack Greenberg: Well, the --
Byron R. White: These same people make the same request and --
Jack Greenberg: It was.
Byron R. White: -- give the same reason?
Jack Greenberg: Well, first of all, as a preliminary matter, there were no actual transfer there, but he actually stated that there were. There was just a lot of paperwork. But I would assume, if they came in, the Superintendent or some administrative official say, “Why do you want to transfer?” And they would say, “Well, for this racial reason.” You have -- they weren't terribly sorry, we're not permitted to enforce racial choices here in the City of Knoxville. Someone came in, he wants to transfer because there's too long a trip or because of some other reason he might acquiesce on that under nonracial standard. But he just had to say segregation is no longer permitted here and -- in any particular form.
Potter Stewart: Is your point then that a government, state or city government, not only is permitted from carrying out a choice of a private individual based on race but also is affirmatively compelled to deny that choice?
Jack Greenberg: Well, to the extent that it means the use of the Government system and exempts that the Government is invoked. Well, I wouldn't say the Government is affirmed to -- be required to deny it in a transaction which the Government is not involve. But, in a school system of course, I don't see how you could escape from the --
Potter Stewart: As I said, assuming a private home, not a -- let's get away from any public business, assume a private home, a private lot, an empty lot in a neighborhood which is a owned by John Smith, a white man who's a very prejudiced man on racial grounds, and he doesn't want colored children playing baseball there then the -- and he says that all white kids can come and play there but I don't want any colored children playing softball in my vacant lot. Here, in this neighborhood and a couple come and he calls the police and said, “Please arrest these people for trespass, they -- the police are affirmatively required not to arrest them for trespass, is that your --
Jack Greenberg: Well, I would say -- I would have to note that. I assume that there'd be certain considerations of privacy involved there which I think would have countervailing constitutional weight and might be taken into account in arriving --
Potter Stewart: Certainly, we're talking about that very private thing, when we're talking about where parents desire their children to be educated, aren't we?
Jack Greenberg: Well --
Potter Stewart: I think personal private child have a choice.
Jack Greenberg: Well, under the decisions of this Court, of course they can send their children to private schools and they can't be compelled to attend the public schools but to the extent they do attend the public schools (Voice Overlap) --
Potter Stewart: Well, if they can't do, but we're talking about that public school system.
Jack Greenberg: Well, to the extent that they are in the public school system, I don't believe under the decisions of this Court that they can require that school system to enforce their personal prejudice (Voice Overlap) --
Potter Stewart: Well, you're -- but you're making a -- you're going further as I understand it, you tell me if I'm mistaken, that you say that the state must affirmatively deny that private choice based on race.
Jack Greenberg: Well, they come in and they say, “Look, I'd like to transfer.” And the Superintendent says, “Why?” And they say, “Because I don't like these Negro children.”
Potter Stewart: Because I don't want my (Voice Overlap) -- my child going to a school with white children.
Jack Greenberg: You just have to say, “Well, I'm terribly sorry. We're not permitted to do that.”
Potter Stewart: And furthermore, all the -- I will apply to you my compulsory attendance rule.
Jack Greenberg: Oh, yes, yes. I'm terribly sorry, you have to go to a public school and we can enforce racial standards.
William J. Brennan, Jr.: I don't -- you mean that's this -- this can't be weighed? Ordinarily constitutional, you just waive constitutional rights, aren't you?
Jack Greenberg: Who would waive? You mean --
William J. Brennan, Jr.: If a colored parent says, “Our child isn't doing as well here and the reason he is not doing well here is his unhappy with these white children in the school. So we want to transfer.” And you're saying the principal would have to say to him, “This is not -- this case -- the principal would have to say, “No.” If that's your ground for wanting to make your child more comfortable, namely that he can't get along with the white children here, I can't let you do it. You've got to stay here. That's what he was telling, isn't it?
Jack Greenberg: Well, I would say -- I would say that of course you always could reach a case where the plight of an individual child was such that (Voice Overlap) --
William J. Brennan, Jr.: No, let's take the -- let's take the case (Voice Overlap) --
Jack Greenberg: I would say that the Superintendent would have to say to him that we can't recognize --
Speaker: Why would he have to say it?
Jack Greenberg: Because he would be -- he would be enforcing this private prejudice in addition to which in the context of this plan it would be further segregating the system. That is, in fact, I would operate and it was adopted in contemplation of the fact that it would operate that way.
William J. Brennan, Jr.: Why do you say that's prejudice, Mr. Greenberg? Here's a colored parent whose child isn't getting along well in this school with white children and the parents' judgment is that the child will do better if he transfers to another school and he tells the principal that. Why -- what prejudice is it being for?
Jack Greenberg: Well, it would be the obligation of the school system to attempt some other means to remedy that situation which I would --
Tom C. Clark: Well, wouldn't it be their obligation to recognize the constitutional right of this person to have this child choose a school if it asks to go to another school. The parent asks that he go to another school and if it was permissible, other conditions being permissible, then it's clear to me that school board would transfer him.
Jack Greenberg: Yes, but this particular plan and that we now have before us does not --
Tom C. Clark: I'm not saying that (Voice Overlap) --
Jack Greenberg: But does not permit a white -- a Negro child to attend a white school because he was talking about --
Tom C. Clark: Well, Justice Brennan --
Jack Greenberg: Yes.
Tom C. Clark: -- didn't used that --
Jack Greenberg: Yes.
Tom C. Clark: -- but this language.
William J. Brennan, Jr.: Not this case.
Jack Greenberg: Yes.
Tom C. Clark: He was wrong with the evidence.
Hugo L. Black: It seems to be like the best language used there, you don't want to excuse all of it but the courts really don't have to argue that in this case.
Tom C. Clark: Yes.
William J. Brennan, Jr.: I think it would be wiser.
Hugo L. Black: What is that?
Jack Greenberg: I'd like to reserve the balance of my --
Arthur J. Goldberg: Mr. Greenberg, (Inaudible)
Jack Greenberg: I assume my argument would be the same, yes.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Oh, yes.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, I would assume under the Fourteenth Amendment, Equal Protection Clause.
Earl Warren: We'll recess now.