William H. Rehnquist: We'll hear argument next in Number 96-1395, Janice LaChance v. Lester Erickson. General Waxman.
Seth P. Waxman: Mr. Chief Justice, and may it please the Court: Each of the six Federal employees in this case engaged in sanctionable employment-related misconduct and then knowingly and intentionally falsely denied the misconduct when questioned by agency investigators. The court below held, however, that as a matter of constitutional due process the Government, as employer, may not charge these employees with both misconduct and lying about the misconduct. Indeed, the court went beyond that to hold that an employee's deliberate falsification may not even be considered in determining the penalty for the separate underlying misconduct. There is nothing whatsoever in the Due Process Clause or anywhere else in the Constitution, for that matter, that prevents a Government agency from sanctioning an employee who deliberately lies in response to questions about employment misconduct, whether or not the employee is also sanctioned for the misconduct itself. When the Government acts as an employer, it has the right to demand that its employees respond honestly to work-related questions and to sanction them if they do not, just as all other employers do. Indeed, the Government has more reason to demand honesty from its employees, as they employ... as they enjoy a public trust. As this Court held in Lefkowitz v. Cunningham, the Government has a compelling interest in honest civil service. The holding of the Federal Circuit in this case imposes profound anomalies and perverse incentives. Wrongdoers who tell the truth are required under this holding to be punished just as severely as wrongdoers who then knowingly and intentionally lie about their misconduct when questioned by an investigator or a tribunal. An employee who is questioned about wrongdoing can be punished for lying about it if he didn't do any wrong, but if he did do wrong and lies about it, he can't be separately punished for lying about it. Under the Federal Circuit rule, a rational employee questioned about wrongdoing will always lie, since it's cost-free and perhaps he will fool or dissuade the agency. He would be irrational to 'fess up and, indeed, I think it's fair to say that the consequences, that the rationale of the Federal Circuit's decision in this case goes beyond just what the individual agency can do and presumably would also prevent the Government in its sovereign capacity from making the false statements 1001 or, if their statements were under oath, for perjury. So we submit that the decision of the Federal Circuit in this case, which doesn't follow any decisions by this Court or any decisions by any other Federal court, is simply wrong as a matter of constitutional law.
Sandra Day O'Connor: General Waxman, just for purposes of discussion and not to indicate my view on what the Court's likely to do in the preceding case, but let's assume we recognize an exculpatory no doctrine, does that have any spillover effect in this situation?
Seth P. Waxman: Boy, the only spillover effect it could have, Justice O'Connor, would be if you found an exculpatory no doctrine required as a matter of constitutional law, because the argument in favor of the exculpatory no doctrine in every court that has adopted some form of it has done so as a matter of statutory construction, trying to define what Congress could have intended. There's no statute at issue in this case that that could be read into.
Sandra Day O'Connor: I guess as a practical matter the consequences of lying about the situation, if you're correct in this case, are often more severe than the underlying malfeasance.
Seth P. Waxman: It may--
Sandra Day O'Connor: I would assume that could often be the case.
Seth P. Waxman: --That could often be the case, and--
William H. Rehnquist: I suppose the moral of that is don't lie.
Seth P. Waxman: --That's the moral that we hope people will derive from the long line of cases in which this Court has held that even where there are important constitutional guarantees at issue, for example, in... under the self-incrimination clause, there is never a license to lie. Here, of course, the self-incrimination clause is not even in play.
Ruth Bader Ginsburg: Is there any concern about the conduct on the part of the agent, because most of these interviews are on a one-to-one basis, so is that perhaps what's reflected in this, that if you had a written record or... and the person, the employee when confronted lies, that's one thing, but if it's just an oral translation, how can you be sure that the one who's doing the interview isn't dissembling?
Seth P. Waxman: Well, a couple of answers. First of all, in a number of the cases that are collected in this... before this Court, the false statements were written. That is, the employee was given a list of questions, or a series of questions and provided written answers. In other instances, the employees either repeated or made their lies after they were put under oath, so you can't characterize the Federal Circuit's decision in this case as somehow limited to an informal oral question by an investigator. But even if you could, that might go to the question of whether the agency could establish by a preponderance of the evidence that the individual employee had knowingly and with intent to deceive given a false statement. That is, it may make it more difficult for the agency to establish that the misconduct had occurred, but as a constitutional matter, I wouldn't think that any a priori rule would be appropriate.
William H. Rehnquist: Was the... did the Federal Circuit in this case rest its holding on any statutory ground, or was it a purely constitutional holding?
Seth P. Waxman: It is a purely constitutional holding. The only statute that's really... it's not even at issue in this case. I don't even think that the Federal Circuit cited the statute, although I may be mistaken... is 5 U.S.C. section 7513, which provides that an agency may take action against an employee for misconduct "only for such cause as will promote the efficiency of the service. " And one of the things that the agency has to establish by a preponderance of the evidence is not only, of course, that the misconduct occurred, but that there is a nexus between the sanction that the agency has imposed and "the promotion of the efficiency of this... of the service. " That's required both in the statute and by a decision of law.
Ruth Bader Ginsburg: As I understand this panel of the Federal Circuit, they were following a precedent already set, and all these MSPB cases nowadays do go to that one circuit. Was there any procedure that might have been used to get the court to sit en banc and perhaps reconsider the precedent that was relied on in this case?
Seth P. Waxman: I... sure. We can ask that... the Federal Circuit to reconsider any panel decision en banc. The earlier precedent that you're referring to, a case called Grubka--
Ruth Bader Ginsburg: Yes.
Seth P. Waxman: --I must say that although several panels of the MSPB itself in several instances in these cases felt that the result that was ultimately reached by the Federal Circuit was dictated by Grubka, but there are other... there were other MSPB decisions that basically distinguish Grubka. I'm not certain, but I believe that we did ask the Federal Circuit at least in this case to reconsider this panel decision en banc. I don't know whether we did in Grubka or not. Frankly, I think it's reading a lot into Grubka to conclude that Grubka dictates the result that was reached by the board and the Federal Circuit in this case. That was a highly unusual case which is and was distinguished by the MSPB subsequently on what I think are reasonable grounds.
Ruth Bader Ginsburg: There was one curiosity in the Federal Circuit's opinion. That is, they seemed to draw a line between... they said if it's at the investigative stage then the employee could be punished. Was the--
Seth P. Waxman: They did say that, but it's a little bit curious because all six of the employees in this case were alleged and proven to have made... to have lied during the investigative stage. Now, some of them also lied during the "administrative stage", but one of the curious things about the Federal Circuit's decision is that in dicta it does say, well, of course due process wouldn't in any way protect lying at the investigative stage, but that's exactly what happened in each one of these cases. If there are no further questions, I'd like to reserve 10 minutes for rebuttal, if I may.
William H. Rehnquist: --Very well, General Waxman. Mr. Marth, we'll hear from you.
Paul E. Marth: Thank you, Mr. Chief Justice, and may it please the Court: If the Court accepts the Government position in this case that the Federal Circuit created a broad constitutional right to lie, then the respondents lose, because there is no such right, this Court has adamantly over the years asserted that there is no such right, and the respondents are not advocating that right in this case. If, on the other hand, this Court finds that the Federal Circuit narrowly tailored a right to protect the employee's meaningful right to respond to the charges, then the respondents should prevail.
Antonin Scalia: Did you tell us that the question presented was not presented in your opposition to the petition, because the question presented surely says what you say is not at issue here, whether the Due Process Clause precludes a Federal... the Due Process Clause precludes a Federal agency from sanctioning an employee for making false statements to the agency regarding allegations that the employee had engaged in employment-related conduct. I mean, that's what I thought we were here to talk about, and you're saying it is not.
Paul E. Marth: No, Your Honor, I'm not saying that. I'm saying that--
Antonin Scalia: Oh. I thought that's what you said.
Paul E. Marth: --that the Government in its brief and in its argument has characterized this as a broad constitutional right to lie, whereas it's the respondents' position that the Federal Circuit said, in a very narrowly tailored situation, to protect an employee's meaningful right to respond, an employee can deny misconduct and put the Government to its proof.
William H. Rehnquist: Okay. I see. You're-- --the Constitution required that.
Paul E. Marth: Your Honor, I disagree with General Waxman with regard to that issue. The court of appeals relied on and quoted 5 U.S. Code 7513(b), which is the provision which gives... and I believe that's on page 11a of the appendix... which gives the employees certain rights when charges are brought against them, and that includes the right to counsel, the right to a detailed statement of the charges, a right to have a period of time of a minimum of 7 days to respond to those--
William H. Rehnquist: And was that denied to these respondents?
Paul E. Marth: --That was not denied, but what the court of appeals was saying, Your Honor, was that the meaningful right to respond and the meaningful right to have those rights was denied because early on before those rights were ever given, they were... in effect could be... if an employee was forced to respond affirmatively to the Government charges of misconduct, that that subsequent meaningful right was denied.
William H. Rehnquist: Well, if it was simply an interpretation of the statute, why did the court of appeals refer to the Due Process Clause?
Paul E. Marth: Well, the Due Process Clause comes in because the court of appeals found that there was a risk of erroneous deprivation in this case of those subsequent rights if an employee was forced to respond without a... an opportunity to deny the misconduct at the early stage.
Antonin Scalia: Let me ask my question again, then. I thought I had an answer, but then... then you go back and said the same thing again. Do you agree that the question presented here is whether the Due Process Clause requires the outcome?
Paul E. Marth: Certainly, but the Due Process Clause, Your Honor, is based on property rights, and the property rights come from the statute.
Antonin Scalia: Well... okay. And what in your opinion, Mr. Marth, is the case from this Court that most closely supports the result, the constitutional result reached by the court of appeals here?
Paul E. Marth: Well, Your Honor, this Court has never, to my knowledge, dealt with this issue in a Federal employment context, where they have looked at the issues in the context of Federal employment. I'm not aware of any case where this precise issue has certainly come before the Court in the past.
William H. Rehnquist: Well, even if the precise issue hasn't, what is the constitutional decision from this Court that most closely supports your position?
Paul E. Marth: Well, in Garrity v. State of New Jersey this Court said that officers who are given the choice of either answering questions or losing their jobs had their Fourteenth Amendment rights violated, and the statements they gave were not voluntary and could not be used against them. That's probably the closest case, although certainly that is--
William H. Rehnquist: There's no question of using the statements here against these people in some other proceeding, is there?
Paul E. Marth: --You mean, whether or not these statements could be used in another proceeding?
William H. Rehnquist: Yes.
Paul E. Marth: Your Honor, I would... or, Chief Justice, I would say that there is no prohibition against using those statements in another context, but--
William H. Rehnquist: The Government isn't trying to use them... the Government isn't trying to obtain a criminal conviction by using these statements in some sort of a criminal proceeding, is it? The statements were just used in the proceeding in which they were given.
Paul E. Marth: --That's correct, Your Honor, but the employees certainly did not know that, and there are several employees in this case, Barrett and Roberts, for example, who could have been charged with taking Government property, misappropriation of Government property, Ms. Kye in this case, who could have been charged with some kind of credit card fraud or abuse, and these employees, when they're brought into the investigation stage, are not told by the Government whether or not criminal consequences are contemplated.
William H. Rehnquist: But no criminal consequences resulted in these cases.
Paul E. Marth: That's correct, Your Honor.
Ruth Bader Ginsburg: Now-- --Mr. Marth, you're drawing a large distinction between the public and private sector, and as I was reading your arguments I was thinking, in the case that we just heard, it's something that can only be between a Government and its citizens, but here we have an employment setting. Employees lie to private employers like they do to public employers, so it seems to me you're extracting from due process a right for a public employee that surely does not exist in a private employer. If that employer is lied to he can say, I don't want dissembling employees on my staff, goodbye.
Paul E. Marth: Well, Justice Ginsburg, you've pointed out a real distinction between the Federal and the private sector, and that is that in the Federal sector an employee has absolutely no right to refuse to answer. In the private sector there's no compulsion upon an employee to have to answer the question, but the Federal Circuit and the Merit Systems Protection Board have held that in any type of investigation an employee does not have a right to refuse to cooperate, so--
David H. Souter: Oh, but that simply means that if the employee refuses there will be consequences for refusal. In each instance, they're... it seems to me, they're in the same position, aren't they--
Paul E. Marth: --That's correct, Your Honor--
David H. Souter: --public and private?
Paul E. Marth: --Your Honor, and even this case, Ms. Kye, one of the charges against her was that supposedly she failed to cooperate in the investigation, so you're correct that an employee is put to a dilemma.
David H. Souter: And that's a separate charge from--
Paul E. Marth: That's a separate charge.
David H. Souter: --the charge that she in fact lied.
Paul E. Marth: That's separate from that charge, yes, Your Honor.
Sandra Day O'Connor: That's right, yes. Now, the Federal Circuit seemed to try to draw some line between the types of statements that it's doctrine would apply to.
Paul E. Marth: That's correct, Justice O'Connor. They made it very--
Sandra Day O'Connor: It's a line I don't understand, but is it one you espouse?
Paul E. Marth: --It is one we espouse, and the Merit Systems Protection Board has had no difficulty applying that line, and we contend that that line is no more difficult--
Sandra Day O'Connor: What is the line?
Paul E. Marth: --The line is that... the difference between denying the charges, a simple denial of the charges versus telling false tales or creating a story to cover yourself.
Sandra Day O'Connor: Well, in the case of the employee, Ms. Kye, she asserted that she had lost or torn up her Government credit cards, and yet that is not treated as a false statement. How do you draw the line there?
Paul E. Marth: Your Honor, basically the elements of what the Government had to prove in her case was that she had misused her credit card. The denials in effect were, no I did not misuse my credit card, so that's where the court of appeals came down. They said that when you look at the material facts that are elements of the charge, in this case, did you misuse your Government credit card, she denied it.
Sandra Day O'Connor: Yes, but she said... she went beyond that. She said, I lost it. I tore it up.
Paul E. Marth: And she also attempted, Your Honor, to correct that later on, and when she attempted to correct it, and that's one of the risks here, that when that employee attempted to correct it she was charged with falsifying evidence and her entire credibility--
Antonin Scalia: Which, indeed, she had been doing. That's a risk that she-- [Laughter] A risk that materialized because of her own conduct.
Paul E. Marth: --Yes, Your Honor.
William H. Rehnquist: So what's wrong with that?
Paul E. Marth: Well, the danger here that if an employee... for example, in a couple of these cases they were asking questions, in Ms. Walsh's case about some conduct that occurred 3 years before, and in the Barrett and Roberts case they were asking them how were they spending a 2-hour period 14 months before. So if an employee who answers, and blurts out an answer... when the Government asks, for example, in Barrett and Roberts, were you working on Government business on June 8, 14 months ago, between the hours of 1:30 and 3:30, they say, yes, we were. Well, you know, the risk is that then when they check their records, or have other opportunities to look back, they may find that indeed that that was not what they were doing 14 months before.
Antonin Scalia: Well, doesn't there have to be intentional misrepresentation? Doesn't the Government have to show it's intentional?
Paul E. Marth: Well, yes, Your Honor.
Antonin Scalia: Well, doesn't that solve that problem?
Paul E. Marth: Well, the problem is the chilling effect on an employee of denying--
William H. Rehnquist: Chilling effect on lying.
Paul E. Marth: --Chilling effect on denying misconduct. As both Justice Kennedy and Justice O'Connor have pointed out in the former argument, what you have here is, for examples, if somebody comes up, an investigator says, were you 5 minutes late to work, and you say, no, I wasn't 5 minutes late to work, well, suddenly what was a 5-minutes-late-to-work charge, which may involve a slap on the wrist, maybe even a written reprimand, now becomes a removable offense.
John Paul Stevens: Yes, but that's because it's a more serious thing to do. It's just... a cover-up is almost always more serious than the underlying offense. Look at the Alger Hiss case. They asked him in 1951 or '50, whenever the trial was, about things that happened in 1937. The statute of limitations on the substantive offense had run, so he was just found guilty of perjury, so lying can produce an offense where there was none before. That's what Congress has said.
Paul E. Marth: Your Honor, but here Congress has said that employees, when they're going to be disciplined, have certain rights, and the issue is, are those rights to a meaningful opportunity to defend affected when... before those rights are ever given, and here you have... I think it's important to understand the context. For example, in Mr. Erickson's case, the initial decision indicated that he was put into a room and questioned and told to fill out certain answers to questions. He asked for counsel. He was denied it. He asked to leave the interview room. He put down that he felt that he was under duress and loss of his job if he responded, so what meaningful opportunities does he have subsequently to respond when he has been under all this pressure and coercion early on to respond to the Government's investigation?
Ruth Bader Ginsburg: But even this case, how does it fit with what the Federal Circuit said its narrow holding was, that as it said, that false statements made during agency investigations may properly be subject to falsification or similar charges? Why wasn't what went on part of an investigation? Why doesn't... shouldn't we read what the Federal Circuit says the law is, apply it to that fact, and doesn't... that person doesn't come within this decision.
Paul E. Marth: Your Honor, that's the one point I agree with General Waxman on. I don't know how the court of appeals could say that in light of these facts, unless the court of appeals was saying, when you begin to focus an investigation on a particular respondent similar to a criminal context, certain rights attach.
Ruth Bader Ginsburg: Well, but this seems to say just the opposite. It says, of course, when they... during the investigation they may be subject to--
Paul E. Marth: Well, I mean, there's no question that these questions were given during the investigation, but what is evident is that the investigation had focused on the individual respondents in this case. For example, in Ms. Walsh's case, the investigator came and said, we have talked to 10 people, and we have statements showing that basically you've lied to us, or that you are guilty of this misconduct, and you better get your answers right, because if you don't get your answers right, we've got other penalties that we can institute. So you're right, Your Honor, that the court of appeals used that phrase about an investigation, and the only way that I can reconcile that phrase is in terms of the fact that the investigation had now focused to the point on these respondents that they were in effect the persons that were going to be put to the charges on.
Antonin Scalia: --Mr. Marth, can I... let me express what... the trouble I have with your presentation. You're relying on the Due Process Clause which prevents the deprivation of life, liberty, or property without due process, and your claim here is that the property of this job, this Federal job is unfairly taken away unless the individual is allowed to make misstatements during the administrative proceeding that would result in taking it away.
Paul E. Marth: Not exactly, Your Honor. In terms of the administrative proceeding I'm not taking the position that anyone at a Merit Systems Protection Board hearing has a right to lie. In fact, we're saying specifically to the contrary.
Antonin Scalia: Just in the investigation.
Paul E. Marth: Just in the investigation prior to the meaningful rights that Congress has given in 5 U.S. Code section 7513. In other words, when these persons were all questioned they had not been told that they had a right to a lawyer, they had not been told that they had a right to see the charges against them, they were not given any adequate time to respond to the charges. They were basically put in a room and said, respond now.
Antonin Scalia: Once the proceeding starts, however, you agree that there's no such--
Paul E. Marth: I agree, Your Honor.
Stephen G. Breyer: --No such right. But were they told that what you're about to say is important, and if you lie you are subject to criminal liability, or the equivalent?
Paul E. Marth: I don't think the record is clear on that, Your Honor, Justice Breyer. As far as I can tell, the employees were not told anything about that.
Stephen G. Breyer: I mean, what I... the difference between this case and Alger Hiss illustrates the point that when a person commits perjury he is put under oath. It is made clear to that person how important what he's about to say is, and what will happen to him if he lies. People when they're not under oath say all kinds of things. I do. You may. I mean, I try not to lie. [Laughter] I wouldn't like to call my wife in to say, in minor matters I... you know, you say... well, my goodness. So there is a problem, but I don't... I see a problem, and to that extent I understand your point. But what I don't see is how to solve that problem within the context of the law that we're arguing about, and if you can find a way to do that, I would be interested.
Paul E. Marth: Well, Your Honor, one thing, of course, that would solve the problem would be that there would be no investigation questions to a given employee who's under charges until they're given--
Stephen G. Breyer: Yes, yes--
Paul E. Marth: --Until they're given their rights.
Stephen G. Breyer: --I mean a legal route within the framework of the law we are discussing.
Paul E. Marth: Well, the legal framework, Your Honor, as I understand the court of appeals decision and what we're advocating here is that for the meaningful rights to apply, an employee has to be able to deny the misconduct, similar to a not guilty plea, and put the Government to its proof.
Sandra Day O'Connor: Well, but we're not dealing here, are we, with criminal charges as such. They may have done things that could result in criminal charges, but that's not what happened. We're talking about whether there should be some employee sanction imposed for what they did. Isn't that right?
Paul E. Marth: Well, not only an employee sanction, but a--
Sandra Day O'Connor: Isn't that what we're talking about?
Paul E. Marth: --We are talking about a double sanction, yes, ma'am.
Sandra Day O'Connor: And this Court has never imposed some kind of Miranda rights scheme in the context of looking into employee malfeasance or misfeasance, have we?
Paul E. Marth: No. No, Your Honor, you have not.
Sandra Day O'Connor: But you would want us to impose something like that.
Paul E. Marth: No, Your Honor. What we're ask... we're not asking necessarily that employees be told anything, I think as Justice Breyer indicated, perhaps maybe give employees some kind of warning before they could be questioned.
Sandra Day O'Connor: A Miranda-type scheme for--
Paul E. Marth: Right.
Sandra Day O'Connor: --employees. Well, I think you might have a hard time persuading us that we ought to extend that--
Paul E. Marth: No, I'm not advocating that. I understood Justice Breyer might be-- [Laughter]
Antonin Scalia: --But that's not this case. Mr. Marth, maybe you agreed too quickly that Justice Breyer had a problem. I mean, Justice Breyer said he tries not to lie. Were your clients trying not to lie?
Paul E. Marth: Well--
Antonin Scalia: I thought if they were trying not to lie, nothing could happen to them.
Paul E. Marth: --Well, the risk is that something could happen to them, Your Honor, and... Justice Scalia.
Antonin Scalia: The risk is that something could happen to them if it were proven that they were not trying not to lie.
Paul E. Marth: Well, for example, in Ms. Walsh's case--
Antonin Scalia: I mean, life is tough. We all have to, you know, live in some risk, but--
Paul E. Marth: --In Mrs. Walsh--
Antonin Scalia: --that can't be eliminated.
Paul E. Marth: --I'm sorry. Excuse me, Your Honor. In Mrs. Walsh's case the administrative judge that heard the case found that she did not lie, and when it got to the MSPB they found that she did lie, so there's the risk of credibility determinations here becoming... raising what is a simple minor offense up to a removable offense.
Ruth Bader Ginsburg: But the MSPB ruled in favor of these employees, as I understand it, right?
Paul E. Marth: That's correct.
Ruth Bader Ginsburg: And was affirmed. So wouldn't that same MSPB, as policer of this, be able to make distinctions between the employee who came across as terribly nervous and just tripped up a little, and say, that one, firing is too much for that, and then take the one who's deliberately trying to put the investigators off the track and say... make the penalty fit the crime. You do have a policer in here independent of the agency, and that is the MSPB.
Paul E. Marth: We do have a policer for some Federal employees, Your Honor, but not for all. Postal employees, for example, unless they're in management, or unless they're veterans--
Ruth Bader Ginsburg: We're dealing with a case that comes to us through the MSPB.
Paul E. Marth: --Right, but I think it's important, though, if we're looking at due process rights available to the entire Federal workforce, that the Court understand that not all employees have a right to get that independent decisionmaker. For many employees that final decisionmaker is the agency official that decides the case.
Anthony M. Kennedy: I take it under your scheme if there's suspicion that a credit card has been misused and the supervisor said, I'd like to talk to you about this credit card problem, the employee has a right to say, I decline to make any statements on that unless you want to bring charges.
Paul E. Marth: An employee can certainly do that, and the agency has the right to bring charges.
Anthony M. Kennedy: Can the agency separately charge for noncooperation--
Paul E. Marth: Yes.
Anthony M. Kennedy: --and failure to answer?
Paul E. Marth: Yes. They did in this case.
Anthony M. Kennedy: Well, but not under your scheme. Under your scheme, the employer... the employee has a right to in effect be silent.
Paul E. Marth: I don't believe I was ever advocating that, Your Honor.
Antonin Scalia: Oh, you would never give them a right to be silent, only to lie. [Laughter] I mean... but that will be the scheme you come up with. He can be prosecuted if he says, I'm sorry, I don't want to answer, and then he can be removed for failing to cooperate. If he had only lied, he would have been okay. Isn't that what we end up with? Isn't that the logical position you're arguing, or are you saying they should also have a right to be silent? You have a choice, to lie or be silent, either one.
Paul E. Marth: Well, either one, they're subject to potential penalties.
William H. Rehnquist: Is the penalty the same for simply saying, I don't care to discuss it, as it is for lying?
Paul E. Marth: I am not sure on the table of penalties, Your Honor, whether or not the refusal to cooperate in an investigation is a removable offense or not, so I cannot answer that question.
Anthony M. Kennedy: But you're not denying that it's permissible to remove the employee for failure to cooperate? You don't deny... you don't assert that there's a constitutional--
Paul E. Marth: No, but that--
Anthony M. Kennedy: --prohibition, do you?
Paul E. Marth: --No, but that puts the employee in the difficult situation where they're... where they're questioned, again, before they're given those meaningful rights that Congress has given them, that the issue is, at that point, what do they do? Do they lie, do they do a simple no, which is what the Court found happened in this case. Again, I mean, it's important to... for this Court to understand that King v. Erickson specifically said, there's no right to lie or to affirmatively mislead an agency engaged in investigation. They said, merely they had a simple right to deny the charge, and that they did not have a right to tell tall tales, to tamper with evidence, to falsify records... they came down with a--
William H. Rehnquist: Well, certainly it would mislead, if you're asked a question, did you misuse the credit card, and you say no, I didn't, when in fact you did. That surely misleads if anything does.
Paul E. Marth: --Well, I guess there is that issue of whether or not a simple denial is misleading, or whether to mislead or to deceive the Government requires some kind of more affirmative misconduct.
William H. Rehnquist: Well, it's hard for me to see how the... you know, you could say perhaps a spinner of tall tales would dig their own grave by making extravagant statements that were easily refutable, whereas perhaps a simple no would be less easy to identify as perjurious.
Paul E. Marth: Your Honors, we would contend that the due process concerns in this case with regard to risk of erroneous deprivation, basically that there are six potential risks to the employees in these... in this case. First, there is the chilling effect stemming from the seriousness of the charge, which we've already talked about. Secondly, an employee who is not represented during this process risks being coerced when questioned.
Ruth Bader Ginsburg: Mr. Marth, may I just ask you one question about the relationship of the prior decisionmakers? Did the MSPB get this rule from the Federal Circuit's prior decision, or did it originate with the MSPB?
Paul E. Marth: The Federal Circuit in Grubka came up with the proposition to begin with that a person always has the right to deny a charge and put the Government to its proof.
Ruth Bader Ginsburg: So it wasn't MSPB as... MSPB was not the originator.
Paul E. Marth: That's correct.
David H. Souter: I didn't understand that your theory was risk of erroneous deprivation. I thought what you were concerned with was a very sound and justified deprivation, and that's why the person would be allowed to lie a little bit of the way at the beginning so that he would be able to make a more effective defense later on without having given things away.
Paul E. Marth: Well, Your Honor--
David H. Souter: Isn't that your theory?
Paul E. Marth: --Yes, Your Honor, but the risk comes from requiring an employee at that early stage in effect to give up or minimize his later meaningful rights.
David H. Souter: Yes, but it's not a risk of erroneous deprivation.
Paul E. Marth: Well, if he is required to respond with more than an exculpatory no in effect at that time, then there is that risk that his later rights would be deprived of him, deprived of him from a meaningful point of view.
David H. Souter: Well, it's a risk that his later rights will not protect him from a justified deprivation. Isn't that it? You're saying if he can't lie, and he doesn't remain silent, and he had to tell the truth, he wouldn't have much of a case later on. That's your concern, isn't it?
Paul E. Marth: No. My concern is that before a person has a right to see an attorney, before they have a right to review their own records, before they have a right to look at the Government charges, it risks the deprivation of those rights if the agency can come in and question the employees and the employee does not have a right simply to deny the misconduct until he gets those rights. At that point, any right to deny the misconduct stops, but it's only after he gets the meaningful rights protected to that employee by the Government would his rights continue. Thank you.
William H. Rehnquist: Thank you, Mr. Marth. Mr. Waxman.
Seth P. Waxman: Mr. Chief Justice, and may it please the Court: Mr. Marth may be simply have misunderstood or not know what the facts are with respect to the other five employees before this case, but he surely knows what the facts are with respect to his client, Sergeant Erickson, who was not put in a room and told he had to answer a series of rapid-fire questions. The record in this case reflects that Mr.... that Sergeant Williamson at 7:20 in the morning signed a Kalkind statement acknowledging that he has... may be asked to provide answers to questions: I've been advised that I have a right to remain silent, but that I may be subject to disciplinary action for failure to answer material and relevant questions. I've been further advised that the answers I give to these questions, or any evidence gained by reason of my answers--
John Paul Stevens: But Mr. Waxman, that... none of that was necessary.
Seth P. Waxman: --It was absolutely not necessary. I just don't want this Court to be under the misimpression that this man was somehow treated unfairly, 3 hours later--
John Paul Stevens: But even if he was put in a room and asked a bunch of rapid-fire questions, it seems to me we've got the same answer under--
Seth P. Waxman: --That's... that's right. He could simply have said, I don't remember, or I'd like to take time to think about it, or he could have confessed, and that was the case with respect to all--
John Paul Stevens: --Which is I suppose what he should have done, right?
Seth P. Waxman: --We have as an... the Government as an employer has the right to ask that they do that, even if we had been "unreasonable" and put him on the spot and said, look, we're investigating this Mad Laugher incident, and were you... do you or do you not know anything about that, but none of the cases before this Court are anything approaching that. Ms. Walsh, who supposedly was asked on the spot to talk about events that happened 3 years before, was accompanied by an attorney, made a long, discursive statement in response to questions, and there was a transcript. She could easily have said, I don't remember. It was a long time ago. She gave a whole false story about a long relationship she had. You are right. It does not matter as a constitutional matter. I just wanted the record to be clear with respect to this case.
John Paul Stevens: In fact, I don't suppose she could even say I don't remember, if she really did.
Seth P. Waxman: That's... that's right, and the problem that Justice Breyer was suggesting that some people may have with the potential for abuse I think is dealt with very adequately by Congress and by the Office of Personnel Management in the relevant stat... provisions of the Civil Service Protection Act and the implementing regulations. In 5 U.S.C. section 2301, that is the statutory provision that enunciates the merit systems principles, it states, among other things, that as a matter of statutory law all employees and applicants for employee... employment should receive fair and equitable treatment in all instances of personnel management, and it goes on.
Stephen G. Breyer: Is this... this is a minor... but I mean, it... point, but it's crucial, I guess not necessarily to whether you win or lose, but I'm still worried about whether this is a constitutional or a statutory case, and the language on 12a, you see, they say, the question before us is whether doubling up a misconduct charge, et cetera, deprives the employee of the due process that the statute intends, and then they talk about Federal law throughout the rest of it, and they've got the Constitution in there quite a lot, but I... maybe it's the same answer. I don't know. But is this... what do you think about that language?
Seth P. Waxman: There is simply no doubt that the Federal Circuit was ruling as a matter of constitutional due process. It says so over and over and over again. When you get to the--
John Paul Stevens: Mr. Waxman, you would not be happy, I don't suppose, with a decision that says we find no constitutional basis for this decision, but we leave open the question whether it's commanded by the statute.
Seth P. Waxman: --I don't think there would be any basis whatsoever... that would be the most muscular interpretation of the statute imaginable. I don't think there would be any basis for it, but--
John Paul Stevens: You think it's more muscular than the interpretation of the Due Process Clause?
Seth P. Waxman: --Well, that's... you mean by the court below?
John Paul Stevens: Yes.
Seth P. Waxman: That's rather--
Antonin Scalia: We've muscled that around before, right? [Laughter]
Seth P. Waxman: --That's rather muscular. We'll take it, whatever this Court's judgment is. The question presented is a constitutional one. I think the reason that there's no statutory question in this case is that there simply is no statutory provision to which this claim could be attached.
Stephen G. Breyer: Well, he... they've attached 7513 and to the list in 7511 and they say, for the efficiency of the service, and then they list all these rights and they say, well, obviously, this means that you have a right to say no, and certainly during the hearing, and since you must have a right to exculpatory no during the hearing itself you have this reading. Yes, it's muscular. [Laughter]
Seth P. Waxman: It's... look, it's not how... it isn't how the Government has read the opinion, but it would be wonderful if the Court could so read the opinion and then hold that even as a matter of statutory construction it simply cannot be that as an a priori matter it doesn't promote the efficiency of the service to sanction employees who deliberately and intentionally lie to their employers. We haven't read it that way, but if the Court feels that it could, we'd embrace it. If there are no further questions, we'll submit. Thank you.
William H. Rehnquist: Thank you, Mr. Waxman. The case is submitted.
Speaker: The honorable Court is now adjourned until tomorrow at ten o'clock.


William H. Rehnquist: We'll hear argument first this morning in Number 88-840, Golden State Transit Corporation v. the City of Los Angeles. Mr. Fasman.
Zachary D. Fasman: Mr. Chief Justice, and may it please the Court: The City of Los Angeles forced Golden State out of business because we refused to settle a labor dispute with the Teamsters. This Court held that the city's decision to deny us a franchise was precluded by the language and legislative history of the National Labor Relations Act because Congress intended to allow management and labor full freedom to bargain and to use economic weapons during a labor dispute without government sanction. Where Congress decrees that specific private conduct shall be free from government sanction and then a sanction is imposed upon that conduct by a city, a classic case for the application of Section 1983 is presented. This is especially true here, because the improper destruction of a lawful business is a property injury that has been recognized in our courts for 200 years as deserving of full compensation. Full recoveries traditionally have been available against cities who partake of no Eleventh Amendment immunity from damages. The rule in our courts under Section 1983 is that cities are fully liable for the consequences of their illegal actions.
William H. Rehnquist: Mr. Fasman, are you contending that merely because there was a Supremacy Clause violation you're entitled to recover under Section 1983?
Zachary D. Fasman: No, we are not. The test under Section 1983 is whether we were denied rights, privileges and immunities secured by federal law. Our position is that the traditional Section <nineteen eighty-three> [= 1983] tests, repeatedly endorsed by this Court, should govern whether... the question of whether we were denied such rights, privileges and immunities.
William H. Rehnquist: And so what... what federal law was it that protected this right that you say was denied to you?
Zachary D. Fasman: The National Labor Relations Act.
William H. Rehnquist: The National Labor law.
Zachary D. Fasman: Yes. No, we don't... we don't contend that all Supremacy Clause claims arise under Section 1983, as I think we've made clear in our... in our papers. The traditional test endorsed by this Court under Section 1983 require a finding that we did... we were in fact denied, rights, privileges and immunities under federal law. This Court repeatedly has made clear that rights enforceable under the statute arise when the constitutional or a federal statute imposes mandatory obligations upon local government.
Sandra Day O'Connor: Well, Mr. Fasman, would you explain how a mere finding of preemption by the federal labor law satisfies the test?
Zachary D. Fasman: Well, I think that in this case the mere finding of preemption rested upon the proposition that Congress specifically decreed that private parties shall have the right to engage in certain conduct; that is, collective bargaining and the use of economic weapons during a labor dispute. I think that that is different than the normal type of finding of... of preemption that involves, for example, federal regulatory schemes and more amorphous findings. In this case, we have specific rights that were granted to us by Congress, and those rights were obviously... were obviously denied when we were put out of business for our... for our exercising them. It seems to me that... that what this Court's initial opinion said was that the... was that this case involves mandatory obligations that is... that are imposed upon the city by federal law. The court's first... first ruling in Golden State reaffirm that the language and legislative history of the National Labor Relations Act evidence clear Congressional intent to ban all municipal coercion at the bargaining table, and that's been accepted federal law since the 1976 ruling in the Machinists case. This is not a case like Pennhurst in which Congress has exhorted rather than commanded. Equally important, this mandatory ban on municipal coercion was intended for the especial benefit of unions and employers like Golden State. We do not stand before the Court as an incidental beneficiary of the law designed to protect the general public weal. The preface to the Taft-Hartley Act is specific. It states that the purpose of the law is to prescribe the legitimate rights of employers and employees. The National Labor Relations Act speaks... speaks in terms of the parties' rights and obligations. The right to strike is granted to organized labor. The lockout inheres in management, and Congress granted both sides full freedom of contract and the... the right to resist the other's economic strength during a labor dispute. These are not generic public rights of equal interest to all citizens. They are specific entitlements granted by Congress to the parties in order to allow them a meaningful opportunity to order their own affairs without government interference.
Byron R. White: In... in the Golden State case that we decided, was that a 1983 case?
Zachary D. Fasman: Yes, this was pleaded under 1983 at the time.
Byron R. White: And what was the relief granted?
Zachary D. Fasman: The Court--
Byron R. White: A judgment or an injunction?
Zachary D. Fasman: --A judgment. The Court did not reach the issue of relief in that case.
Byron R. White: Was there a prayer for an injunction?
Zachary D. Fasman: There is a prayer for declaratory relief, injunctive relief and damages, yes.
Byron R. White: We just... we just ended up with a judgment?
Zachary D. Fasman: Yes, that's right, and remanded for further proceedings not inconsistent. It came before the Court, as I remember--
Byron R. White: Was there any claim in that case that the preemption claim was not a proper subject for a 1983 case?
Zachary D. Fasman: --That did not come up the last time we argued the case.
Byron R. White: It was not... it was not raised?
Zachary D. Fasman: It was not raised, that's right.
Byron R. White: But I suppose if it had been raised, there would be the same sort of an... would have been a same sort of an argument then as there is here.
Zachary D. Fasman: Well, that's right. We're still on the pleadings in this case. That's exact... that's exactly right. The case, Justice White, the case came up on summary judgment that was granted to the city, and that summary judgment, this Court found, was wrong as a matter of law, and the remedial issue was not... was not reached in the case.
Anthony M. Kennedy: At any point in the proceedings has the city contested the award of the ancillary damages?
Zachary D. Fasman: Yes. The city... the city in the district court opposed the award of ancillary damages and indicated that they were not... that ancillary damages were not properly entered in this case either as a matter of law or as a matter of fact.
Anthony M. Kennedy: Well, I... I know it's not an issue before us here. I assume it's not an issue before us here, but I'm curious to know. What is the authority for the ancillary damages, because the answer to that might bear upon the issues we're discussing here today?
Zachary D. Fasman: Well, the... the authority, Justice Kennedy, is... is basically the equitable authority that inheres in the Court to assure that injunctive relief is not... is not a hollow remedy or a nullity. That was the basis upon which the... the lower court ruled and I believe the... the... I can't recall quite precisely right now what the name of those cases are.
Anthony M. Kennedy: And... and... and we have some authority to address--
Zachary D. Fasman: Yes, there is Supreme Court authority to that... to that effect. I have to say that the ancillary damages that... that the district court awarded in this case, as we pointed out in the papers, are likely to yield nothing to Golden State because the Court balanced our tangible assets against our intangible liabilities, and it's plainly an... an inadequate remedy. The question before the Court, it seems... it seems to me, and the question raised by the Ninth Circuit below, is whether there is any warrant for departing from the traditional Section 1983 tests in this case. We say no. The essential question in every Section 1983 case, preemption or otherwise, is the same: Have federally guaranteed rights, privileges or immunities been denied? If so, and if Congress has not foreclosed access to Section 1983 by devising an alternative statutory remedy, Section 1983 is available. None of the briefs before the Court claim that Section 1983 is inapplicable in every preemption case, and the court below did not so hold. The Supremacy Clause is involved in some way in every Section 1983 case, statutory or constitutional, because it alone obliges local governments to obey federal law. Even in constitutional cases, the Supremacy Clause is violated because the local government has failed to accord federal law the priority that it deserves. Thus, it cannot be that Section 1983 never applies in any preemption case or any case involving the Supremacy Clause because, by definition, every Section 1983 case in some way involves the Supremacy Clause. For this reason, all of the briefs before the Court--
Antonin Scalia: --That... that's not... that goes a little far, doesn't it? I mean, you... you... you can... you can act under color of state law even when a state law does not in fact contradict the federal law. You simply purport to be acting under state law, and in that case the Supremacy Clause would not be involved.
Zachary D. Fasman: --That... that--
Antonin Scalia: Isn't that right?
Zachary D. Fasman: --I do stand corrected. That's right.
Antonin Scalia: Yeah. I--
Zachary D. Fasman: The private conduct. That's exactly right. Undertaken... under color of state law; that is right.
Antonin Scalia: --Furthermore, the Fourteenth Amendment is directly applicable to the states.
Zachary D. Fasman: Well, it is--
Anthony M. Kennedy: It says no state shall deprive, and Congress has specific authority under that, under the... the fifth clause of the Fourteenth Amendment, to pass legislation to enforce it. So, I should think if the Constitution did not have a Supremacy Clause it wouldn't make any difference.
Zachary D. Fasman: --I think... I think this may be a very nice juridical... juridical point. I think that may be... that may be right if there were no Supremacy Clause, but there is a Supremacy Clause; and whatever the Fourteenth Amendment says, even if it says no state shall deny, nonetheless, the point that I'm making is that the Supremacy Clause says that the state shall obey that amendment. So, it is involved in some way in every... in every case, although that... it is an interesting case, as if there were no Supremacy Clause. My point is, though, that the dispute before the Court is not whether Section 1983 applies in some preemption cases. Everyone seems to agree that it does. The dispute is what test should be used to determine whether Section 1983 applies. We see absolutely no reason to depart from the traditional standards used by this Court and by most courts below in this... in this or any other Section 1983 case. Under those standards, whether Congress created rights, privileges or immunities depends upon the intent of the legislature.
John Paul Stevens: Mr. Fasman, maybe this really isn't a difference, but the rule you rely on that a preemption based on the Machinists analysis and so forth, you could really say that's a judge-made rule of law rather than the clear statutory directive as we have in most 1983 cases. Do you think that makes any difference?
Zachary D. Fasman: I think the question in all Section 1983 cases goes back to the intent of the legislature. I think Machinists is based upon a clear read... reading of the language, legislative history of the National Labor Relations Act and, in fact, has a statutory basis. It is true that it was iterated by the Court, but I think the foundation of Machinists is very clear both in term... both in terms of the language and the legislative history. So I don't think that makes a difference. I think the test is the same. The question is what did Congress intend, and that's our basic point here. The Court's already determined in its ruling what Congress intended. We went back down to the Ninth Circuit and the court below, and they said, well, we don't have to look at congressional intent. That's not the test.
William H. Rehnquist: Are you saying that our... our first opinion in Golden State three years ago decided this case?
Zachary D. Fasman: I think, in essence, it did. It did not in so many... in so many words, because, Mr. Chief Justice, what the Court said was that... and reiterated, actually, that management and labor have these freedoms; that Congress protected this conduct from government sanction. That should, in our view, have resolved this matter.
William H. Rehnquist: Well, what... what is your response to the argument of Respondents that the National Labor Relations Act essentially creates rights in... in employees and employers enforceable against one another?
Zachary D. Fasman: Well, the... the simple answer to that is that that is directly contrary to the interpretive approach that this Court has taken in Machinists and H. K. Porter in the whole second branch of the preemption... in the preemption doctrine. The court below... one of our fundamental points here is that the court below didn't have the authority to reinterpret the NLRA in a narrowly-cabined version as they did. This Court has interpreted Section 8(d) and has extended the express prohibition on NLRB coercion and bargaining to state and local governments on the basis of Congressional intent, which that should... this Court's rulings along those lines should have resolved that issue.
Antonin Scalia: To put it more briefly, your response to that argument is that we decided otherwise in Golden State One.
Zachary D. Fasman: Golden State One--
Antonin Scalia: Specifically what we decided--
Zachary D. Fasman: --That's right. That's exactly right.
Antonin Scalia: --That you had an enforceable right not only against the... not only against the employees but also against the... the state.
Zachary D. Fasman: And that's been accepted law at least since the '76 decision in the Machinists case, where the Court... where the Court first... first declared the second branch... second branch of the preemption doctrine.
Byron R. White: On... on remand and in Golden State One, was there an injunction entered?
Zachary D. Fasman: The Court was prepared to enter an injunction giving us a franchise for four years.
Byron R. White: But it didn't?
Zachary D. Fasman: Well, we stayed... this... this case comes... comes before the Court on certification. We stayed all the proceedings--
Byron R. White: Oh, I see.
Zachary D. Fasman: --in... in the district court so that we could resolve this issue of compensatory damages or our right to compensatory damages before proceeding to other remedial issues.
Byron R. White: Of course, if there were an injunction ever entered, it certainly would have been based on the fact that... that this preemption, this so-called preemption right really entitled somebody to an injunction.
Zachary D. Fasman: Well, not only... not only did the court... were the courts below willing to enter an injunction, but the city admitted that injunctive relief was appropriate here, thus admitting we have a cause of action--
Byron R. White: And I suppose that was based a lot on our decision in Golden State One? [Laughter]
Zachary D. Fasman: --I presume that it was directly based on that decision. But it seems to me that the question and the point that you raised, Justice White, is... is exactly... is exactly right. Where's the warrant for partial enforcement of these obligations that the Court imposed upon municipalities? The decision below, the Ninth Circuit said in so many words that it was free to ignore congressional intent, and it created an entirely new test that would be applied to this case that undercuts this Court's ruling in Golden State. The Ninth Circuit concluded that even though Congress intended to ban the city's conduct, Section 1983 relief was not available, and I quote, because, quote, "The National Labor Relations Act does not explicitly prohibit the city from acting in the area of labor relations. " This Court's never sanctioned any explicit prohibition test in any Section 1983 cases. Judge Alarcon noted in his concurrence below, this Court repeatedly has held that in deciding whether Congress created rights, privileges or immunities, the key to the inquiry is the intent of the legislature.
Antonin Scalia: I don't know what we held in Golden State One if we didn't hold the opposite of that statement.
Zachary D. Fasman: I don't think... I don't follow your... your point, Justice Scalia.
Antonin Scalia: I... I'm agreeing with you. I'm saying I don't know what we--
Zachary D. Fasman: I thought you were. [Laughter]
Antonin Scalia: --I don't know what we held in Golden State One if we didn't hold that... that... that you don't need an express indication of congressional intent to create a right against the municipality.
Zachary D. Fasman: The Ninth Circuit even went further by saying, based on its express language test, that the NLRA, and I quote again, "imposes obligations only upon an employer and a labor union. "
Byron R. White: It may be that you... that... that the NLRA created a right to be free from this kind of regulation, but it doesn't necessarily mean you have a right for damages... to damages.
Zachary D. Fasman: I think under the standard accepted test that the courts applied in Section 1983 cases, we fall clearly within it.
Byron R. White: I suppose you could say that Congress may have intended an injunction but didn't intend any right to damages, just because the city was doing what it shouldn't have done.
Zachary D. Fasman: Well, that... that may be, but I think the... I think our essential point is that that would be a very unusual result if we have rights, privileges or immunities, and I think under the Court's traditional standards we do, the proposition that we're entitled only to injunctive relief would be extraordinarily unusual because Congress created a broad damage remedy that allows citizens deprived of rights, privileges and... and immunities guaranteed under federal law to sue for damages in the federal courts, and that's precisely our claim in this case.
Byron R. White: Of course, there's no express preemption in... in NLRA.
Zachary D. Fasman: No.
Byron R. White: This is a... this is a court interpretation of what Congress intended.
Zachary D. Fasman: That's... that's... that's absolutely right.
Byron R. White: And you could say, I suppose, that this, all they really intended to do was to protect federal power, and injunction is enough.
Zachary D. Fasman: Well, Justice White--
Byron R. White: If you want to... if we've... if we've fashioned this preemption notion when it's... when it... even though a statute is silent, I suppose we still have an unresolved question of whether... whether damages are... are permissible.
Zachary D. Fasman: --Well, Justice White, it seems... it seems to me that the premise of your... of your argument is that there is no statutory basis for the Machinists doctrine, and that's just not right. I mean, there's ample statutory basis for Machinists. There's ample legislative history supporting it.
Byron R. White: You mean that's just for preemption?
Zachary D. Fasman: Yes, for preemption.
Byron R. White: All right, that's fine. But that isn't my point. My point is, although the statute is... although the city's action is preempted, are they liable for damages?
Zachary D. Fasman: Well--
Byron R. White: In addition to an injunction.
Zachary D. Fasman: --And the answer to that is it depends on whether what they have done contravenes rights, privileges or immunities granted to us. My point is and our point here--
Byron R. White: Well, not necessarily. You recognize a right by granting an injunction.
Zachary D. Fasman: --Well, but the point is that if we have a right, privilege or immunity that's enforceable otherwise under Section 1983, we're entitled to damages for the infringement of that right. My point is not that it's just preemption but that we were granted rights, privileges or immunities; that we were granted the right to bargain free from government sanction; that we were granted... labor is granted the right to strike, we were granted the right to outlast a strike, to use economic weapons against one another.
William H. Rehnquist: Well, if you're right, Mr. Fasman, then although you said earlier in your argument that violation of the Supremacy Clause is not enough to recover damages under Section 1983, can you think of any case that would not give you... where there was preemption that would not give you damages, any case where the Supremacy Clause was violated?
Zachary D. Fasman: I think there... there are many. I think there are many cases where... where you can't justifiably say that the basis of preemption is congressional or constitutional protection of specific private conduct.
William H. Rehnquist: What... what would be an example?
Zachary D. Fasman: Well, for example, a... a broad regulatory scheme, a scheme... and you'll pardon me if I don't... if... if I don't get the... the precise area correctly, but if Congress, for example, says we're preempting the area of nuclear... transportation of nuclear waste and says... says not... not in an effort to grant rights and not in an effort to say a specific party shall have the specific right to do X, Y or Z but just says this is an area of federal concern and the state takes an action in there, in that area, that is preempted, that doesn't necessarily sound in damages because there's no right--
Antonin Scalia: Who would sue? How would you ever get the preemption? If... if it's not a right on the part of anybody, who would pronounce the preemption?
Zachary D. Fasman: --Well, I presume that someone... someone who is--
Byron R. White: Someone like us.
Zachary D. Fasman: --Someone who is-- [Laughter] Someone who is--
John Paul Stevens: Let me test that. May I ask you a question about that?
Zachary D. Fasman: --Sure.
John Paul Stevens: Supposing they did preempt the delivery of nuclear waste, and a state passed a law saying you can't drive through on... on state highways. The... that law would not be enforceable, and the nuclear waste disposal company would have a federal right to enjoin enforcement of that statute. It would have federal right. They couldn't get damages against the state because of this Eleventh Amendment. But supposing a city for... forbid them from driving through the suburbs or something like that and that was preempted. Why wouldn't they have a federal... if there's a federal right to drive through the suburbs, why wouldn't they have a... a damage action against the municipality for interfering with their free movement in interstate commerce?
Zachary D. Fasman: Well, they might, and they might depending upon the nature of why Congress--
John Paul Stevens: It seems to me under your theory they always would, and why wouldn't they? If there's a federal right based on preemption not to have the state interfere, it seems to me, under your analysis, the plain language of 1983 would give them a... a damage remedy.
Zachary D. Fasman: --I think the real question in that case is whether the law was passed for the especial benefit of the people who would transport--
John Paul Stevens: For the special benefit of people who are in the business of hauling nuclear waste around, special benefit of... of them as... just have them regulated by federal authorities so that they wouldn't be overregulated but yet they'd be... there'd be protection.
Zachary D. Fasman: --Well, if it's... if that's a clear reading of the legislative history of the statute, for example, if... if there were history in the statute that says that the reason that Congress federalized the field was to protect the right to haul nuclear waste across city lines, sure. I think that then you meet the especial benefit test, and you have a mandatory obligation. You meet the normal Section 1983 test.
William H. Rehnquist: Well, what... what if the legislative history simply said that we're preempting this area because we don't want a lot of conflicting state and local regulations?
Zachary D. Fasman: That was the point that I was trying to make. It may not be that the preemption or the basis for preemption is designed to protect any specific private conduct--
William H. Rehnquist: Well--
Zachary D. Fasman: --and if it isn't--
William H. Rehnquist: --So what happens when... when the hypothetical truck driver in Justice Stevens' example drives through the suburbs in violation of the, you know, the ordinance of Orange County?
Zachary D. Fasman: --I think what you're entitled to is... is an injunction, but you don't fall under the terms of Section 1983.
William H. Rehnquist: Why not?
Zachary D. Fasman: Because the... the law was not passed for your especial benefit. You don't fall within--
John Paul Stevens: Well, there's nothing in 1983 about laws being passed for the special benefit of anybody.
Zachary D. Fasman: --Well, that's the test that... that's one of the tests that the Court traditionally has used to determine whether there is an enforceable right, privilege or immunity.
John Paul Stevens: But that's in private cause of action cases, not under--
Zachary D. Fasman: No, I think in this... in this as well. I think the Court has applied that especial benefit test under Section 1983 as well.
Antonin Scalia: --I thought it was the test we applied to determine whether you could get an injunction also. I didn't think that... that anybody in the world can sue to... to enforce federal... federal laws. Somebody who is not proximately injured, who is not a person who is thought to be within... within the scope of... of... of the... of the benefit conferred by that law, can anybody... can sue to get an injunction?
Zachary D. Fasman: Well, you're raising... it seems to me that you're raising a standing question as opposed to... as opposed to this issue. And it is true. I mean, the... the notion of cause of action and standing really do get close to one another, and it may... it might--
Antonin Scalia: I don't see why I would have a... a cause of action for an injunction and not have a cause of action for damages in... in... in any case.
Zachary D. Fasman: --In any case. I think it would be a--
Antonin Scalia: The situations you've posited don't seem realistically to... to be that to me. If the law is... is a law under whose wings you... you come, you're entitled to an injunction, but you also have a right and, therefore, entitled to damages.
Zachary D. Fasman: --I'm comfortable with that result, of course. [Laughter]
William H. Rehnquist: Well, but then you have to retreat something from your earlier statement that it's not every preemption case that is going to give you damages under Section 1983.
Zachary D. Fasman: Well, I think I've tried as best I can to... to show how preemption cases under these... under this especial benefit test that the Court has used, where the proper... the proper inquiry is to look and see if a party is an especial beneficiary of the particular law.
William H. Rehnquist: When you're talking about the special benefit test, is that the Cort v. Ash test for a private cause of action?
Zachary D. Fasman: It's the first prong of Cort v. Ash, and this Court has held that the first prong is useful in determining whether a right enforceable under Section 1983 arises here. It's not the full Cort test.
William H. Rehnquist: In the... in the City of Roanoke case?
Zachary D. Fasman: Yes. Right. I think the... the underlying point that we would like to... we'd like to leave with the Court is that the Ninth Circuit's test, this explicit prohibition test, leads us to completely illogical results. It's illogical to conclude, as did the Ninth Circuit, that Congress intended to protect employers and unions from the city's conduct yet simultaneously intended to deprive them of remedies normally available in the federal courts. It's similarly ill... illogical to conclude that the obligations Congress imposed upon the city are... are entitled to less than complete enforcement, merely because this Court relied on the legislative history before rendering its decision. Our injuries are no less real and no less contrary to the will of Congress because this case involves legislative history. With the Court's permission, I'd like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Thank you, Mr. Fasman. Mr. Haggerty.
John Haggerty: Honorable Chief Justice and may it please the Court: As the... in... in response to Justice Scalia's concern or question, there was, as counsel indicated, a declaratory relief action pled in this case, and under the declaratory relief, the Plaintiff could get injunctive relief. But the question is is the Plaintiff in this case entitled to damages under 1983.
Byron R. White: But he... but do you say he is entitled to an injunction under 1983?
John Haggerty: No, I'm not. I'm saying he's pled a separate cause of actions under the declaratory relief act, and under that act, the court granted an injunction. But just because he received an injunction under declaratory relief does not mean that the plaintiff's entitled to damages under 1983, because the court... when the court engages in a preemption analyses, it's a different analyses than the court engages in when it engages in a 1983 analyses.
Antonin Scalia: How... how could we give an injunction unless the individual has a right? And 1983 requires the deprivation of a right guaranteed by... by federal law; correct? Could we possibly give an injunction or even a declaratory order in any case unless the individual in question had a right?
John Haggerty: Well, in order to enforce the holding of this Court in Golden State One, yes, because I... the... the type of analyses the court goes into in determining whether or not there is preemption is a different kind of analyses that the court has engaged in in the 1983 action.
Antonin Scalia: Now, let's not talk about preemption. Let's just talk about right. Doesn't... doesn't 1983 refer to deprivation of rights secured by statutes or laws of the United States?
John Haggerty: That is correct.
Antonin Scalia: Rights. Now, is it conceivable that I can get an injunction with respect to a matter as to which I have no right? Or that I could get a declaratory judgment when I do not have a right?
John Haggerty: Well, the court in a... preemption analyses, as this Court did, did find that there was a right based on a preemption analyses. What I'm saying is just because a court may find there is a right based on a preemption analyses does not meet the test that this Court has laid out as to when a person has a right within the meaning of Section 1983. The kind of analyses a court engages in, for example, in Wright v. Roanoke, is a different kind of analyses than this Court has engaged in in labor preemption cases. In fact, this Court has stated that it is not clear from the NLRA what rights or what powers have been taken from the states and what powers have been given to the states. In fact, the Court even indicates that engaging in such a preemption analyses, it goes through what the Court refers to as a delphic process. In other words, the court may take obscure and ambiguous language and imply from that a right or... the local entity has been preempted, whereas in a 1983 cause of action, this Court has laid out very specific rules, as they did in Wright <v@l> [= v.] Roanoke Redevelopment Authority.
Byron R. White: How did the plaintiff in Golden State One get into the federal court? What was the jurisdictional basis?
John Haggerty: Well, there was a whole series of cause of action. There was violations of the Fourteenth--
Byron R. White: I'm not... I'm asking about jurisdiction.
John Haggerty: --Oh, they were claiming under 1331 that there was a--
Byron R. White: All right, and what's the basis for the cause of action? You need something... some authority for a cause of action, too, don't you?
John Haggerty: --Yes. They were... they were claiming a violation of the Fourteenth Amendment, due process, equal protection rights. They were claiming cause of action in 1983. They were seeking declaratory relief. They were seeking injunctive relief.
Byron R. White: Well, do you think you could have... do you think you could have gotten... they could have gotten into the federal court without pleading 1983?
John Haggerty: Well, yes, because... well, they also had pled violations of the Fourteenth Amendment.
Byron R. White: Why would that get them in... into federal court?
John Haggerty: The Federal Court of Appeals ruled that they had no cause of action under 14... the Fourteenth Amendment or under the anti... they also pled antitrust violations. There has been four court of appeals decisions in this case, and all the issues have been resolved, except the question of 1983. The city would submit that the appropriate legal test in this case to determine whether or not this specific law... namely, the National Labor Relations Act... granted the Plaintiff rights within the meaning of 1983 is whether or not Congress intended that a statute secures rights within the meaning of 1983... is whether Congress has employed in the law sufficiently specific and definite statutory language in order to create rights, at the same time give notice to the relevant governmental unit of its obligations in relation to such rights. The key is what is the legislative intent; and I submit the test, the proposed test that I have just stated, is supported by this Court's prior decisions. And I will admit this language came from the district court of appeals decision in Edwards v. District of Columbia, because the court said in laying... or stating that language which I have just given to the Court, that language was based on that court's reading together the Wright case and the Pennhurst case. And in Wright, this Court filed that the Brooke Amendment to the Housing Act relating to rent limitations could not be clearer as to the maximum rent which could be charged tenants. This, the Court said, was a mandatory limitation focusing on the family and its members. The Court concluded that the benefits Congress intended to confer on tenants were sufficiently specific and definite to qualify as enforceable rights under Pennhurst in Section 1983. And in Pennhurst, the Court said in order to create 1983 rights, Congress should be expected to speak with a clear voice. Now, Pennhurst and Wright and Edwards were all grant-in-aid cases, admittedly, but still the crucial factor, as even Plaintiff admits, is what is the intent of the legislature. Did the legislature intend to create rights within the meaning of 1983?
Antonin Scalia: Do you think in any of those cases, if the Court had not found 1983 rights it could, nevertheless, have... have found the ability to gain an injunction on the part of the individual against the... against the grant agencies?
John Haggerty: Well, there was no--
Antonin Scalia: Do you know any case where we've drawn that distinction, where we say you have a right? That is to say, the government can't behave in this way towards you. You have personally a right to come into court and to sue and get an injunction, but you don't have a right to get damages under 1983. Do you know any... any case that would support that proposition: right to an injunction but no right to damages?
John Haggerty: --I know... I know of no case in this Court, no.
Byron R. White: That may be what this case is all about.
John Haggerty: That's correct. But the reason I believe that the language in the statute should be clear and unambiguous, as Pennhurst indicates, in order to find a legislative intent to create rights within the meaning of 1983, because, to digress a moment, in a preemption case this Court is trying to further some kind of national policy or promote some type of national goal. That is not the issue in a 1983 case. The issue in a 1983 case focuses on whether or not Congress intended to grant rights to the specific individual who is asserting it. And it's certainly to be presumed, if Congress intends to create substantive rights to... of others engage in such action or forbearance of those rights demand, that Congress will use in the particular statute such unambiguous language so as to command such action or forbearance. In other words, to put such persons on notice as what is expected from them, because, after all, the reason that Congress creates rights is to have others honor those rights. Now, looking at the statutory language of 8(d) as amended in the... the NLRA and its legislative history, it indicate that that was not Congress' intent. What does 8(d) say as amended? All 8(d) says is that the obligation to bargain in good faith does not compel a party to reach an agreement. All that language expressly provides that the failure to reach an agreement in a bargaining environment does not subject that person to a charge of an unfair labor practice. The section is very clear. The only benefit is... it provides is what I have just stated. Unlike--
Antonin Scalia: So, Golden State One was wrong. I mean, that's a very good argument for... for the proposition that Golden State One was decided incorrectly.
John Haggerty: --No. Again, as I said, Golden State One was a preemption case, and in... in a preemption case the court is focusing on what needs to be done to further a national policy. In a 1983 case, the court is focusing on whether or not Congress intended to create individual rights in the particular plaintiff who is asserting it.
Antonin Scalia: We didn't find in Golden State... in Golden State One that the employer had a right against the state not to be impeded in the way the state impeded it?
John Haggerty: Yes, the Court did find--
Antonin Scalia: We did find... a right.
John Haggerty: --Yes, but I would say that is a right in a preemption... preemptive sense. Just because the word "right" is used, it has to be looked at in the context in which it is used, just like in the Pennhurst case. In Pennhurst, Congress had set out what they called a bill of rights for the... the disabled; but despite of that this Court did not find that the plaintiff in Pennhurst had a right within the meaning of 1983. Now, as far as the legislative history of the National Labor Relations Act, counsel makes reference to the fact that the Act talks in terms of the rights of the employer and employee. But what the Act says in 29 U.S.C. 141, it talks about the legitimate rights of these parties in their relations with each other, and the purpose is, according to 141 of the National Labor Relations Act, is to avoid industrial strike. You look at the declared purpose of the National Labor Relations Act, and all it speaks of is the obligations to the parties in reference to each other. And as far as 8(d) itself is concerned, that amendment... or, rather, it was amended in 1947 to provide what is a relevant language in this case, namely, the refusal to make a concession does not come within... is... is not a requirement in order to bargain in good faith. And as far as that specific language is concerned, the congressional Service, discussing the House bill and the Senate bill as to that language, said that the reason for that language was that the board was requiring employers to make concessions to show that they were bargaining in good faith. That language had a very specific purpose, because the legislature felt that the National Labor Relations Board was, in effect, going too far in putting pressure on an employer in its bargaining with the union. And, in fact, this Court in Porter Company v. National Labor Relations Board, in talking about that specific language, pointed out the reason for it is that unless Congress writes into the law guides for the board to follow, the board may attempt to carry this process still further and seek to control more and more of the terms of collecting bargaining agreements. I submit the reason for that language was not meant to give an employer, as in this case, rights against a third party, but it was meant to, in effect, control what the legislature saw as an abuse of power by the board. In looking at--
Antonin Scalia: He does have rights against a third party to get an injunction?
John Haggerty: --Again, based on the preemption analyses, that is correct.
Antonin Scalia: Based on any analysis, what you just said is not true, insofar as an injunction is concerned. He does acquire under the statute a right to get an injunction. It's clear enough that we'll give him an injunction, but it's not clear enough that we'll give him damages. Is... is... is that the argument you're making?
John Haggerty: Well, what--
Antonin Scalia: Before we'll give him damages, it has to be really clear, but if it's just sort of clear we'll only give him an injunction. Is... is that the sort of line you're asking us to draw in 1983?
John Haggerty: --Well, what I'm saying is that in order to secure rights within 1983, there should be some... again, the Court has always indicated it's a question of legislative intent. Did the legislature intend to confer rights on this particular party--
Antonin Scalia: Rights, not did he... did it intend to confer 1983 rights. 1983 operates by itself. It's a statute out there which says if you have a right, you get damages. Surely you're not arguing that each time Congress enacts a statute, it must affirmatively say, moreover, the rights under this statute can be sued on under 1983. That's not your position.
John Haggerty: --No, that's not my position. What my position is that the language of the statute in some way has to, as in Wright v. City of Roanoke, has to compel the particular defendant of what they have to do. Now--
Antonin Scalia: But we found that, didn't we, that it does compel the city here to refrain from doing what it did?
John Haggerty: --But again, it was not the express language of the statute as a right. The court implied from the National Labor Relations Act--
Antonin Scalia: Right.
John Haggerty: --that the city had such an obligation.
Antonin Scalia: So it was not clear enough. It was sort of clear, clear enough to get an injunction but not really clear so you can get the damages action, is what you're saying?
John Haggerty: That is what I'm saying because I think there's a distinction in the type of analyses and the purpose of preemption, as opposed to a 1983 cause of action.
John Paul Stevens: Would the case be any different if ten years ago Congress had taken a look at our Machinists preemption case and that line of cases and passed a statute saying we agree... we affirm the holding of the Supreme Court in... in the Machinists preemption case? Would that change the... the case?
John Haggerty: Well, you mean if the Congress expressly stated that--
John Paul Stevens: Expressly stated we think that the... that the free play of economic forces is protected by the statute as interpreted in Machinists, and we hereby ratify and endorse the rule of Machinists. Would that--
John Haggerty: --No, it would not, I... I don't believe, because, again, in the Machinists case and as far as the National Labor Relations Act is concerned, its purpose is to promote industrial peace and define the relationship of the parties, labor, management and the board, in reference to each other. It has... there is nothing at the... in the Act--
John Paul Stevens: --But also and to prevent third-party interference with the bargaining process.
John Haggerty: --Well, the Act doesn't say that. That is the way the court has interpreted--
John Paul Stevens: In Machinists. Then I'm saying what if the Act went ahead and said it. Would it be any different? If the--
John Haggerty: --Well--
John Paul Stevens: --If the Act had specifically said everything we put in the Machinists opinion, if that had all been written out in advance instead of... would that make any difference?
John Haggerty: --Well, again, I... it's a question whether or not they would say... well, I would tend to say yes, that... that probably would be the situation if... provided... if... if there was expressly stated and created some kind of obligation on the part of... of the city... if the statute said that, if the law said that.
John Paul Stevens: See, but... but... but when the court interprets a hole in a statute like that, it's in effect saying, well, this is what Congress really meant and they just didn't articulate it clearly enough.
John Haggerty: No, but again, I... in making it... and I don't wish to repeat myself but I guess I'm sorry if I do, that I believe in a preemption analyses. The court again is trying to further, as I said, some type of national policy, in this case a promotion of industrial peace, and that's the bases for its preemption... its conclusions in reference to preemption. It's based on the Supremacy Clause, namely, to give priority to federal bulls.
John Paul Stevens: You're saying, I guess, that a law that... a federal statute that preempts state law does not give any individual the right not to have state laws enacted? The... the preemption, the federal preemption does not create rights in anybody. It just somehow or other erases state law. That seems to be your position.
John Haggerty: Well, or to prevent the state law from being--
John Paul Stevens: Enforced or--
John Haggerty: --Enforced. Well, it could be express preemption... expression... express preemption, where there could be explicit language in the statute--
John Paul Stevens: --Well, would it be--
John Haggerty: --which compels certain actions on the part of a governmental agency.
John Paul Stevens: --But would it be different if there were a federal statute that said no state legislature or municipality shall enact any legislation that interferes with the bargaining process? If it said... and it's a little broad but if that's what they'd said, would that... would that then give the... the cab company a right in this case?
John Haggerty: I think if there... if it's expressed in the statute, that's correct because, as 1983 says, we're talking about--
John Paul Stevens: But then your distinction is not between preemption and other kind of laws. It's between expressly enacted statutes by Congress and judicially interpreted statutes. That's your distinction, I guess.
John Haggerty: --Well, my distinction is whether or not the statute, looking at the express language or in the legislative intent, does create such a right in an individual. And what I'm saying here is that both the legislative intent of... in 1947 when they enacted this amendment and the express language does not indicate any such right in the plaintiff. It has no language which in any way mandates or compels the city to do anything. In fact, drawing an analogy from the implied right of action cases, which the court has referred to in analyzing <nineteen eighty-three> [= 1983] actions and in the Cannon case, the... the court has used the first test, whether or not Congress intends to create a right in this particular plaintiff. And in the Cannon case, it points out that in talking in terms of an implied right of action case the question is whether or not the person to be charged disregarded a command of the statute. And when the first test talks about whether or not the... the first prong of the test of the implied right of action cases talks about whether or not the plaintiff is an especial beneficiary of that statute, I believe you have to look at that in terms or relationship to what the statute provides. And in this case the statute, by its language, does not provide any benefit as to an employer against a third-party such as the city. It only creates a benefit as against the National Labor Relations Board by preventing them from bringing a unfair labor practice charge. Now, I believe there is also good policy for the test the city is laying out. As fact, as the Plaintiff himself admits, that labor law is a very complex area which the lower courts often misunderstand. And if there's this apparent uncertainty as to when governmental actions may be preempted by the National Labor Relations Act, then there's a problem that local entities, not knowing when they may be liable under 1983, may refrain from engaging in what otherwise may be important and significant regulatory types of actions. Now one other point I would like to make--
John Paul Stevens: Mr. Haggerty--
John Haggerty: --Yes.
John Paul Stevens: --before you leave that, would you tell me again what is the that you propose? And I know... I know I'm probably asking you to repeat yourself, but I want to be sure I understand.
John Haggerty: Yes. The test is... the test, the city submits, is for determining whether or not Congress intends that a statute secure rights within the meaning of Section 1983 is whether Congress has employed in the law sufficiently specific and definite statutory language in order to create rights and at the same time give notice to the relevant governmental unit of its obligations in relation to such rights. And as I said, that language does come from a district court of appeals decision, Edwards v. District of Columbia, and the court said that they utilized that language by their reading together the Wright case and the Pennhurst case, because in Wright the Court... this Court specifically said in finding that there were 1983 rights that the Congress... that the... the Congress intended these benefits... the benefits which Congress intended to confer on the tenants were sufficiently specific and definite to qualify as enforceable rights under Pennhurst and Section 1983.
Antonin Scalia: Mr. Haggerty, that... that... that has some... some intuitive appeal, that test, when one thinks of the poor municipality that doesn't know that it's violating the federal law and... and, therefore, you shouldn't give it... subject it to damages unless it's clearly enough stated. As I say, that has an intuitive appeal up until the point where there is a court decision that says, yes, cities cannot do this; employers do have a right even against the city to continuing negotiating, and the city cannot... impair that. At that point, your argument does not have any intuitive appeal. Why isn't it enough if... if... if... why isn't it enough to say either the statute is clear on its face or there has been a Supreme Court decision that says that the employer clearly has that right? Surely, at that point the city knew that it... that it shouldn't be able to do this thing.
John Haggerty: Well, the city knew at that point, but, of course, at that point they had already had done--
Antonin Scalia: Yeah, but... but what you're arguing now applies to all cities in the future.
John Haggerty: --That's correct.
Antonin Scalia: You're saying no city in the future will ever have a cause of action under 1983 for violating what we said the law is in... in... in Golden State One.
John Haggerty: Yes, because that--
Anthony M. Kennedy: Why does that make any sense?
John Haggerty: --Because, again, it's a question of whether or not the city has violated or acted in disregard of the law, and the law in this case does not command the city in any way to do what the Plaintiff is asserting it should do so as to get 1983 damages. And the reason that I'm saying... saying that the city should have notice, it's not because they can claim, well, they didn't... some kind of good-faith defense, which the Court, of course, has already rejected. The question is if you're looking at legislative intent, does the legislature intend to create these enforceable rights in a plaintiff? It's fair to say that the Congress can speak in a very clear way to so indicate to the defendant or to the governmental entity what they are expected to do. One other point I would like to make that if... it was pointed out in the brief of the amicus that the question in this case does... does not really address the issue that is really involved here. As I said, the issue in this case is whether or not the law... namely, the National Labor Relations Act... created the... the kind of rights that plaintiff is asserting. And the issue in this case only relates to that particular law, this particular statute. It's not a question, as the question presented by the Court, is whether or not the state action was preempted or not. The question is whether or not this law creates that kind of rights. And it's fair to say that, if the question is presented in that way that the NLRB may have come into the case as an amicus to give their expertise as to whether or not this particular statute does create such rights. In fact, this Court in Owens v. City of Independence said in determining whether or not a 1983 action lies will look to see whether or not the municipality has conformed to the requirements of the federal Constitution and statutes. And in this case there is... the way, again, the way the statute is worded, the city did not in any way disregard any command of Section 8(d). That's all I have. Thank you.
William H. Rehnquist: Thank you, Mr. Haggerty. Mr. Fasman, do you have rebuttal? You have four minutes remaining.
Zachary D. Fasman: Just one or two points, Mr. Chief Justice. The legislative intent underlying the National Labor Relations Act was fully revealed in Golden State and before it in Machinists, and I think it's important for the Court to bear in mind the broad context of the federal labor laws in which this case arises. This Court repeatedly has recognized that free collective bargaining is the cornerstone of the federal labor scheme. Bargaining can't be free and unfettered as intended by Congress if management or labor can be punished for their stance at the bargaining table.
William H. Rehnquist: Mr. Fasman, isn't this case almost unique in <NLRA> [= NLRA] preemption cases that have been decided by this Court in that a municipal corporation or some governmental body was a defendant, as opposed to employer versus an employee?
Zachary D. Fasman: Well, the employer versus employee... branch of the preemption document deals with the... deals with a different issue.
William H. Rehnquist: But even Machinists preemption, those cases prior to this one have almost always involved employee versus employer, haven't they?
Zachary D. Fasman: That's exactly right. And that's why--
William H. Rehnquist: So... so isn't my statement correct?
Zachary D. Fasman: --It is generally correct. But that's why this case is so clearly antithetical to the intent of Congress. The National Labor Relations Act was passed, we federalized the law of labor relations to ensure that just this wouldn't happen. The first third of the century, this is what cities did. They put... they put... usually against labor, but they put people in jail. They applied the antitrust laws. They prevented union organizing. They prevented strikes. I mean, this is the classic... this, if anything, this is more of a Machinists case than Machinists, and that's my fundamental point. Bargaining can't go on if you can be put out of business because of your stance at... stance at the table.
Byron R. White: Could you have maintained your action under... in... in Golden State One without resorting to 1983? Could you have just--
Zachary D. Fasman: Certainly.
Byron R. White: --just pled the National Labor Relations Act?
Zachary D. Fasman: We could have pled just a violation of the Supremacy Clause in a federal question. I think we could have.
Byron R. White: And... and... and would have had a cause of action under the Supremacy Clause or a... a cause of action under the labor law, or both?
Zachary D. Fasman: There's a question as to whether you have an implied right of action under the... under the labor laws or under the Supremacy Clause as such.
Byron R. White: And... and if you hadn't have used 1983, would you have gone through the Cort v. Ash--
Zachary D. Fasman: In an implied right of action?
Byron R. White: --Yes.
Zachary D. Fasman: I presume we would have, yes. But the point is that we did plead it under Section 1983, and so I think that gets us right to--
Byron R. White: Do you think that if, even though you might not have had a cause of action under Cort or whatever the formula is for implied causes of action, you nevertheless would have it under 1983?
Zachary D. Fasman: --I think we have one under Cort as well. I don't... I don't agree with that characterization, but I think we're well past... we're well past that. There's no question that we have... that we have a... a cause of action, jurisdiction, standing. We've got a remediable wrong and an admission that injunctive relief is appropriate here. We've left Cort v. Ash a long... a long... a long way back, it seems to me. The message that's... that's imposed by the Ninth Circuit decision, it seems to me, is completely inconsistent with Machinists, with Golden State, with free and unfettered bargaining and inconsistent with this Court's repeated efforts to protect the bargaining process and the parties to that process from government coercion. The problem with the decision below is not just that it ignores congressional intent but that it stands congressional intent on its head, and that decision should not be allowed to stand. Thank you.
William H. Rehnquist: Thank you, Mr. Fasman. The case is submitted.