Earl Warren: Vernon Kimbrough, Petitioner, versus United States. Mr. Terris, you may continue --
Bruce J. Terris: Mr. Chief Justice --
Earl Warren: -- your argument.
Bruce J. Terris: -- may it please the Court. At the recess yesterday, we were discussing the Government's contention that concealment and the transportation involved in this case, were completely unrelated except to the fact that the same automobile and the same persons were involved. Apparently, petitioner accepts this characterization of the facts since yesterday, you'd not argue the position of his brief if one general course of conduct was involved but instead he maintained the considerably more extreme position that one automobile means one offense no matter how unrelated the acts concerning this automobile may be. Now, turning to the indictment which is on pages 2 to 4 of the record, Count 3 of the indictment which is the concealment count, alleges that at particular Ford automobile was stolen in Lake City, Florida on January 19th, 1941. It further alleges that between January 19th and February 13th, 1941, petitioner and his two codefendants received, concealed and stored the same automobile in Kentucky. And it further alleges that the automobile at that time of the concealment was then and their moving as was a part of and constituted interstate commerce from Lake City in the State of Florida to Owen County near Frankfort, Kentucky.
Earl Warren: Is that the same automobile that was --
Bruce J. Terris: Yes.
Earl Warren: -- involved in the other two counts?
Bruce J. Terris: That's right. The same automobile was involved in all three of the counts.
William O. Douglas: And we know that the concealment was after the stealing.
Bruce J. Terris: The concealment was after the stealing. We have -- we have no knowledge that petitioner or his two codefendants participated in the stealing, that's not shown in the indictment.
William O. Douglas: The stealing -- the stealing took place or about the --
Bruce J. Terris: 19th.
Speaker: 19th.
Potter Stewart: So far as it appears, as you just said the -- the automobile was stolen by somebody else.
Bruce J. Terris: That's right and was transported to Kentucky by somebody else.
Potter Stewart: By somebody else.
Bruce J. Terris: That's right. Now, of course we seek concealment and storage of the stolen automobile was only a federal offense, when the automobile is moving in an interstate commerce. Now, Count 3 specifically bases its allegation of receipt, concealment and storage of the automobile from Florida to Kentucky, not the subsequent transportation which is involved in Count 2. Therefore, the acts of concealment which are alleged in Count 3 are specifically tied to the earlier transportation on January 19th. Now, Count 2 of the indictment, which is a transportation count, alleges the petitioner and his two codefendants transported the same Ford automobile --
William J. Brennan, Jr.: Is this the first count?
Bruce J. Terris: No, this is the second count. The first count is the conspiracy count and that isn't involved here at all, Your Honor. Count 2 alleges that petitioner's two codefendants transported the same automobile on February 12th from Atlanta, Georgia to Kentucky. Now, since on or about January 19th, the automobile was in Kentucky and since he moved from Georgia to Kentucky on February 12th, it is clear that sometime between January 19th and February 12th, the car was moved from Kentucky to Georgia. Now, whether it was by -- moved by petitioner or by someone else, is again not clear from the indictment. So -- so that for all the indictment shows, the possession of the car may not have even been in continuous possession of petitioner or his two codefendants. Therefore, the -- the facts of this case are that the acts of concealment alleged in Count 3, were not only in tied in the indictment to a transportation which was not alleged as an offense in the indictment, but an additional transportation, which was not alleged as an offense in the indictment, occurred between the acts of concealment, the beginning of the acts of concealment and the transportation which was charged.
William O. Douglas: What if they've been properly charged as a separate count in the indictment, the transportation from Florida to -- to Georgia?
Bruce J. Terris: Well, there is -- there was no transportation from Florida to Georgia, unless that was the route that was from Florida to Kentucky.
William O. Douglas: Suppose it was.
Bruce J. Terris: Well, and --
William O. Douglas: Let's assume.
Bruce J. Terris: -- and assuming the petitioner was the --
William O. Douglas: Yes, okay.
Bruce J. Terris: -- was the -- person who did the --
William O. Douglas: Could you take that as --
Bruce J. Terris: -- the transporting.
William O. Douglas: Transporting through three states to make it two crimes?
Bruce J. Terris: Well, I'm -- I'm not quite clear on the facts you're posing to me, Your Honor. If you're -- if you're suggesting a continuous transportation from Florida to Kentucky, whether we can charge an offense for the transportation from Florida to Georgia, then from Georgia to Tennessee and then from Tennessee to Kentucky, that -- that involves a much more difficult issue and as far as I've been able to see, the Government has never made that kind of an allegation in any of the cases which have been reported. They've always alleged the entire transportation then mentioned the intermediate states in the indictment. Now, insofar as your -- whether you're suggesting that there was a -- a whether we -- if petitioner had brought the cars from Florida to Kentucky, we could allege that entire transportation plus the transportation from Georgia to Kentucky, which was made three and a half weeks later. That again is a -- is a different issue and that --
William O. Douglas: You're getting close to -- on this case, when you --
Bruce J. Terris: That is not -- that is not too separated from the -- from the facts of this case. If we assume those are entirely unrelated transportations, in the sense that they may well have been done for entirely different purposes. In short, as we read the indictment, the facts of this case so that the acts of concealment and the acts of transportation which were alleged, were separate and entirely unrelated. This is suggested very strongly in the indictment, but this is especially true, since we believe that under well-established rules of law, this indictment must be construed in the way which is most favorable for the Government. It's, of course, a familiar principle that a final judgment is presumed to be correct and that the burden is on the person attacking that judgment to show the facts supporting his claim. Now, your petitioner pleaded guilty and thereby removed the necessity for the Government to prove the facts underlying the indictment and he admitted his separate guilt on the two separate counts. And at the same time, he made the indictment, the sole relevant fact when he made this collateral attack, 18 years later. Therefore, we believe that insofar as the indictment is ambiguous, petitioner has failed to sustain his burden of proof.
Potter Stewart: Was he represented by a counsel (Voice Overlap) --
Bruce J. Terris: He was -- he was represented by a counsel. That -- that appears in the record, Your Honor.
Hugo L. Black: Was there any evidence offered?
Bruce J. Terris: Any evidence offered?
Hugo L. Black: Yes.
Bruce J. Terris: No evidence was offered as far as we know, Your Honor.
Hugo L. Black: What do you mean then by saying, he failed to sustain his burden of proof?
Bruce J. Terris: Well, since he pleaded guilty, the sole relevant document before -- for this Court and before the two lower courts on this motion, was the indictment. And therefore, insofar as the indictment is ambiguous, that he -- that --
Hugo L. Black: Well --
Bruce J. Terris: -- that is his fault and not -- and not the Government's.
Hugo L. Black: (Voice Overlap) has been opened to him in a habeas corpus proceeding where he challenged the judgment as being invalid and he offered evidence to prove what it seems to be rather studiously kept away from us, what actually happened in this case?
Bruce J. Terris: Well, first of all Your Honor, not attempting to keep the facts -- the facts away because we don't know what the facts are. We have --
Hugo L. Black: Well, they're possible of ascertainment.
Bruce J. Terris: Well, that I -- that I don't (Voice Overlap) that's right, I -- I don't very much at the present time, whether the facts in the -- in the sense of something that one could -- could prove could --
Hugo L. Black: I mean as to who stole this automobile? Whether he stole it and what part he had to do with it. I'd suppose that could've been ascertained in the hearing before the Court --
Bruce J. Terris: Well --
Hugo L. Black: I don't' know that could be done. But I'm just asking it.
Bruce J. Terris: I -- I don't get very much, Your Honor. He didn't make his motion until 1959, judging from what -- our file show, that guy was having a very difficult time finding the facts of this case, back in 1941.
Hugo L. Black: They found it, then you'll own the automobile, doesn't it?
Bruce J. Terris: They know -- Yes, Your Honor that's the alleged in the indictment, who was --
Hugo L. Black: Somebody down in Florida.
Bruce J. Terris: That's right. And -- and of course, they could prove that it would -- that it was stolen. And -- then perhaps, they could still prove that today. But that and even the proof of the -- of course the stealing, wouldn't -- wouldn't help us to decide this case. The stealing is not part of the allegation in any fashion.
Hugo L. Black: That's a question of whether they've been charges, more charges made against him and should have been made.
Bruce J. Terris: There -- there is indeed that question.
Hugo L. Black: And that could, that evidence would reveal that, wasn't it?
Bruce J. Terris: The -- the evidence would reveal that if the evidence was -- was still available. Of course, the Government's primary contention in -- in that regard, is that on -- that on collateral attack, a person is not entitled to re-litigate, when he's pleaded guilty.
Hugo L. Black: I was asking on the assumption of possibility that the Government might be wrong on that and then in habeas corpus, you had the right to go to the very roots of the thing, finding out what actually happened.
Bruce J. Terris: Well, we think that you've never been entitled in habeas corpus to attack the judgment in this type of situation, where a person has pleaded guilty and then wants to establish the facts contrary to --
Hugo L. Black: Perhaps, that wouldn't be contrary, wouldn't it? It would just be showing what actually happened.
Bruce J. Terris: Well, to -- it might turnout not to be contrary. It might only be an explanation within the face of the indictment or it may -- might turnout to be contrary either -- either way. We don't think it -- he was entitled under habeas corpus. There's no entitled on collateral attack to -- to re-litigate that issue.
Potter Stewart: This conviction was almost 20 years ago.
Bruce J. Terris: That's right. It that was in 1941, it was done.
Potter Stewart: How come this petitioner is still in prison under these sentences?
Bruce J. Terris: Well, Your Honor, if it's a -- it's fairly -- it's fairly complicated --
Potter Stewart: But he is, in any event, he is.
Bruce J. Terris: He is in prison.
Potter Stewart: Under one of these sentences?
Bruce J. Terris: Under one of these sentences. He -- he got a conditional release and he violated the conditional release and therefore, he's now back serving the remainder of the -- of the sentence, which he had not completed. Construing the indictment most favorably for the Government, we can properly assume a state of facts, which the concealment and the transportation were entirely separate.
William J. Brennan, Jr.: How much longer do they have to serve?
Bruce J. Terris: Borrowing time off for good behavior, he has -- he has until early in 1965.
William J. Brennan, Jr.: And he must have been released quite a long period?
Bruce J. Terris: Well, to be more specific, he -- at the time that he was given this 12-year sentence, he was given an additional five-year sentence, for attempted escape while he was in jail on -- on this offense. So he had a 17-year sentence to dissatisfy. He was given a conditional release in 1951. In 1955, he was picked up again under the direct, under the same statute and convicted. He served that sentence first and now, he is back serving the -- the sentence which is involved here and that would last about a (Voice Overlap) --
William J. Brennan, Jr.: And it's not until 1965 that he'd be illegible for release under one of these sentences?
Bruce J. Terris: Well, that's right.
William J. Brennan, Jr.: And additional five years -- on escape, was a separate sentence, was it?
Bruce J. Terris: That's right. Apparently, he's not serving that sentence or any portion of that sentence at the moment. Stating the -- the facts of the case more concretely, we feel we can assume consistent with the indictment. And on January 19th, petitioner and his codefendants, either themselves transported the automobile from Florida or received it in Kentucky from persons who did transport it. That on that some -- same day or shortly thereafter, petitioner and his codefendants engaged in acts of concealing the automobile, such as changing the motor numbers or repainting the car or similar such acts, which have been held in other cases to constitute acts of concealment under the statute. And sometime later, perhaps some three weeks, either petitioner and his codefendants or someone else, transported this automobile from Kentucky to Georgia. And we can -- and we can properly assume that the purpose of the return trip from which petitioner and his codefendants transported the automobile from Georgia to Kentucky, was not for the same purpose as the original concealment. For example, it may have been to go visit friends, go on legitimate business or even they commit another crime. If this case is considered on these facts, which we emphasized that it must be, we feel that there is -- there were clearly two separate offenses which are separately punishable under the statute. We feel that it's clear that if a person transports the same automobile across state lines and then three and a half weeks later, an entirely different criminal impulsive for a different purpose, he repeats the same act that there would clearly be two separate violations of Section 3 of the statute. We can see no difference when the person commits acts of concealment, violating Section 4 of the Act. And then three and a half weeks later, for an entirely different purpose and entirely different criminal impulse, he violates Section 3 by transporting the automobile across state lines. Now, we think that the rule of lenity clearly does not apply in this situation then none of the case is decided by this Court composed to even suggesting that there -- there is only offense involved here or might to delay discussion of the cases applying the rule until after he discussed petitioner's contention, which he makes in his brief and the general course of conduct is involved. Since as we've persist, I hope to show that the rule of lenity would not apply even if the general course of conduct were involved and for sure, it would not apply if the acts were entirely separate and unrelated. Assuming the petitioner is correct and then the general course of conduct were involved, I -- I take it that this would mean that there is a single general course of conduct relating to the same automobile from January 19th to February 13th, and this is the only possible construction of the indictment. The most that a general course of conduct to mean in this context is that a single criminal impulse and a single criminal purpose underlay both of the acts of concealment and the acts of transportation. It would be consistent with this view of the facts for example, for petitioner and his codefendants to have intended on January 19th to conceal the automobile for purposes of sale and to have taken the trip to Georgia for that purpose and perhaps it was unsuccessful to return to Kentucky. But we think that even under that -- that group of facts, assuming that would -- that were the case before this Court that the rule of lenity does not apply. I would like to discuss in order of the cases which petitioner has cited and which this Court has applied the rule of lenity to -- in order to forbid consecutive sentences. In Bell versus the United States, which of course involved the transportation of two women for immoral purposes across state lines on the same trip, in the same automobile at the same time, therefore, the very same act of transporting the -- of one woman also transported the other woman. Certain at the least, a common transaction was involved. In fact, the Court defined a rule of lenity in the Bell case, as a rule and I quote, "Against turning a single transaction into multiple offenses, unless the intent of Congress is clear." Now, in the Ladner case which petitioner also cites, person -- is all that two federal officers while under arrest, perhaps arguendo and the -- in the facts before the Court by a single discharge of a gun. Now, obviously, this is a single act in the narrowest physical sense.
William J. Brennan, Jr.: As a matter of curiosity, what ever happened to Ladner (Inaudible)
Bruce J. Terris: I'm not -- I don't know, Your Honor. In the Prince v. United States which involved the Federal Bank Robbery Act, this Court held that -- that a person couldn't be punished both for entry into the bank with intent to rob it and for the completed robbery. But not only did this involve what the Court called, a narrow question of the unique statue of limited purpose, but the factual situation is clearly again, one were both defenses are a part of the single continuous transaction within a very short period of time. The case in which petitioner principally relied in his brief is the Heflin case, which also involved the Federal Bank Robbery Act. Either the Court held that bank robbery could not be separately punished for receiving money, he had helped to steal. Again, we think the Court was considering a continuous after transaction which was intimately related. And in fact Justice Douglas speaking for the Court specifically stated that the issue before the Court was the intent of Congress in punishing multiple aspects of the same criminal act. The petitioner is suggested in his brief that Heflin was considered by the majority of this Court under Rule 35 and therefore only the indictment was before this Court. The indictment there is not too dissimilar in the -- in the concealment count to the -- to Count 3 of the indictment here. They were to allege receipt, concealment, storage and other -- and other similar words. Petitioner therefore suggested in Heflin as here, if the indictment where construed in the manner most favorable for the Government, totally separate acts of bank robbery and concealment, would have been involved there. But we submit to the Heflin, well, this Court could not construe the indictment in the manner most favorable for the Government, since a transcript of the trial was before the Court. It certainly would have been strange for this Court to construe the indictment most favorably for the Government in direct opposition to the facts which the Court knew to be truth. In fact, the Government urged there and it cited the transcript that the only facts there which were -- the only acts by the petitioner there, which were separate from the robbery, was the dividing up of the loot and -- which lose immediately after the robbery. And no claim was made for the Government that sometime later, separate acts of concealment unrelated to the robbery were armed -- were involved. The Government's contention of separateness was the acts were physically separate. And in fact, the Court likewise, considered only the acts of dividing up the loot in its opinion and -- and decided that they were part of the same criminal act.
John M. Harlan II: How did the facts in this case differ -- you construe the indictment differ from the Woody case.
Bruce J. Terris: The facts do not seem significantly differ from the Woody case, but if the Woody case is considered with the transcript, which it was of course, before this Court. Without the transcript which was the position of the case before the Court of Appeals --
Speaker: (Inaudible)
Bruce J. Terris: There is some difference and that the Woody case was the more difficult case for the Government. Looking purely at the indictment, the indictment in the Woody case alleged that the acts of -- receipt, concealment and storage, occurred on March 16th, 1954. That was the same date of the transportation alleged in the indictment in the Woody case, so it -- it would -- there was much more possibility of the -- of the prisoner there, arguing that the acts were interrelated. Of course, as it turned out in the transcript, as this Court considered the case, that there was a considerable separation and time thereto, between the acts of -- of concealment and the acts of transportation. Although, there was no indication of course, whether there was a different criminal purpose involved, presumably there were -- the criminal purpose for both there was keeping the car from it -- from its owner.
William O. Douglas: That's the one that was affirmed by the -- the divided (Voice Overlap) --
Bruce J. Terris: That's right Your Honor.
Earl Warren: Mr. Terris, where would your reasoning lead us in the case where two persons agreed one day to transport a stolen car across state lines and the following day, they proceeded to do that and then having cross the state line, they put the car in a garage overnight and to say, they conceal it from (Voice Overlap) --
Bruce J. Terris: Where the storage, yes.
Earl Warren: And the next morning, they were arrested.
Bruce J. Terris: That's a considerably more difficult case for the Government.
Earl Warren: Well, that would maybe a more difficult, but where would your -- your reasoning lead us to in the case of that crime, would there be three crimes or not?
Bruce J. Terris: We still think that the Congress intended to punish the act separately, but that -- that issue would be the much more difficult one, whether the same kind of reasoning that this Court applied in Heflin, characterizing the statute, there is a unique statute. But if it thought that this statute was -- was similar and the intent of Congress was similar, then we think that the same result would have to come about in that case as in the Heflin case.
Earl Warren: In other words, you think there would be three crimes?
Bruce J. Terris: Three crimes, Your Honor --
Earl Warren: Yes.
Bruce J. Terris: -- to detract you mean that the conspiracy and the transportation and --
Earl Warren: Transportation and concealment.
Bruce J. Terris: Well, we think clearly the conspiracy -- the conspiracy is separate. Your Honor's decision mandate, although under a different statute, reaffirms that line of cases but as to the other two, we think they were -- they are separate, but I -- I want to emphasize that it is a much more difficult case than as before this Court and that -- and that -- that case involves how far the Heflin case applies to other statutes. We think the Heflin case has nothing to do with -- with the case that is now before the Court.
Earl Warren: How is this so much different that was -- that was -- it would be a break in that case, they -- they put the car in the garage in the State overnight and -- and --
Bruce J. Terris: Well, I --
Earl Warren: -- will rest again.
Bruce J. Terris: I assume that when -- when the intent to transport when the petitioner -- when the defendants there had their intent to transport, that they had unitary intent in which they decided they were going to transport it then they were going to keep it then perhaps, they were going to sell it when they -- when they were finished. Here, we think that there was no -- there was no such interrelationship and time itself, makes a difference we think, that if a person that -- that contrary to what petitioner argues, that if a person still transports a car today, keeps the automobile and transports it across state lines two years from now, that these -- these are in no -- in no way the same criminal act. And so we think time doesn't make a difference and the three and a half weeks itself makes a significant difference in the case between the one that you post to me in the -- in the case here. But in addition, construing the statute, we have an intermediate transportation which may have nothing to do with petitioner and his two codefendants and we may at well have entirely different criminal purposes and impulses. Briefly, we also think that the Universal C.I.T. Credit Corporation case is also very different. There, the Court did speak of a course of conduct but we like to emphasize that the course of conduct there was under each different criminal provision that was a separate course of conduct which this Court held, was separately punishable. If we apply the same kind of reasoning to this case, then -- then a person transports the same automobile twice couldn't be convicted twice no matter how much the separation in time, but that wouldn't at all apply to the facts of this case that would -- it would be a separate course of conduct for concealment, receipt and storage and there would be a course of conduct for transportation and each one of those would be separately punishable. Finally Your Honors, petitioners argue that a person using a -- a stolen automobile over a long period of time, may cross numerous state lines and therefore, maybe guilty of multiple offenses under the Government's theory. I suggest that this would make a user of stolen automobiles liable to heavier punishment than a professional criminal. Well, this may at times be true. We cannot assume these pre-charges will abuse their discretion by giving consecutive sentences, when they are undeserved. And we must assume the district judges will properly exercise their discretion as did the District Judge here, when he based petitioner's punishment on the -- on his record, which was not an insubstantial one.
Earl Warren: Mr. Barrett.
Edward L. Barrett, Jr.: I may have five more minutes, Your Honor. Just really two additional points, we've discussed the construction of the indictment. Petitioner's position I think, differs in the Government's only into this. Petitioner would say that the indictment charges that in the third count. The petitioner's codefendants received, concealed and stored the automobile between the 19th day of January and the 13th day of February. Second count charged that they transported it on the 12th day of February. Therefore, the petitioner thinks that it's fair to assume from this indictment that petitioner and his codefendants had possession of the car from whatever point at which they received it to and including the period of transportation, because the transportation and his charge is in the middle of the period in which he was charged that they received concealment stored. So --
Felix Frankfurter: An allegation at the time on important in an indictment?
Edward L. Barrett, Jr.: Well, if you disregard allegations of time Your Honor, then you could read this indictment of saying that the transportation was on the 12th and their concealment was on the13th.
Felix Frankfurter: Or you just -- if you could read it giving some other time.
Edward L. Barrett, Jr.: That -- that they're tied together here and perhaps the only sentence that -- that's relevant I think, but generally the course of conduct here, a general period of time, both defenses related to an automobile. I suspect that in dealing with this problem perhaps, the Court is as well off to have no other facts than it has because I'm not sure there's any stocking place, between saying, this statute meant to get that separate persons who were involved in varying ways with respect to a stolen car and saying on the other extreme, that criminality here becomes a factor of time and distance. And that the more time that elapses, the more things that a person does with the car, the more possible counts that may be charged against him. And I suggest here that generally and this is a special kind of statute, generally, we don't calculate criminality in that way. Certainly in the field of larceny generally, the man's punishment doesn't rise with the length of time that we hold on to the stolen -- or stolen article, or with the number of things he does with the stolen article before the time in which he's caught. These were all regarded as part and -- of the necessary incidence of effect. Now true, we're not dealing with a larceny statute here. We're not dealing with the larceny statute only because Congress didn't have the constitutional authority to make a larceny statute, so they made it to transportation statute and tied it in here, really assisting the States in the enforcement of their own law here not any separate federal interest basically beyond that, assisting the States in enforcing their larceny law. We accept the Government's contention, the man who steals the car and keeps it within the State where he steals it, probably will get under most state laws the time whereof one charge, one sentence or whatever the local sentences for larceny of automobiles. No matter how long it keeps it, no matter what he does with it or how many crimes he commits, committed or what. This was an incident, but here once he go across the state line, the Government's argument now and they make it quite clearly certainly on page 13 of their brief that the longer he keeps the car, the more things he does with it, the more places he drives it and so on, the more crimes, potential crimes he's creating. All I suggest is doubtful that Congress intended to give to courts the discretion to impose what could be an obviously enormously large sentences for this offense, under -- under this situation. And beyond that, it seems to me that with respect to the application of the prior cases, I suggest that the Government's construction here is somewhat narrow, that the rule of lenity as I read it, as this Court has adopted it, is a part of the general rule with statutory construction.
Felix Frankfurter: Has this -- has this Court in any case, ever said there is a rule of lenity?
Edward L. Barrett, Jr.: Well --
Felix Frankfurter: Has it ever said there was -- there was a rule of lenity? It has said something very different. It's said that when we are doubtful, we reject the harsh of punishment.
Edward L. Barrett, Jr.: That's right.
Felix Frankfurter: Which is a very different thing than to have a positive, affirmative governing rule that you apply -- that you read statute, with some notion of lenity in mind?
Edward L. Barrett, Jr.: Well, within the general statements, Your Honor that petitioner's position that the general statement certainly is not confined as the Government suggests to whether you have separate acts or don't have separate acts. It's a general proposition which petitioner argues, should apply here. The statute is not clear. It can reasonably be read as the saying, we're going to reach different people and not multiply offenses to one individual. There are potentialities of harsh punishments being imposed if you read the statute, as the Government reads it. It seems to me here, the conditions are satisfied for the applying of this general notion statutory construction.
Potter Stewart: Your -- excuse me --
Felix Frankfurter: Go on.
Potter Stewart: Your test as I understand it, would be this, that if the same defendant and the same automobile then there can only be one offense under the direct?
Edward L. Barrett, Jr.: If now, I -- I'd say, you have to qualify this that if -- if the automobile was stolen --
Potter Stewart: And then recovered --
Edward L. Barrett, Jr.: -- and recovered --
Potter Stewart: -- or re-stolen after (Voice Overlap) --
Edward L. Barrett, Jr.: -- and then a year later, it's re-stolen, this is different.
Potter Stewart: I see, yes.
Edward L. Barrett, Jr.: But -- but from time from which the car is stolen until which somebody is apprehended, that one defendant under my construction shall only commit one crime (Voice Overlap) --
Potter Stewart: It wasn't in fact anyone (Voice Overlap) would be.
Edward L. Barrett, Jr.: That's right.
Charles E. Whittaker: Mr. Barrett, what -- what about this situation. If the sentence charged with receiving and storing the car on the 1st of January, in Frankfort, Kentucky and then the second count, is charged with transporting that same count on the 4th day of January from Kentucky to Florida. Is that only one offense written thereto?
Edward L. Barrett, Jr.: Well, under my contention is we have to regard it -- we really should regard it as one offense. I think this is basically the trouble we get into here, is because Congress was dealing with the situation where they had constitutional limitations. They couldn't start out by saying, "We're going to punish you for larceny. We're going to punish it for receiving stolen property." So you punished transporting and then you -- you get into -- and then you punish receiving and stealing and you read the -- to what you can get out of the congressional history, they're thinking of different people. Now, if the man receives the car from this person who stole it in another State and then he subsequently transports it. I still don't see any reason for interpreting the statute as to say, "Well, he should be charged with the receiving and in the subsequent transporting."
Felix Frankfurter: (Inaudible)
Edward L. Barrett, Jr.: I just going to add one thing, it seems to me here, particularly difficult and more so than the other statue you've dealt with, to draw any line other than the quite broad line here, because unlike an ordinary theft case such as you have in the Heflin case that the number of -- of offense of separate acts they're going to occur for somebody who stole something from a bank. It will be going to relatively small normally, but in the automobile case and normal concomitant into the theft of the car, is going to be many -- often, would be many act of transportation, many acts of concealment, because this is what you do. You steal the car to use it or to sell it, to take it somewhere to dispose of it and this adds up the possibility of creating many separate offenses in the ordinary transaction.
Felix Frankfurter: You -- you started out with, what to me was a very engaging general consideration and just ended it up -- ended up with it, a minute ago. Namely and it -- and I think very engaging and -- and far reaching, namely that we're dealing here with the crime made so by Congress, not under its extraordinary penal cars, but as an adjunct and as a help to state prosecution because it's assumed with the jurisdiction.
Edward L. Barrett, Jr.: Well --
Felix Frankfurter: You know very well that the large number, the bulk of penal legislation federally enforced it derived from the Commerce Clause and if you're -- if you're -- generally, all you have to see where this case. I'm quite aware of it, but since you invoked the general principle, I want to consider it that this is all and you said a minute ago, you start out which I get. This is all in aid of state, what is really local -- what is really local, what a local misconduct. Well, when you think of how much there is on the -- on the -- in the Code in 18 U.S.C. and has been for the last one, ever since the champion to way back the lottery cases are, in which Congress has made crimes hanging them on -- pegging -- to peg on which they hung the power in the Commerce Clause, but I don't see that that should lead us in all those cases to say, "Oh, since this as it were, an auxiliary power, we must looks up and confine the person.
Edward L. Barrett, Jr.: Your Honor, I don't think that my argument is slightly different I think when you suggest. All I'm arguing is that since here, Congress was -- was passing this law an aid of the States, because they couldn't cope with the stolen car problem. It's reasonable and to read the statute, so that you don't impose much harsher consequences on the man who transports the car across the state line, than he would ever receive, if he did all the same acts with reference to the same car within a state and in this sense, --
Felix Frankfurter: Alright, that's where --
Edward L. Barrett, Jr.: Yes.
Felix Frankfurter: I -- I don't think, at least I don't. I don't think, I --
Edward L. Barrett, Jr.: This goes to (Voice Overlap) construction, here.
Felix Frankfurter: -- conceive what you said. But --
Edward L. Barrett, Jr.: Yes.
Felix Frankfurter: -- at just there that I -- that I -- I'd rather distortedly, because Congress -- the purpose is Congress said, "We don't want to cut her up interstate commerce and make these national auxiliary then submit for crime. And therefore, I don't find any -- I can't impliedly find any restricted way of looking at the statutes. If it has in fact, not only make the direct transportation or direct use of the mail, direct crossing state line an offense and also said we're going to go out after all the -- all that is related to the power that we have.
Edward L. Barrett, Jr.: This really all -- I think all comes down Your Honor, to the simple question here, whether you read the congressional history as an intention merely to reach all the separate persons, could get and have connection with this car as it moves along or whether you read it to improve just to -- multiple offenses to the single individual.
Felix Frankfurter: Or -- or as you read it, not shedding in the light on it at all.
Edward L. Barrett, Jr.: Yes. [Laughs]
Earl Warren: Mr. Barret, before you sit down, I should like to express appreciation of the Court to you --
Edward L. Barrett, Jr.: Thank you, Your Honor.
Earl Warren: -- for accepting this assignment and for your diligence in pursuing it.
Edward L. Barrett, Jr.: Thank you, Mr. Chief Justice.
Earl Warren: And Mr. -- Mr. Terris, may I thank you too, for your able representation of the Government.


William H. Rehnquist: We will now hear argument in Cause Number 86-594, National Labor Relations Board v. United Food and Commercial Workers Union. Mr. Come, you may proceed when ready.
Norton J. Come: Mr. Chief Justice, and may it please the Court: This case presents two questions. One, whether the withdrawal of an unfair labor practice complaint by the General Counsel of the National Labor Relations Board pursuant to an informal settlement entered into prior to the commencement of the hearing on the complaint constitutes agency action that is subject to judicial review. The second question is whether, assuming that the GC's action is subject to judicial review, the General Counsel must hold an evidentiary hearing whenever the party who file the unfair labor practice charge objects to the settlement agreement. Now, before addressing these questions, I should like to spend a few minutes outlining the statutory scheme and the Board's procedures for implementing it because I think it's important to understanding the resolution of the question. The National Labor Relations Board confers upon the National Labor Relations Board authority to prevent any person from engaging in an unfair labor practice affecting commerce, and it sets forth in general terms the procedure to be followed in determining whether an employer or a union has engaged in an unfair labor practice and the appropriate order, therefore. However, Section 3(d) of the National Labor Relations Act provides that the Board's General Counsel, who is a statutory officer appointed by the President with the consent of the Senate, shall have final authority on behalf of the Board in respect to the investigation of unfair labor practice charges and the issuance of complaints in respect the prosecution of such complaints before the Board. Now, the procedure the Board has devised attempts to effectuate this separation that 3(d) makes between the Board's prosecutory authority on the one hand and its adjudicatory authority on the other. An unfair labor practice charge case is initiated by the filing of a charge. It's investigated by the Regional Director, and if the investigation indicates the charge has merits,--
Byron R. White: Where does the charge come from?
Norton J. Come: --Any person may file a charge. In this case, it was filed by the Food and Commercial Workers Union.
Byron R. White: You mean just any person in the United States?
Norton J. Come: Yes, Your Honor.
Byron R. White: Whether he's an employer or employee?
Norton J. Come: That is correct. Usually the charges are filed by the employer or an employee or the union.
Harry A. Blackmun: Well, this particular case is one between two unions, isn't it?
Norton J. Come: Between two unions and an employer. If the investigation reveals that the charge does not have merit, it is either withdrawn or dismissed, in which case the charging party has an appeal to the Board's General Counsel. If the Regional Director concludes that it has merit, he affords an opportunity for a settlement of the charge. At this stage of the proceeding, the settlement is usually what is called an informal settlement, which does not require the entry of a Board order or a court decree. It consists of a commitment by the charge party to take the agreed-upon remedial action and the case is closed upon compliance with that commitment. If, later, there is a failure to comply, the charge, the prosecution of the charge can be resumed. Now, if no settlement is reached at this stage, a complaint issues, and if the complaint goes to hearing,--
William J. Brennan, Jr.: Does the Regional Director decide the complaint solution?
Norton J. Come: --The Regional Director does. He's acting as the agent of the General Counsel.
William J. Brennan, Jr.: He's not the Board's representative?
Norton J. Come: No, he's not the Board's representative. He... the statute, as I indicated, gives the Regional Director final authority over the investigation of unfair labor practice charges. The statute also gives the General Counsel supervision over the employees and the regional offices, and when the Regional Director is working on the unfair labor practice phase of the proceeding, he is exercising the General Counsel's 3(d) authority. When he's working on representation cases, which lead to elections, he is also working under the supervision of the General Counsel, but, there, the General Counsel has been delegated by the Board the authority to handle representation, supervise the handling of representation cases. But with respect to the complaint phase, the Regional Director is acting as the agent of the General Counsel. Surprisingly, these things, over time, have been kept straight, although it may seem difficult to conceive of it. But if a settlement cannot be reached, as I indicated, the case... yes, Your Honor?
William J. Brennan, Jr.: There's something in the way of a case. He may try then to effect settlement, is that correct?
Norton J. Come: Yes, Your Honor.
William J. Brennan, Jr.: But suppose the party doesn't want to engage in any settlement discussions, does he have an appeal?
Norton J. Come: At that point, he issues a complaint.
William J. Brennan, Jr.: Oh. The Regional Director issues a complaint.
Norton J. Come: He issues a complaint.
William J. Brennan, Jr.: And the party against whom it's issued has no appeal to the General Counsel before he has to answer the complaint, does he?
Norton J. Come: Not normally. I mean, the procedure on appeal is usually invoked where a charge is dismissed, but, as I say, after a complaint issues, it may go to formal hearing, but there is usually a two to three month period between the issuance of the complaint and the formal hearing, and during that time, there is further opportunity for settlement of the case or the complaint may be withdrawn because the Regional Director, in preparing for trial, finds that his evidence just won't stand up. Now, under the Board's rules, the Regional Director can withdraw a complaint prior to hearing on his own motion. This is a provision that's been in the rules, even way back in the Wagner Act days. Similarly, as I said, he can enter into a settlement agreement. At this stage, the post-complaint stage, the settlement agreements can be of two forms. You can have a formal settlement, which provides for a Board order and often a consent decree, and that goes on up to the Board because it requires a Board order and Board approval.
Byron R. White: These settlements are provided for by regulations, aren't they?
Norton J. Come: Yes, they are, Your Honor.
Byron R. White: And both the formal and the informal?
Norton J. Come: Yes, Your Honor. We have set forth at the Appendix to our brief the Board's regulations with respect to the settlement procedure.
Byron R. White: Does it indicate how old those regulations are?
Norton J. Come: Those regulations were promulgated many years ago. In general form, they were in the Act from right after the start of Taft-Hartley and, then about twenty-two years ago, they got amplified, but, essentially, this procedure has been a long-standing procedure that was worked out by the Board and the General Counsel right after the enactment of Taft-Hartley in an effort to make 3(d) mesh with the Board's adjudicatory procedures.
Antonin Scalia: That shows something of the ambivalence of the whole scheme, though, doesn't it? You said that the Board's regulations permit the Regional Director to dismiss the complaint before any action is taken, yet you told us earlier that the Regional Director was not the agent of the Board but the agent of the General Counsel. If that were purely the case, one would expect the General-Counsel to issue some regulations as to what his Regional Directors can do.
Norton J. Come: Well, for housekeeping purposes, Congress decided instead of setting up a separate administrator to put the General Counsel in the same agency as the Board, and the way these regulations work out or have worked out is that although they are issued in the name of the Board, those having to do with the operation of the General Counsel's phase of the administration are worked out jointly with the Board and the General Counsel. There is a joint committee that has worked on these regulations. What would happen if you got to a point where you couldn't have agreement is an interesting question, but that has not, fortunately, been the case. Now, what we have here is not a formal settlement, but an informal settlement that was worked out post-complaint.
William J. Brennan, Jr.: Where there's a formal settlement, any order of the Board is subject to judicial review, is it?
Norton J. Come: That is correct, Your Honor.
William J. Brennan, Jr.: And the question we have here is whether where there's an informal settlement, is it subject to judicial review.
Norton J. Come: Yes. Informal settlement.
William J. Brennan, Jr.: Do we have any other issue to decide in this case?
Norton J. Come: If, only if, you decide that it is subject to judicial review, would you have to reach the second question as to whether or not a charging party who objects at the settlement is entitled to an evidentiary hearing on its objections because that is what the 3rd Circuit held and the remand is for the Board to hold such an evidentiary hearing.
Sandra Day O'Connor: Mr. Come, if the case had proceeded far enough to have a hearing, at that point, is there any authority to settle the case and dismiss it on the part of the General Counsel alone?
Norton J. Come: The General Counsel cannot do that unilaterally. Once it goes to hearing, the adjudicatory process is invoked and the withdrawal of the complaint or any settlement agreement that's entered into would have to be with the approval of the administrative law judge and an appeal lies from that to the Board. So that what we're really talking about here is a very narrow time span, as it were. The period after issuance of the complaint and prior to the opening of the hearing.
William H. Rehnquist: What's the difference, Mr. Come, between a formal settlement and an informal settlement?
Norton J. Come: The difference is that a formal settlement leads to a Board order that is enforceable in the Court of Appeals, and so that if there is non-compliance with that order, the Board can either proceed to get it enforced on consent or, if there was a consent also to a court decree, move for contempt of the order. With respect to an informal settlement, the only consequence is that the prosecution of the case is stopped, and if there is compliance with the commitment, the case is closed on compliance. If it should subsequently it appear that there is not compliance, then the settlement is withdrawn and the General Counsel is free to resume the prosecution of the case.
Antonin Scalia: Suppose the General Counsel changes his mind after one of these informal settlements, there hasn't been any violation of the informal settlement by the party with whom it's made, but the General Counsel just decides it was a bad idea, would anything prevent him from going ahead to reinstitute the complaint?
Norton J. Come: No, I don't think so, Your Honor, because he acts in the public interest here and there's no estoppel, as it were, that would operate against him, but--
Antonin Scalia: Has it ever happened, to your knowledge, that without a violation of the informal consent agreement, the General Counsel just decides--
Norton J. Come: --I wouldn't say never, but if it's ever happened, it's so rare that--
Antonin Scalia: --You don't personally know that it's ever happened?
Norton J. Come: --No. I mean, these settlements play a very key role in the administration of the Act. The Board settles over ninety-two percent of its cases, and as the Attorney General's committee pointed out in its Seminole Study back in 1941, it's the life blood of the administrative process, and so that--
John Paul Stevens: Mr. Come, doesn't that ninety-two percent figure cover settlements pre-complaint?
Norton J. Come: --There's a substantial number pre-complaint.
John Paul Stevens: Are there very many of these post-complaint pre-hearing settlements?
Norton J. Come: Yes, there are. There are about thirty-five percent, according to the '83 statistics, that we have in our brief, of which most of those are post-complaint informal settlements. The reason for that is that the experience has shown that many times parties are not going to settle a case until you get them on the courthouse steps, and, so,--
John Paul Stevens: Let me ask one other question on the universe we're dealing with. How often in those settlements does the charging party seek review as they did here? Fairly rare, isn't it?
Norton J. Come: --We have not had many cases. However, that is not to say that if it were established by this Court that there is a right to review and that--
John Paul Stevens: Well, there's been a right to review in the 6th Circuit for twenty years without any cases, hasn't there?
Norton J. Come: --In the 3rd Circuit.
John Paul Stevens: 3rd Circuit, I mean.
Norton J. Come: In the 3rd Circuit.
John Paul Stevens: Twenty years, they had this rule, and nobody ever used it for twenty years, isn't that right?
Norton J. Come: But as I say, the potential would be there and human nature being what it is, it is not unreasonable to expect that if there were not only the right to review but also the right to Board review, as my brother here is urging, that a party for technical reasons would play out the string here, and this isn't just a labor versus management-kind of issue because the employer can be in the role of the objecting party as can the union, and experience has shown that in order to resolve most effectively labor-management disputes, the... it's better to get things resolved quickly and with some degree of certainty and that if you tack on review to an informal settlement, there would be a strong disincentive to settle because one of the reasons for settling is to avoid the cost and also the risk of litigation.
William J. Brennan, Jr.: Well, Mr. Come, in the ninety-two percent of the cases settled how many are... what proportion are informal and what proportion formal?
Norton J. Come: I would say that the vast majority are informal settlements and, of those,--
William J. Brennan, Jr.: When you say vast, is that half of the ninety-two percent or three-quarters or what?
Norton J. Come: --Well, in the 1983 statistics, which we have in our brief, the formal settlements were about six-tenths of a percent of the total number of settlements. So, the informals are really the bulk of the settlements. Of those, about sixty-five percent occur before complaint and you've got about thirty-five percent remainder.
William J. Brennan, Jr.: But in either event, neither is subject to judicial review, is it, pre or post?
Norton J. Come: That is correct, with the possible exception that an informal that is entered into after hearing, where you have to get the approval of the administrative law judge and the Board, those... there have been two such cases in the 7th Circuit and those have been reviewed.
William H. Rehnquist: But as between formal and informal settlements after complaint issues, what is roughly thirty-five percent of the total universe is informal, and.6 percent is formal?
Norton J. Come: The.6 percent... yes, that's about right, Your Honor. Those statistics are set forth in Table 7 of the 1983 Annual Report, which is cited in our brief. The most recent report that has been published, but, currently, the mix is not to dissimilar.
Antonin Scalia: Mr. Come, I don't understand what you just said. You said that some informal complaints do require the approval of the Board? Do you still consider it an informal complaint if it's entered after the hearing begins and requires the approval of the ALJ and also the approval of the Board? Do you still consider that an informal settlement?
Norton J. Come: Yes, because it hasn't resulted in a Board order in the conventional sense that--
Antonin Scalia: Why isn't the approval of the Board a Board order? That might well be a Board order as far as the Administrative Procedure Act is concerned.
Norton J. Come: --Well, I think that it is, and that's why we've... those have been reviewed.
Antonin Scalia: But you say it just doesn't result in any command by the Board, the violation of which you--
Norton J. Come: That is correct, Your Honor. I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Come. We'll hear now from you, Mr. Gold.
Laurence E. Gold: Mr. Chief Justice and may it please the Court: As Mr. Come has indicated, the issue here is the reviewability of the settlement that was made over the opposition of the Union which was the charging party, the Food and Commercial Workers Union. The same issue would be presented whether the charging party were a union or an employer. The system works the same way whomever has filed the charge. It's our view that what Congress intended in 1947 was to provide that settlements that are entered into post-complaint are to be presented to the Board itself and that the requirement is across-the-board whether or not the settlement is labelled informal or formal.
Sandra Day O'Connor: Well, Mr. Gold, the statute certainly doesn't expressly make that clear.
Laurence E. Gold: No. The--
Sandra Day O'Connor: Is this not a case where some difference to the interpretation of the statute by the agency is due?
Laurence E. Gold: --In this instance, Your Honor, we do think that the statute pushes very hard in the direction of the position we take and that this is what the understanding was at the time. It's very difficult to understand exactly how it is that the Board has come to the conclusion it has. Originally, right after the enactment of Taft-Hartley, the position we urged was the position that was followed by the Board. One year later, without any explanation, the Board changed its view and that--
Sandra Day O'Connor: It's been consistent since then?
Laurence E. Gold: --Yes, it has been consistent since then, but--
Sandra Day O'Connor: Well, do you think that's an unreasonable interpretation of this language of the statute?
Laurence E. Gold: --I think that it's an interpretation of the statute which cuts very deeply against the statutory provisions and, moreover, as the discussion thus far has indicated, it is an interpretation of a statute which has resulted in a number of lines being drawn, none of which seems to have much in the way of logic. First of all, there's a line between an informal settlement and a formal settlement, but an informal settlement is what the General Counsel says it is and the formal settlement is what the General Counsel says that is. Formal settlements do not necessarily create any enforceable rights in court. So, that's line number one, which this system creates. Line number two is that--
Antonin Scalia: Excuse me. Why do you... I didn't... I don't follow that. I thought that the General Counsel calls a formal settlement only something that results in a Board order in the sense of a command to the parties, and that he considers those Board orders that merely approve the dismissal of the complaint to be not formal settlements but informal settlements. It's a question of terminology, but I understand his use of terminology to be as I just described it.
Laurence E. Gold: --That isn't the way it works. There are really three kinds of settlements. They're informal settlements which the General Counsel enters into on his or her own hook. They're formal settlements that don't provide for court enforcement, which are presented to the Board, and it results in a Board order, and then--
Antonin Scalia: He calls them informal settlements, I think. They do not produce a Board order.
Laurence E. Gold: --They produce a Board order, it would seem to me, in the sense that under 10(f), it's certainly an order of the Board and nobody would protest that it's not reviewable. On the other hand, the order does not provide for court enforcement if there's back sliding--
Antonin Scalia: All right.
Laurence E. Gold: --by the Respondent.
Antonin Scalia: You call those formal settlements and you think he calls them that, too?
Laurence E. Gold: Yes. That is my understanding, but, at any rate, then there is another kind of settlement, a settlement in which the Board demands that you consent to court enforcement in a contempt-like action, as if you had been through the whole proceeding. And all I'm saying is that this system, which has grown like topsy, divides these up according, more or less, at least between informal settlement, kind number one, and informal settlement, kind number two, according to the General Counsel's whim. Next, there is the rule that if the matter goes to hearing, then there has to be the kind of presentment to the Board which we think Congress intended for all post-complaint cases. Thus, insofar as this is an administrative system which has grown up without much scrutiny, without much judicial consideration, and relatively little Board consideration, it was neither the original understanding nor is it an understanding--
William J. Brennan, Jr.: Mr. Gold, is anything judicially reviewable that does not involve a Board order?
Laurence E. Gold: --As we read 10(e) and 10(f), you need a Board order, but--
William J. Brennan, Jr.: Yes. Well, then, if that's so, in these informal settlements, is there any Board order?
Laurence E. Gold: --The language of the statute--
William J. Brennan, Jr.: No. Is there?
Laurence E. Gold: --We think so.
William J. Brennan, Jr.: And what is it?
Laurence E. Gold: The language of the statute says that orders of the Board are reviewable in court or at least certain kinds of orders of the Board are reviewable in court. It also says under Section 3(d) that the General Counsel acts on behalf of the Board. We don't believe, for example, if the General Counsel entered into something called a formal settlement and didn't use the right processes, we think that would be reviewable in court. We don't think that this kind of--
William J. Brennan, Jr.: Even though there exists no formal Board order?
Laurence E. Gold: --Yes. But a General Counsel order having all the substance of the Board order, we believe, is judicially reviewable under 10(e) and 10(f)--
Sandra Day O'Connor: Mr. Gold, if you were right in your interpretation, then, presumably, even an order withdrawing, deciding not to file a complaint in the first instance, would be a final order by the Board.
Laurence E. Gold: --No. I don't believe that.
Sandra Day O'Connor: I mean, I just think your logic would carry you to a very peculiar place.
Laurence E. Gold: Well, there--
Sandra Day O'Connor: For every action that the General Counsel takes is automatically a final order of the Board by your reading of the statute, then even his decision not to file a complaint would be reviewable.
Laurence E. Gold: --No, we don't think that that's what the statute says, Your Honor. If I could, Section 10(f) says that "any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any Circuit Court of Appeals. " The understanding of that language--
Sandra Day O'Connor: But if you apply the APA to this, under your reading, of Section 153(d), anything the General Counsel did becomes a final order of the Board.
Laurence E. Gold: --There's an exception in the APA for matters left to agency discretion. My point about 10(e) and 10(f) and the understanding pre-1947 as well as post-1947 is that the reference to a final order of the Board granting or denying in whole or in part the relief sought is the relief sought in the complaint, not the relief that the individual comes to the agency and asks to be embodied in a complaint. The request of somebody to have a complaint issued and the refusal to do so was not reviewable prior to 1947, and we don't believe that it's reviewable now. The language was the same in this instance pre-1947 and post-1947. So, we think that the logic of the statute, both before 1947 and after, is that there is a line that Congress drew. They're informal proceedings in which the individual comes to the agency, says I have a charge of a violation which has merit, please create a formal proceeding by issuing a complaint, and the situation after the complaint issues, in which there is a formal proceeding. We think that those formal proceedings, as is true in a variety of formal proceedings, were intended to be terminated only with the approval of the adjudicatory agency. In other words, we think that the filing of the complaint and we believe that this was Congress' understanding, clear understanding, that the filing of the complaint was like the filing of a complaint in court and answer after which you can only withdraw the case with judicial approval or the filing of a criminal case in court which reaches a certain procedure which, again, can only be settled or withdrawn with the approval of the tribunal.
John Paul Stevens: Mr. Gold, if you take the language of 10(f) literally, the review should be directly in the Court of Appeals.
Laurence E. Gold: Yes, and that is what we did here.
John Paul Stevens: And where then does the authority for the evidentiary hearing come?
Laurence E. Gold: Well, we had... we are making a procedural complaint. So, it is that we did not get the procedure we were due in the agency. I take it--
John Paul Stevens: So that your position... just so I'm clear, is it if a General Counsel dismisses a complaint and they say it's not reviewable before the Board, you say your remedy is to go directly to the Court of Appeals?
Laurence E. Gold: --Yes. We are saying that whether the General Counsel issues something called an order finding the Respondent in violation without going through the procedures and the Respondent says wait a minute and seeks review of that or whether the General Counsel goes the other way, that where there is a settlement issue, that the procedure we are due under the statute is a hearing on the settlement, if there isn't an amicable agreement, in this three-party--
John Paul Stevens: Hearing before whom?
Laurence E. Gold: --lawsuit... a hearing before an administrative law judge and the Board. In other words, that we--
John Paul Stevens: But you don't say that hearing is commanded by 10(f)?
Laurence E. Gold: --No, no. We're saying that that... the--
John Paul Stevens: What statutory provision commands that hearing?
Laurence E. Gold: --Right. Seems to us that 10(a) and 10(b) demand that. There's an internal system for handling complaints, and we're saying that part of that internal system within the agency for handling complaints is that once the complaint issues, the statute contemplates that the Board will determine what happens to the case and the Board has all the options as an agency that any other agency has or that a court has.
William H. Rehnquist: Well, supposing that's true, what issues are there in the evidentiary hearing that you say you have a right to? Is that just what the charging party wants to litigate?
Laurence E. Gold: Yes. It would be the... in our view, it is the same kind of hearing that a district court would conduct.
William H. Rehnquist: Well, a district court ordinarily doesn't conduct any hearing if the parties stipulate to a settlement.
Laurence E. Gold: But here one party doesn't. Obviously, if all the parties stipulate to the settlement, it's like a summary judgment case. The proposition that there has to be a hearing doesn't make any sense, but, here, a party, namely the charging party,--
William H. Rehnquist: The charging party.
Laurence E. Gold: --doesn't agree and that's why--
William H. Rehnquist: So, what, then, are the issues?
Laurence E. Gold: --The issues are it would seem to us the same kind of issues that a district court has to--
William H. Rehnquist: Okay. What are those issues?
Laurence E. Gold: --Whether it is fit and proper for the settlement to be entered into, whether it carries out the intent of the Act, whether there have been irregularities.
William H. Rehnquist: It's a review of the General Counsel's exercise of his discretion.
Laurence E. Gold: In the... the only reason I'm afraid of that statement, Chief Justice, is that it says you said "his discretion". We don't believe that in that regard he has a discretion, any more... that he has an unfettered discretion. Let me put it that way. Obviously, there is a discretion in that the General Counsel's view are going to weigh very heavily with the hearing, just the way the prosecutor's views or the plaintiff's views are going to weigh very heavily with the court.
John Paul Stevens: You said here one of the parties hasn't agreed to the settlement. Did the... the charging party isn't necessarily or automatically a party to the complaint hearing. Doesn't he have to give an order to intervene? What is this? See, I just don't... what is this?
Laurence E. Gold: Yes. The statute and the rules contemplate that the charging party is a party to the proceeding.
John Paul Stevens: Even without a special order of intervention?
Laurence E. Gold: Yes.
John Paul Stevens: He's automatically a party. I see. Mr. Gold, I'd like to ask a question. It relates to Justice Stevens' question earlier about whether this belongs in the district court or the Court of Appeals. You're reading 10(f), any person aggrieved by a final order of the Board, as meaning any order of the Board, any final order of the Board.
Laurence E. Gold: Any order finally disposing of a complaint.
Antonin Scalia: Finally disposing of a complaint.
Laurence E. Gold: Yes. In other words, we don't... prior to 1947, and correctly in our judgment, the actions of the agency when it was a unitary agency with regard to whether a complaint was issued, has never been regarded as reviewable. We think that the intent of 10(f) was correctly captured in those decisions.
Antonin Scalia: Well, I don't see that. That's sort of a middle ground. I can see how 10(f) might be read to mean any order whatever, which would produce a very strange result. You'd have review in the Court of Appeals where there's no record below. So, you would really want to use the usual district court review rather than the Court of Appeals. That's one extreme. It seems to me that the alternative to that is regarding 10(f) as referring to the order described in 10(c), which is very clear. It says in 10(c) that after a complaint's filed, if, upon the preponderance of the testimony, the Board shall be of the opinion that any person named has engaged or--
Laurence E. Gold: Yes.
Antonin Scalia: --is engaging in an unfair labor practice, the Board shall state its findings of fact and shall issue and shall cause to be served on such person an order in one direction or the other. That's the order, it seems to me, that 10(f) refers to. And that is not the kind of order at issue here.
Laurence E. Gold: It's partially the kind of order because you have... in part, it is that kind of order, and what we're... I guess what we're struggling with is what happens in this class of case. The defendant comes in and says I am prepared not to fight on issues 1, 2, 3 and 4, if you enter an order which doesn't carry any court consequence.
Antonin Scalia: But 10(c) only says an order requiring such person to cease and desist from such unfair labor practice. That's the kind of order it's referring to.
Laurence E. Gold: Well, the order--
Antonin Scalia: The whole section it entitled Prevention of Unfair Labor Practices. It sets forth the whole structure. In (c) it says what kind of an order the Board shall issue and then in (f) it says any person aggrieved by an order of the Board. It seems to me it's obviously referring to the same order that's described in (c).
Laurence E. Gold: --Well, in those terms, an order... there's more of 10(c). An order saying that there is no unfair labor practice wouldn't be reviewable, but, obviously, both 10(c) and the logic of the situation indicate that an order saying that there's a violation, an order saying that there's not a violation, are reviewable. Now, what about an order saying that the Respondent will consent to an order which doesn't carry a contempt sanction, saying that he will not do certain things which would be an unfair labor practice and the individual who brought the charge and who has a recognized status says that's not enough?
Antonin Scalia: It may be reviewable but not under 10(f).
Laurence E. Gold: Well, if we--
Antonin Scalia: If it's reviewable, it would be under the APA, which means it would go into district court, which is where it should be if there hasn't been any formal proceeding. You need a record to be made.
Laurence E. Gold: --Perhaps it's where it should be if you're fighting about the substance of the settlement, but if the claim is that the General Counsel has run around the procedure entirely, so... and has taken an action which is in reality an action which we believe is an action which can only be taken by the Board, it seemed to us that the logic of the situation was that kind of law question, when, as well, and ostensibly to the Court of Appeals. We argue, as an alternative, that the APA gives us a right to test this question of whether Congress intended that the Board must be given an opportunity to pass on these proposed settlements. If that argument is right, then it would lead to, at least in the future, a review in the district courts rather than under 10(f), and we certainly think for the reasons we give, that a total failure of an agency to follow the procedure contemplated in the statute ought to lead to APA review and that it's senseless to send us back to the district court--
Byron R. White: Mr. Gold, if the Government is right, I take it that the Board itself could not prohibit the General Counsel from entering into informal settlements.
Laurence E. Gold: --That's right. I mean, unless the Board... unless the Government's position here is that they can do whatever they want, it seems to me that where we actually are is that the General Counsel has the trump card. If he enters into--
Byron R. White: Why shouldn't that be the same trump card if the proceeding has started, if the hearing has started?
Laurence E. Gold: --That's what's a total mystery to us and it may be that if you rule for the Board here, the Board will greatly regret having joined hands with the General Counsel.
William H. Rehnquist: Mr. Gold, take the stage of the proceeding where the General Counsel issued a complaint but the charge party has issued no response. Now, you say a settlement even at that stage requires... you're entitled to a hearing and it is reviewable. Now, that's not like your district court proceeding at all, it seems to me. That's where the plaintiff has filed a complaint, the defendant hasn't filed an answer, and that's dismissable at the will of the plaintiff in the district court.
Laurence E. Gold: That is the rule in the district court, but our argument here is that the statute draws a different line. Obviously, it could draw that line,--
William H. Rehnquist: But you were arguing before that you had the same kind of hearing that a district court would have. I thought you meant that the proceedings were analogous; they're really not analogous.
Laurence E. Gold: --I'm saying that the issues to be presented to the tribunal in this kind of a three-party situation are analogous to the issues on whether or not to approve a settlement in a normal district court case brought by a plaintiff after answer in a class action case brought after the class is certified, which is very close, because that, too, is one where you have a representative rather than just one party on the plaintiff's side.
William H. Rehnquist: Those district court case examples have gone considerably further than just the filing of a complaint, which is all we have here.
Laurence E. Gold: That's true, but it is also true that the mere filing of a complaint is a less painstaking process than in a civil case than the filing of a complaint by this public agency after quite an elaborate system for trying to separate the wheat from the chaff. I want to take advantage of the rest of my time to emphasize the following point. In 1947, the general understanding, and, indeed, while there are quibbles from the Board, we think that the only possible understanding from the written materials was that the Board itself passed on settlements, post-complaint.
Byron R. White: Formal or informal or whatever?
Laurence E. Gold: Formal or informal or whatever, and that the overall thrust of the 1947 amendments were to provide a higher level of procedures, open procedures, by disinterested decision-makers and less staff determination than had been true prior to 1947. We believe it turns this statute absolutely upside down to say that one piece of Congress' effort to reach a higher due process stage in the adjudication of unfair labor practice cases, namely the creation of an independent General Counsel, worked without anybody saying so to limit the right of the charging party to get either an administrative law judge or, if you go to that point, the Board's determination, a more disinterested determination on whether the settlement really effectuates the policies of the Act and protects the interests of--
Byron R. White: Mr. Gold, the due process concerns that motivated Taft-Hartley weren't basically concerns about fairness to the charging party, were they?
Laurence E. Gold: --Oh, I think they were, Your Honor, because as the Court has remarked in other circumstances, what was sauce for the goose became sauce for the gander because Taft-Hartley for the first time created charging party rights in employers against unions, and Senator Taft and his colleagues were very solicitous of the rights and interests of that new class of charging parties. Certainly, there was nothing that anybody said or anything that was indicated which would cut back into that. The reason for creating the General Counsel was to keep the Board out of something that was considered not to be a proper adjudicatory function, namely the issuance of complaints, the determination to go forward, but it is a proper adjudicatory function as we've indicated and has always been understood to be such for the tribunal before whom the proceeding is pending at a certain stage to say whether or not a settlement should be accepted.
Byron R. White: You think they've just been making a mistake for thirty years, forty years?
Laurence E. Gold: It's been a mistake which--
Byron R. White: This whole--
Laurence E. Gold: --Well, first of all,--
Byron R. White: --practice has been going on for a long time.
Laurence E. Gold: --But without judicial approval. The D.C. Circuit and the 3rd Circuit have said this is wrong and the Board just has continued to chug along as if that hasn't happened. So, the situation is one because I don't think there are that many charging parties who relish the proposition of challenging their champion's determination, the situation is one in which there hasn't been sufficient motive, but as I say, before '47, what we're saying is Congress' intent was so far as everything shows the practice. From '47 to--
Antonin Scalia: Mr. Gold, that practice was a Board-created practice.
Laurence E. Gold: --Yes.
Antonin Scalia: And what you're arguing here is that somehow Congress intended to freeze that practice and the only thing you can point to as being a freezing of that practice is 10(f), right?
Laurence E. Gold: No. 10... I think that practice was one which the agency created but which was one which the statute has always intended because it seems to us that Section 10(b), which has always been there, contemplates that once the complaint issues, the matter will be determined by the Board.
Antonin Scalia: But what I'm saying is if I don't read 10(f) as applying to this kind of an order, the only thing that applies to this order is the Administrative Procedure Act, and there's no intent there to freeze the agency into a particular administrative scheme that existed in 1947.
Laurence E. Gold: I guess the way we view this case, Justice Scalia, that two aspects to the judicial review question. Aspect Number 1 is what did Congress intend with regard to the procedures within the agency, and then Question Number 2, which we think depends on the resolution of Question Number 1, is if the agency doesn't proceed in that way, does the party disadvantaged have a right to have a court say that you have followed an improper procedure.
William H. Rehnquist: Thank you, Mr. Gold. Your time has expired. Mr. Come, do you have anything in rebuttal? You have five minutes.
Norton J. Come: Just a couple of points, Your Honor. In the first place, Congress' basic intention in enacting 3(d) was to separate the Board's prosecutorial authority from its adjudicatory authority. At the time of the '47 amendments, the Board had delegated some of its prosecutorial authority, but it had retained some aspects of it. We submit it is clearly unreasonable to conclude that Congress intended to freeze the situation which would have left prosecutorial authority that the Board was continuing to exercise still with the Board. So, the point that Congress intended to freeze the situation pre '47 just doesn't stand up.
Byron R. White: Mr. Come, could the Board require informal settlements by the General Counsel to be reviewed by the Board?
Norton J. Come: Not, we believe, certainly prior to the issuance of the complaint, and--
Byron R. White: Well, what about in this very case?
Norton J. Come: --post-complaint, I think that the Board could not go back to the point of the issuance of the complaint without doing violence to 3(d) because 3(d) talks about the General Counsel's final authority, extending not only to the investigation of charges and the issuance of complaints, but with respect to the prosecution of such complaints before the Board. So, you have to allow some room post-complaint for the General Counsel's final authority to operate in.
Byron R. White: So, your answer is no, the Board could not require him to get the approval of the Board for informal settlements after the complaint is issued?
Norton J. Come: At least up until before the hearing opens.
Byron R. White: Well, what... why wouldn't that same rule apply to post-hearing while the hearing is going on? What if the General Counsel wants to settle?
Norton J. Come: Well,--
Byron R. White: I take it you agree then that the Board has to agree.
Norton J. Come: --no. At that point, I think that the adjudicatory process has commenced and that the Board as the adjudicator has the inherent authority of all adjudicatory bodies to regulate the order of proceedings once the adjudicatory phase has opened, and barring any restriction in the statute, which there is none here, the Board was reasonable in drawing the line at the opening of the hearing. Now, my last point is that with respect to--
Byron R. White: You mean the Board and the General Counsel was reasonable?
Norton J. Come: --That is correct, Your Honor.
Antonin Scalia: Just to settle terminology, do you consider that a formal settlement or an informal settlement, where all the Board approves is a dismissal of the complaint, no order from the Board?
Norton J. Come: I would regard that as an informal settlement. The formal settlement requires a Board order that requires a party to do something. Now, whether that order provides for enforcement by a Court of Appeals or not does not deprive it of being a formal settlement because since the order... the parties have consented to the order, the Board can go into the Court of Appeals and get automatic enforcement of that order because under 10(e) the respondent has waived his right to contest the order and we have done that. My last point is that we read 10(f) the way you have suggested. Judge Scalia, as the type of order that is referred to is a 10(c) order, and that is made even plainer when you look at 10(e), which is the provision for the Board--
Antonin Scalia: Your time--
Norton J. Come: --to go for enforcement.
William H. Rehnquist: --Mr. Come, your time has expired.
Norton J. Come: Right.
William H. Rehnquist: The case is submitted.