Warren E. Burger: The case is submitted. We'll hear arguments next in Stafford against Briggs. Mr. Brown, I think you may proceed when you're ready.
Peter Megargee Brown: Mr. Chief Justice, may it please the Court. This case, Stafford against Briggs, in tandem with Colby v. Driver, the next case to be heard, was argued here last April 24. And on May 4, this Court placed it on the calendar for reargument now. Very briefly, this is a case on writ of certiorari to review the judgment of the District of Columbia Circuit. Colby is on writ of certiorari to review the judgment of the First Circuit. In both cases, the same precise issue is presented. Did Congress intend, in enacting the Mandamus and Venue Act of 1962 to grant to the District Courts national -- nationwide personal jurisdiction over federal officials sued for money damages in their pocketbooks for acts allegedly performed under color of law. In other words, did Congress intend back in 1962 that federal officials can be sued not only, in essence, against the United States, administrative actions, judicial review of those involving the interests of the United States, but also, as respondents claimed, in essence against their own pocketbooks, in any court of the country, regardless of where the harried official works or lives a burden never before imposed on the citizenry? Did Congress intend this discrimination against federal employees? Now, Stafford against Briggs is a Bivens type action, civil rights tort alleging unconstitutional acts. All of the alleged acts took place in Florida. Plaintiffs chose to bring their suit in the District of Columbia, seeking $1.5 million from the private assets of four individuals who were, or are, federal employees. Plaintiffs' counsel acknowledged that this case was brought in the District of Columbia after shopping for the most favorable forum. Similarly, Mr. Wulf, in his oral argument on April 24, conceded that Rhode Island was selected because, “We did not think it was an inhospitable forum, as a matter of fact.” Who are the defendants in Stafford against Briggs? It would be helpful to put this in perspective. First is petitioner William Stafford, then United States Attorney for the Northern District of Florida, now a United States District Judge in the Northern District of Florida. Petitioner Carrouth, Assistant U.S. Attorney in the Northern District of Florida, now in private practice in Florida. Petitioner Meadow, a special agent of the FBI stationed in Florida, still working in Florida. So all of the petitioners have roots in Florida, they're not floating public officials. And --
Byron R. White: Mr. Brown?
Peter Megargee Brown: Yes?
Byron R. White: Has there been any development in the lower courts since the original argument?
Peter Megargee Brown: Yes, I understand that the case is proceeding against a non-petitioner named Guy Goodwin. He is a U.S. prosecutor in the Department of Justice, and I've been told on the telephone that there's been discovery in that -- in that case.
Byron R. White: Is that -- is that as far as the Goodwin case has progressed?
Peter Megargee Brown: Yes, Your Honor. I think it's important to know that nothing has been tried on the merits in Stafford against Briggs. Now --
Byron R. White: No, I'm speaking of the Goodwin case, Blackburn against Goodwin.
Peter Megargee Brown: Oh, in Blackburn against Goodwin, that's the same buffetted Goodwin, he's being sued up in New York. And he was --
Byron R. White: Has the Second Circuit ruled?
Peter Megargee Brown: The Second Circuit ruled on September 10. They decided to write after there was this reargument, and they held that 1391 (e), which is the second section of the Mandamus and Venue Act, did not apply to Bivens type actions, and that the actions, in order for the statute to apply, had to be, in essence, against the United States. And it's not in essence against the United States to sue Goodwin in his pocketbook.
Byron R. White: Does that case help your side or not?
Peter Megargee Brown: Your Honor, it's -- that panel came down with a decision which in an articulate and well presented way was the argument that I tried to make on April 24.
Byron R. White: But you haven't filed it in the supplemental brief?
Peter Megargee Brown: Yes, Your Honor. We did file one in this term, a supplemental brief, in which if you look at it you'll find that it's nothing more than making Exhibit A the opinion of the Second Circuit panel which was Smith, Mansfield and --
Byron R. White: I think its fine. I do have it.
Peter Megargee Brown: -- Mulligan.
Byron R. White: Yes.
Peter Megargee Brown: I might say a word about that, that the writer of the decision is -- was Dean of Fordham Law School. Just one second on who the plaintiffs are --
Byron R. White: He gets better credentials in being a judge in the Second Circuit Court of Appeals?
Peter Megargee Brown: Well, he has both. Plaintiffs are -- were anti-war demonstrators. They were called before a grand jury in Florida. None of these plaintiffs in Stafford below reside in the District of Columbia. They were indicted for conspiracy. Their case became known as the Gainesville Eight, and each was acquitted. Their complaint is that Goodwin somehow did a little dissembling before they went to the grand jury, even though they were acquitted, and that this violated their constitutional rights, and that therefore -- therefore Stafford and Carrouth and Meadow, who didn't say anything have to come to the District of Columbia under this Mandamus and Venue Act misuse and defend themselves for months and months and months, even though they're resident in Florida, and even though they could not under normal and regular procedures applicable to all citizens be sued in the District of Columbia. And I think it's significant that we're not here saying public officials cannot be sued for wrongful acts under color of law. We say that -- that they can be and in this particular case, the place to sue them is in Florida, and that's where the respondents concede. They could have sued all of them in Florida. So it's not a problem of multiplicity of suits, et cetera, et cetera. They can sue them in Florida. Now, the District of Columbia Circuit determined that notwithstanding that the second section of the Mandamus and Venue Act does give personal jurisdiction over these Florida residents and this is the question before this Court at this time. My argument is -- is a simple one. It's -- it's one point common to petitioners in this case and in the tandem Colby case. And that is that the statute involved here simply does not apply to respondent suits against federal officials' pocketbooks. It wasn't intended to do that. There is nothing in the purpose, the history, of the statute to show that that was so. Specifically, that section was not intended by Congress to supply jurisdiction and venue in tort suits and certainly not in -- in Bivens type actions which in 1962 were not heard of, and it was nine years later -- it was on June 21, 1971 that Mr. Justice Brennan's decision came down in Bivens, and it was -- it was a new law and new application. So that the basic reasons that -- that I believe that the First Circuit and the D.C. Circuit have made a mistake, and that the Second Circuit is correct is, (a) the purpose of the statute is a single-theme purpose, and it doesn't include suing people for a million and a half in their pocketbooks, public officials, or a billion dollars in Rhode Island where none of them have ever been -- against their pocketbooks in Rhode Island in Colby. And the history of the statute makes clear that it wasn't intended to -- to apply to pocketbook suits. And we also take the position that the language of the statute, that is the Mandamus and Venue Act of 1962, the statute at large, that read as a whole, as it must be, shows that this is a -- in the nature of mandamus suit, it involves in essence against the United States and it -- it doesn't involve Bivens type tort actions, pocketbook suits. So that, when the statute is read in its full context, with realization of its purpose, and in the light of its legislative history, it becomes clear that Congress did not direct or intend a coverage of the Bivens type actions. Now, in Blackburn, I would like to point out one thing about Blackburn internally. Mr. Justice Rehnquist's question about Mr. Goodwin. Mr. Goodwin resides in Washington, D.C. He's sued by -- by the civil rights bar in -- in the Southern District of New York in -- in Blackburn. He's also sued in another case there called Cole, and they treated them together. But he's sued twice, hit twice, like a shuttlecock, in New York. Now, the District Court made a holding, which was not appealed, that there wasn't the slightest evidence connecting Goodwin to a conspiracy as alleged in New York. No evidence, no threshold evidence therefore, the long arm statute, he held, goes out. However, the District Court Judge Haight found that 1391 (e) did give the jurisdiction. Now there's the abuse. Not the slightest evidence under the long arm statute, but ah-hah, 1391 (e), somehow or other, because perhaps of the climate of thinking today, can reach out and bring Goodwin in and make him go through motions to dismiss, discovery motions, and a -- and a harassed life. Now, it was -- it was that holding of the District Court on 1391 (e) that the panel reversed. We argued in March. They came down September 10 with their opinion which is Exhibit A. Now, I say that there are several things that show that pocketbook suits are not included by the intention of Congress in 1962. The first is that Section 1391 (e), which is found codified in the -- in the venue part of the -- of the federal rules that that isn't the whole statute. The respondents pretend that it is separate, distinct, and that it was intended to be separate and distinct, but it's not. You look at the bill, boom-boom, Section 1, Section 2. You look at the Act, Section 1, Section 2. You look at the -- the preferred sources, the -- the reports of the House, the reports of the Senate, and they say clearly, they're together, they're companion. One implements the other. They go together. The language of the second section reflects the language of the first section. The first section leads to the second section. As a matter of fact without the second section you -- you couldn't operate the first section. They go together like a horse and carriage. And this was the holding of -- of the -- of the Second Circuit, that it must be read together. And that wasn't the first time that a -- that a reputable court found that it had to be read together. Judge Friendly in Liberation News, in examining the history said, read it together. He said it, in haec verba, in -- in Natural Resources Council against TVA. He said it has to be read together. The Second Circuit has had some experience with the statute and has -- and has seen the efforts of certain advocates to -- to expand it to cover whatever situation arises. But I think it's important to note that it isn't just Judge Friendly in the Second Circuit that's examined this statute. It isn't Judge Mulligan that has examined this statute. Also examining this statute has been this Court. And at the same -- in the same year that this Court decided Bivens, and prior to that, this Court decided Schlanger against Seamans. And again there was -- that was a habeas corpus action. The locale was Arizona. The -- the young man seeking habeas corpus was in Arizona. The only problem was and it's stated quite clearly by this Court, Mr. Justice Douglas, the sole question in the case is whether the District Court for the district of Arizona had jurisdiction to entertain on the merits petitioner's application for a writ of habeas corpus. Now -- now, Mr. Justice Douglas said that it was -- unless the -- the custodian, the necessary party in other words, was -- was within the jurisdiction of Arizona. They -- they couldn't entertain the petition. All right. The -- the custodian was in Georgia. The -- the superior officers, also alleged necessary parties are in the District of Columbia. And -- and it was argued and Mr. Mel Wulf was a -- a friend of the Court, more a friend of the -- of Mr. Schlanger. They argued that -- that the -- if the normal jurisdiction would not stretch to cover the custodians on some kind of Strait against Laird notion that if it wouldn't stretch, then -- then use 1391 (e), and that's where the discovery was made that 1391 (e) is a -- is a pretty good idea to grab jurisdiction over -- over public officials. And -- and at that time, Mr. Justice Douglas held that the lack of jurisdiction was fatal, and that the 1391 (e) would not apply. Why wouldn't 1391 (e) apply? This Court, with the Chief Justice sitting, Black, Brennan, White, Marshall and Blackmun joined, Harlan, J., concurred in the result, Stewart, J., dissenting. With that opinion, Mr. Justice Douglas said that 1391 (a) was enacted to broaden the venue of civil actions which could previously have been brought only in the District of Columbia -- only have been brought in the District of Columbia. Now, the -- the Stafford case could not have been brought in the District of Columbia. Tort actions in 1962 and before could have been brought anywhere as they were not restricted. And that is a limitation on the -- the kind of cases that can be used. And it also shows that -- that 1391 (e), as a venue statute is not -- does not cover all civil actions.
Potter Stewart: Well, there's another very good explanation why 1391 (e) wasn't applicable in the Schlanger case and that is that 1391 (e) by its own terms provides this venue, as it says, except as otherwise provided by law. And in the habeas corpus, is limited by law to the venue of the custodial officer, isn't it?
Peter Megargee Brown: But -- but that isn't a -- it doesn't make the difference there because -- because the question is whether a government official, that would be the custodian, who was a government official, United States official, whether he could be -- he could be reached in -- in Georgia, or whether the Secretary of the Air Force could be reached in -- in Washington, D.C. And -- and it -- it found that it did not and that quotation of footnote 4 doesn't go to -- to exceptions. It -- it flatly states that -- that after looking at the history that -- that it doesn't apply to those suits that could not be brought in the District of Columbia and that is -- is significant. In fact, that is the recurrent theme going through the preferred sources, the -- the Senate Report and the House Report. I think that -- that if you look at the purpose of this legislation, you will see that it doesn't provide for pocketbook suits, whether they be for $1.5 million or $1 billion or $100,000. Take the House and Senate Reports, both state what the purpose is. +And I think everybody seems to jump over it but it's important. It says, the purpose of this bill -- bill -- is to make it possible to bring actions against government officials and agencies in U.S. District Courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue may now be brought only in the United States District Court for the District of Columbia. Now, I also want to call Your Honors attention in connection with purpose to the House Report that states unequivocally that the purpose of Section 1391 (e), that's the second section, that the purpose of 1391 (e) was, “Similar to that of” Section 1361, which is the first section. And then the report says -- and I think it's highly significant, and this is at the Colby petition 91A, that the new venue provision was and now I'm quoting, “Designed to permit an action which is essentially against the United States to be brought locally rather than requiring that it be brought in the District of Columbia simply because Washington is the official residence of the officer or agency sued.” Now, what we have here is respondents and the court below turning the statute upside down. Instead of using the statute to bring a suit locally, which could formerly have been brought only in Washington, D.C., respondents seek to bring an action in Washington, D.C., which could only have been brought locally.
Warren E. Burger: Ms. Peterson.
Doris Peterson: Mr. Chief Justice, and may it please the Court. This is a civil rights damage action for perjury and conspiracy to cover up and commit perjury. It is not merely that the petitioners and Mr. Goodwin are charged with dissembling.
Potter Stewart: Well, the merits of this case aren't before us at all, are they?
Doris Peterson: Pardon -- no --
Potter Stewart: The merits of this case aren't before us.
Doris Peterson: No, Mr. Justice Stewart, the merits are not before the Court at this time.
Warren E. Burger: For these purposes, it could be seven different kinds of an action, could it not?
Doris Peterson: I -- I'm sorry, Mr. Chief Justice?
Warren E. Burger: There could be seven other different kinds of actions for the purposes of the legal question that's here?
Doris Peterson: Yes. As this Court has already been told, the significant development in this case since the last argument was the opinion of the Second Circuit in the Blackburn case. Petitioners rely most heavily on that decision, but in a way, respondents rely upon it also. We rely upon it as making absolutely clear the importance of considering the entire legislative history, and not merely part of it in determining the scope of Section 1391 (e) for the only way the Second Circuit could have ruled as it did was by ignoring critical parts of the legislative history. That is the only way that one can -- one can conclude that Section 1391 (e) does not encompass damages. This Court is aware of the fact that three Deputy Attorney Generals and a Justice Department spokesman addressed the -- expressed themselves on the damage action issue. Three of them told Congress before the law was passed. And that Congress interacting with -- and responding to the Department selectively either adopted suggestions from the Department of Justice, changing the wording of one or the other of the statutes before it or rejected the Department's suggestion. The Justice Department was in repeated contact with Congress, trying to get Congress to exclude damage actions. What the representatives of the Department of Justice said and the Congressional reaction thereto is essential to a meaningful analysis of Congress' intent because their statements to Congress show that Congress was made fully aware of the damage issue while it was considering the proposed bill and that Congress was fully aware that the proposed bill covered damage actions. The Department of Justice tried to get Congress not to include damage actions. It told Congress how to avoid covering damage actions, what language to use to avoid damage actions.At least twice, Congress rejected the Department of Justice warnings about proposed language and employed language that clearly covered damage actions. Now we have the Second Circuit opinion, without a word, literally without a word about the communications from the three Deputy Attorney Generals. This is not applying legislative history, it is burying it. That is what the Second Circuit did and that is what petitioners would have this Court do. An interesting thing about the Second Circuit opinion is that it noted that the Department of Justice representative, Mr. MacGuineas had warned Congress at the hearings not to cover damage actions. He did indeed. But the Second Circuit fails to mention that after that warning, after Mr. MacGuineas told them that if they use the language under color of law they would be covering out-of-pocket suits. The bill was redrafted by the House committee and that exact language was inserted. We start with the statute which on its face covers our case. A civil action certainly includes a damage action. Reading Section 1391 (e) in terms of its legislative history does not mean reading the legislative history selectively to ignore all the portions of the legislative history which establish that Congress intended to cover damage actions. When it chose language for the statute that encompassed damage actions and which it had been told encompassed damage actions. The --
William H. Rehnquist: Ms. Peterson, you're of course defending the decision of the Court of Appeals for the District of Columbia Circuit. Did you think the First Circuit, which is -- is the next case, likewise read the statute literally on its face? Do you think the First Circuit and District of Columbia Circuit's decisions are exactly alike?
Doris Peterson: I -- I think that there are slight differences between them but I think that they both read the statute together with the legislative history. Of course, the First Circuit had the benefit of the hearings which the District of Columbia Circuit didn't have. Also, the First Circuit had the benefit of Mr. Katzenbach's memorandum which the District of Columbia Circuit didn't have because neither of them had been revealed until after the District of Columbia decision.
Warren E. Burger: I'm not quite clear when you said the D.C. Circuit did not have the benefit of them, can you tell us why?
Doris Peterson: Yes. Mr. Chief Justice, the -- at the time of the argument and the decision before the District of Columbia Circuit, no one knew of the availability of those hearings. The Justice Department presented them to the First Circuit about -- I believe it was about three weeks before the argument in the Driver case, now the Colby case. Also the Katzenbach memorandum was presented at that time. The Justice Department was then representing petitioners and they made a petition for rehearing to the D.C. Circuit in which they lodged with the Court the Katzenbach memorandum. They did not lodge the hearings. So the D.C. Circuit never saw those two documents.
William H. Rehnquist: But the First Circuit did exclude former officials and the face of the statute would include them, would it not?
Doris Peterson: Yes. We did not in this case have the issue of former officials. So that aspect --
William H. Rehnquist: I -- I realize that but --
Doris Peterson: Yes.
William H. Rehnquist: What I'm trying to suggest is that the First Circuit did not read the statute literally, like you say the District of Columbia should have and did.
Doris Peterson: They -- they excluded former officials, that's correct, and of course the Court did not grant cert on that issue.
Warren E. Burger: Doesn't that have some bearing on whether damage actions were included? What -- what was the Court's purpose in excising out, excluding, the former officials? Was it because there wasn't anything they could do in terms of mandamus-type relief or injunctive relief?
Doris Peterson: The former officials were excluded, I believe, because they felt that they were not included in the legislative history. But even a literal reading might exclude them because it says, is an official. And all of our people were officials at the time that we brought this action. Two of them have since transferred into other jobs. One is a United States District Judge. But they were officials. And it says --
Byron R. White: Was the present tense of the pivot on which the First Circuit excluded former officials?
Doris Peterson: Yes, it --
Potter Stewart: The present participle, acting.
Doris Peterson: Yes, at this point, the D.C. Circuit in another case has also excluded former officials. But it believes that --
Harry A. Blackmun: Well, it's a little unfair to -- to challenge you about the First Circuit, because you're not defending that --
Doris Peterson: Yes.
Harry A. Blackmun: I mean, you're defending the (Inaudible)
Doris Peterson: Oh, I'm sorry Mr. Justice Blackmun. I also have not worked on the issue of former officials and have not really thought through that issue because of the fact that the Court did not grant cert on the issue. If you want my opinion on that, I think former officials --
Harry A. Blackmun: No, the -- the significance of Mr. Justice Rehnquist's question was -- was literalism as applied to the statute --
Doris Peterson: Yes --
Harry A. Blackmun: -- by the two Circuits?
Doris Peterson: Yes, but the statute does say, "Is an official." Reading Section 1391 (e) in terms of its legislative history does not mean reading the legislative history selectively to ignore those portions of the legislative history that establish that Congress chose language for this statute that encompassed damage actions and which it had been told would not encompass damage actions. The Justice Department communications are vital to an understanding of the evolution of the law because they reveal that Congress was made aware of the damage actions and deliberately acted to cover such suits in the language it selected and in the language it rejected. Obviously --
Warren E. Burger: It could have eliminated that with just a few words, couldn't it?
Doris Peterson: Yes, it could have, Mr. Chief Justice. It could have said --
Warren E. Burger: Perhaps --
Doris Peterson: -- "except in damage actions. After it became aware of the problem it was --
Warren E. Burger: Well -- well, it cuts the other way, too. Congress could have made it expressly to include damage actions. It could have made it to include all types of actions, could it not?
Doris Peterson: Yes, but Congress chose words for that statute which are the same as the words Congress chose for 1391 (a) and (b) for example, which says, all civil actions. And all civil actions in those two statutes clearly encompasses damage action. And then when Congress got to 1361, it chose different language. It said, "In mandamus type actions." So Congress knew how to exclude damage actions if it wanted to. It knew how to draw a narrow statute. And it had warnings about the language, the warnings in the White letter, which made a suggestion as to what language to use that would exclude damage actions. And it's clear that -- that Congress did not select that language. It chose language that the Justice Department spokesperson had told them would cover out-of-pocket cases. Obviously, respondents are not relying on the Katzenbach memorandum standing alone. However, it was a culmination of --
Potter Stewart: The Katzenbach memorandum came after the statute was enacted, didn't it?
Doris Peterson: Yes, it did, Mr. Justice Stewart. It came shortly after --
Potter Stewart: Shortly afterwards, yes.
Doris Peterson: -- the statute was -- was enacted. But the Katzenbach memorandum is a culmination of the interaction of Congress and the Department of Justice over the legislation during a period of two and a half years. It was a final acknowledgement by the Department of Justice that it had failed to convince Congress not to cover damage actions and that a law had been passed which encompassed such actions. On page 2 -- this is the memorandum. On page 2 of the memorandum, we have the President's signing statement. This memorandum was sent to all the U.S. Attorneys around the country. It is divided into two sections. After setting forth what the statute -- the two statutes were that were passed and the signing statement. The first section deals with the question of Section 1361 and how it only applies to ministerial duties and does not apply to discretionary acts. Then starting on page 6, it deals with Section 1391 (e) and venue questions. And on page 7 is the acknowledgement that 1391 (e) covers suits for damages against federal officials out-of-their-pocket suit. They were talking in this memorandum about libel and slander suits because that's the kind of suit that Congress was concerned about. That's the kind of suits that were being talked about at the hearings. And that's the kind of suits that were available at that time.
Potter Stewart: The -- in this case, do the plaintiffs live in the District of Columbia?
Doris Peterson: None of the plaintiffs live in the District of Columbia.
Potter Stewart: So under what -- which criterion of the statute was this suit brought?
Doris Peterson: Where a defendant lives. Defendant Goodwin lives in the District of --
Potter Stewart: A defendant in the action?
Doris Peterson: A defendant, yes.
Potter Stewart: I see, (Voice Overlap).
Doris Peterson: And in response to Mr. Justice Blackmun's earlier question, the case against defendant Goodwin is proceeding in the District of Columbia. Depositions and discoveries has been done in that case in both the District of Columbia and in Florida and the -- the case is nearing trial. That is a --
Potter Stewart: The statute was amended in 1976, was it not?
Doris Peterson: Yes.
Potter Stewart: Most importantly to provide for service upon additional persons but also -- and I'm reading now from the First Circuit opinion in the Driver against Helms case, "each" was changed to "a".
Doris Peterson: Yes.
Potter Stewart: Which "each", do you remember?
Doris Peterson: It used to read that each defendant was a federal officer. And some courts had interpreted that to mean that if you had non-federal officials as defendants, you couldn't use the statute. And it was amended so that you could have non-federal officials as defendants, but you could use the special service provisions to get jurisdiction over the non-federal official.
Potter Stewart: So it's the first line of the first sentence of the statute that was amended?
Doris Peterson: Yes.
Potter Stewart: A civil action in which each defendant is an officer, was changed to, a civil action in which a defendant is an officer?Is that correct?
Doris Peterson: That's correct.
Potter Stewart: In 1976.
Doris Peterson: And then there was the -- the provision about how you serve --
Potter Stewart: And then -- then they added provisions?
Doris Peterson: Yes.
Potter Stewart: Yes.
Doris Peterson: It's interesting because at the time of that amendment three different statutes were amended. The -- Congress was not dealing with only one statute. They were dealing with a variety of statutes. And it shows how the legislative history of more than one statute can be dealt with in one report. And it's done here. The legislative history of 1361 and 1391 are dealt with in the same three reports, two from the House and one from the Senate. But it is possible to go through and find the themes of the difference between when they were talking about mandamus-type actions which overlap both statutes and when they were talking about damage actions which dealt with only 1391 (e). And there was legislative history on both. And what the petitioners are trying to get us to do is to read 1391 (e) as if it is encompassed by 1361, as if 1361 is referred to in the statute. The Congress had a variety of purposes. And when Mr. Brown read to you some of their purposes, he read them inserting -- without actually saying it, as if Congress was saying, only for this purpose. But the "only" was not in there. Right before the law was passed, Senator Mansfield put the Senate Report into the Congressional Record and he talked about the purposes of this bill. And one of the purposes is damage action. The paragraph about damage action against officials is in all three reports.
Potter Stewart: The -- Judge Mulligan's opinion in the Second Circuit used -- inserted the word "only," too, didn't it?
Doris Peterson: Yes, he did. But it was not in the material --
Potter Stewart: Yes.
Doris Peterson: -- that he was inserting it from. It's the way you have to read it --
Potter Stewart: Yes.
Doris Peterson: -- in order to exclude damage actions.
Byron R. White: Ms. Peterson, looking at the intent of Congress in 1961 or whenever it was, doesn't the fact that the original bill included the word "each," and therefore contained the requirement that all defendants be government officials, lend some support to the notion that they were primarily thinking in terms of actions which are in substance against the government? A damage action would be more likely to be one that could have multiple defendants, some private, some public, wouldn't it?
Doris Peterson: I think what they -- they were thinking -- I don't think that they really thought through the problem of third-party defendants because that would go against all the discussion that was before them about the damage actions. And what they were trying to do is encompass into one suit all the various complaints that citizens might have because of -- of the misworkings of government. They were -- this was a --
Byron R. White: Well, they talk about the two different kinds of damage actions that I remember. And one is the postman who goes home at night and gets into an automobile accident and they clearly don't want to include that and that's not under the -- under the color of law. And the other is the libel and slander. And in that context there would be at least a -- a greater likelihood of -- of private defendants being involved if you have, you know, say a libel slander that's republished and so forth, you could have multiple defendants. But they didn't include the multiple defendants, which is sort of strange to me.
Doris Peterson: I found no evidence in the legislative history that that problem was ever brought to their attention. And I think maybe if at the time of the legislation --
Byron R. White: It really is not a great deal of discussion of private damages. There is reference to it, you're right. But the -- there really isn't much discussion of -- of this precise problem as I -- that I can find. There is discussion of the fact of a damage action and -- and those two examples that I found but do they discuss any other examples other than --
Doris Peterson: Yes. There are about five crucial examples which I can run through for you very briefly. One, there was a letter from Deputy Attorney General Walsh --
Byron R. White: No, I mean any other kinds of damage actions other than the postman case and the libel or slander case.
Doris Peterson: I think it was a libel and slander type case that they were primarily concerned with because Barr v. Matteo --
Byron R. White: Right and --
Doris Peterson: -- had recently come down and they were concerned with where the line was going to be drawn.
Byron R. White: And Katzenbach says --
Doris Peterson: You could bring those cases --
Byron R. White: -- we defend these on the grounds of immunity or --
Doris Peterson: Yes.
Byron R. White: -- something, right. But they don't discuss any other kinds of -- of damage of actions other than those two that -- that I noticed. Now maybe I -- I'm just really inquiring as to whether I've missed anything on that.
Doris Peterson: No, I think all the concentration at that time was on the libel and the slander actions.
William H. Rehnquist: Ms. Peterson, you --
Doris Peterson: Though --
William H. Rehnquist: Ms. Peter -- you mentioned a moment ago in response to a question from Justice Stevens a letter from Deputy Attorney General Walsh. And you've also relied in your briefs on a letter from Deputy Attorney General White and -- and you've referred to I think a letter, a comment from Deputy Attorney General Katzenbach. Did this bill have its genesis over a period of years? Because I take it the three Deputy Attorney Generals weren't all in office at the same time.
Doris Peterson: No, that's correct. It was first introduced in 1958, and no action was taken on it. Then it was reintroduced in 1960 and they had the House hearings on it. Finally it -- the -- then it was redrafted after the warning and with the language, and passed in that form by the House. Then it was essentially the Senate who solicited the comments from then Deputy Attorney General White who had replaced Mr. Walsh. And he sent in his comments at that point the -- a few months later, the Senate amended it on the basis of Mr. White's comments. And by that point, Deputy Attorney General Katzenbach was in office and he wrote two letters to the House managers with his comments on it. His comments were only addressed to 1361. And then it was passed in 1962.
Potter Stewart: And then Deputy Attorney General Katzenbach wrote that memorandum to the district attorneys, right?
Doris Peterson: Yes. And in -- in between, a few days after he wrote to the floor managers of the House, he wrote to the President suggesting that the President issue the signing statement.
Potter Stewart: Right.
Doris Peterson: And as we now know, he sent him the very statement that the -- the President actually issued.
Potter Stewart: And then he did after -- after the statute was enacted sent another memorandum?
Doris Peterson: Yes. Then he sent a memorandum to all U.S. Attorneys. And the sequence of this shows the last communication we had from the Department of Justice about the damage issue is in the White letter, in which he tells them how to avoid damage actions and they do not follow his advice but leaves the statute broad. Then, as Deputy Attorney General Katzenbach got involved, it was clear that the problem that the Department of Justice was concerned about was a problem which had been raised in Mr. White's letter to them which was the -- the problem where Mr. White talked about the potential constitutional problem of separation of powers. It was of -- of great moment to the Department of Justice, this separation of powers problem, because they were talking about the exercise of discretion, and courts telling federal officials how to exercise their discretion. And this is in connection with 1361.
William H. Rehnquist: Mrs. Peterson, particularly since this is reargument and we aren't talking just about two or three sentences, I -- I know it can be repetitious, let -- let me ask you about the -- the first line of the first sentence of (e) with regard to the Defendant Stafford. And if "(e)" reads a civil action in which each defendant is an officer or employee of the United States or any agency thereof, acting in his official capacity or under color of legal authority. Now, Mr. Stafford's -- the grievance you have against Stafford is when he was U.S. Attorney, is it not?
Doris Peterson: That's correct.
William H. Rehnquist: Now, when you sued him, was he U.S. Attorney or a United -- a U.S. District Judge?
Doris Peterson: No, Mr. Justice Rehnquist, he was U.S. Attorney at the time. All of the defendants at the time that we sued them were still acting as officers of the United States.
William H. Rehnquist: In the capacity -- in -- in which they had been acting at the time that you claimed they violated your rights?
Doris Peterson: Yes, all the petitioners were still in that capacity. I want to very briefly run through the five steps in the legislative process which we feel are crucial to an understanding that damage actions were covered. First, there was a letter from Deputy Attorney General Walsh, which brought the damage action issue to the attention of Congress. He didn't --
Potter Stewart: That -- that was the previous Congress, wasn't it?
Doris Peterson: Yes.
Potter Stewart: Yes.
Doris Peterson: That was the --
Potter Stewart: It was not the Congress that enacted this legislation?
Doris Peterson: It was in 1960. At -- that letter was in the hands of the House Judiciary Committee when it had its hearing. And he referred to the existence of damage actions. He didn't talk about what kind of damage actions, I don't know if he was talking about libel and slander. He -- it appeared that he was talking about more than -- different types of damage actions than just libel and slander but he didn't specify but he said that there were damage actions against federal officials for acts beyond the scope of their authority. Then we had the transcripts of the hearings in which damage actions are talked about. We have Mr. MacGuineas telling them not to use "under color of law" because that will be out-of-the-pocket. Then we have the House Committee redrafting the bill, putting in the language. And we also at that time, the House Committee did a report and talked about the problem and suits against the federal officials seeking damages from them, not from the government, but from them. And that paragraph is included in all the reports. Then we have the letter from Deputy Attorney General White, suggesting the language that they should use alternative language that would avoid damage actions. And finally, after the law is passed, we have the Katzenbach memorandum acknowledging that damage actions are covered.
William H. Rehnquist: Could you have sued Stafford under this -- in this district after he became a district judge given the merits of your -- given the contents of your allegations on the merits?
Doris Peterson: Could we sue him in the District of Columbia?
William H. Rehnquist: Yes.
Doris Peterson: Not under the -- I don't believe under the present interpretation of the law by the District of Columbia that we could.
William H. Rehnquist: Because he's a former --
Doris Peterson: Because -- then he would be a former official.
William H. Rehnquist: Although he's a present official. He's certainly an officer of the United States. He's a United States District Judge.
Doris Peterson: But he was not -- would -- would no longer be occupying the same office. But --
William H. Rehnquist: The statute --
Doris Peterson: That -- that issue --
William H. Rehnquist: -- doesn't say occupy the same office.
Doris Peterson: I believe that that is one of the issues that the Court didn't grant cert on or was a hole left open in the Driver case. And we haven't had that issue in our case, but perhaps Mr. Wulf can address it. Our position is that there isn't any inconsistency in the legislative history between the two lines of legislative history. In many respects, they are dealing with the two separate statutes, claims of confusion, meaninglessness, inconsistency, or whatever adjective is used, come up only when one tries to brush off the legislative history about damage actions and ignore the fact that Congress was dealing with two separate issues and two separate statutes at the same time.
Warren E. Burger: Do you have anything further, Mr. Brown?
Peter Megargee Brown: May I, Your Honor, just a moment. The answer the Mr. Justice Rehnquist's question to Ms. Peterson is no, it could not bring before 1962 an action of -- of this kind.
Warren E. Burger: Another factor, if he'd been promoted from Deputy Attorney General to Attorney General, what could be the situation? He was sued -- if a suit was originally for actions as Deputy Attorney General, and later he'd been promoted, would that be the same as going over to a district judgeship for these purposes?
Peter Megargee Brown: Well, if the question is before 1962, before 1962 actions -- actions in the nature -- in the nature of mandamus would have to be brought in the District of Columbia. If the action was a pocketbook case, a tort action, it would be brought locally
William H. Rehnquist: But I mean -- I mean after 1962.
Peter Megargee Brown: After 1962, you cannot reach the -- the petitioners in -- om the District of Columbia, you cannot except if this Court upholds the D.C. Circuit.
William H. Rehnquist: But if you read the language literally and uphold the D.C.Circuit, you can reach someone who has been promoted to an entirely different federal office.
Peter Megargee Brown: You could arguably come to such a conclusion.I would just like to point out that -- that Ms. Peterson talks about unpreferred sources. Unpreferred sources -- what -- what the Department of Justice may have said or may not have said, they're not -- they're not legislators. And what -- what Katzenbach said afterwards, if he did say it, if he did write that memorandum, if he did sign it, I see no signature. I don't know who wrote the Katzenbach memorandum after the -- the legislation was enacted. These -- these are unpreferred sources. The -- the real source is -- is the latest report, the Senate Report. If Ms. Peterson had -- had looked at the Senate Report, she would see and -- that on page 2785, which is also sometimes said to be page 1, purpose is written out. And it says, "The purpose of this bill, as amended, is to make possible to bring actions against government officials and agencies in the United States District Courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue, may now be brought only in the United States District Court for the District of Columbia.” Nothing else That is the purpose of the bill and of the statute. And -- and her suit does not come within that purpose. She also does not read to you from a preferred source where the Senate Report is important because it came out just before the enactment, just a matter of weeks before the enactment. And it says, “The bill, as amended.” And I want to point out that it was amended many times and it goes back to the gestation period of five years. And this is the latest preferred source. It says, “The bill, as amended, is intended to facilitate review by the federal courts of administrative actions.” Now, what has the -- the Bivens-type action of these petitioners, none of whom live in the District of Columbia, and are trying to bring some -- some people up from -- from Florida to sue them in their pocketbooks for a million point five, what does that have to do with an administrative action? If it honestly and truly is an administrative action, it is in essence against the United States and they may not dip in those petitioners' pockets for their second mortgage and their tuition savings bank account. I mean, they have to make up their mind. This is a -- this is an administrative review of Mandamus and Venue Act and nothing more. And the effort to extend it to pocketbook suits is -- is an effort to put federal employees in a -- in a special disadvantaged class. It's to discriminate against them as you discriminate against nobody else in the United States. Pick out the federal employees and you say to them, "You can be sued in Nome. You can be sued in Maine. You can be sued anytime any plaintiff wants to sue you. And you have to go there. You have to bring your witnesses there. You have to bring your documents there. And if you're totally innocent, assuming, you will have two years of the worst years of your life." And not only that but you're sued in a multiplicity of suits, Colby, a resident of Maryland, sued in Washington, D.C., New York, Rhode Island. Kipperman v. McCone in -- in California, he's sued. All on the same fact situation, mail opening. This is what happens, buffeted around. Goodwin, you mentioned him. Goodwin, sued in New York, sued in -- in Washington, D.C. Now, the White letter -- the White letter, Ms. Peterson told this Court, left the statute broad after he wrote it. That's not so. The -- he said, it should be in the nature of mandamus to be limited. After that, it was amended. It was amended to be in the nature of mandamus.
Warren E. Burger: I think your --
Peter Megargee Brown: Under color of law --
Warren E. Burger: I think your --
Peter Megargee Brown: -- if you read the --
Warren E. Burger: I think your time has expired --
Peter Megargee Brown: Thank you, Your Honor.
Warren E. Burger: -- Mr. Brown. Thank you. The case is submitted.


Warren E. Burger: We will hear arguments next in Boston Firefighters against Castro, Beecher, and all. Mr. Barnico, I think you may proceed whenever you are ready.
Thomas A. Barnico: Thank you. Mr. Chief Justice, and may it please the Court: The Commonwealth of Massachusetts appears here today seeking reversal of orders entered by the United States District Court for the District of Massachusetts on August 7, 1981. We thus seek the same result as the Union Petitioners in these cases. To accomplish that result, however, we bring a different appeal and different arguments before the Court. We appeal from the unjustified suspension of a Massachusetts law that requires that layoffs in public safety positions be made in reverse order of seniority. After briefly stating these cases, it is my intention to argue that the District Court abused its discretion by suspending that law where no previous orders or decrees entered in these cases concerned layoffs and where entry of the orders contradicted principles of federalism that govern the exercise of the federal equity power. The orders at issues were entered in on-going cases with long judicial histories and state-wide application. Ten years ago the District Courts in these cases entered judgments and found that state examination procedures for police and fire positions unintentionally, and I repeat, unintentionally violated the rights of the plaintiffs. Remedial orders were entered. Those orders required a new examination and also required preferential certification of minorities to local cities and towns. As a result of the preferential certifications, the percentage of minorities in Massachusetts city and town police and fired forces increased substantially.
William H. Rehnquist: Mr. Barnico, were those original orders entered of indefinite duration?
Thomas A. Barnico: The orders that were entered in August of 1981, Your Honor, or the--
William H. Rehnquist: No, the original... sometime in the '70's. I don't know when it was.
Thomas A. Barnico: --The subsequent decrees entered shortly after those original findings to provide for the remedial phase of the cases applied to the cities and towns until the percentages of minorities reach a percentage commensurate with the percentage in the community.
William H. Rehnquist: And, has that percentage yet been reached?
Thomas A. Barnico: Not in Boston, Your Honor, but in many communities, yes.
William H. Rehnquist: So, as far as Boston is concerned, the decree entered in the '70's still has considerable prospective effect?
Thomas A. Barnico: Yes, Your Honor. In the summer of 1981, Boston proposed layoffs in its police and fire departments. The District Court granted what plaintiffs styled a motion to modify prior remedial orders.
Sandra Day O'Connor: Should the order that we are reviewing here today, having to do with the layoffs, be interpreted as having a permanent effect in your view?
Thomas A. Barnico: Our view... That is correct, Your Honor. Our view is by its terms it has permanent application. That order of August 7, 1981 directed city and state officials to ignore the provisions of the state seniority statute, never challenged and never at issue--
William J. Brennan, Jr.: Hasn't there been some recent legislation requiring the reinstatement of all those firemen and policemen who were laid off?
Thomas A. Barnico: --Yes, Your Honor, that legislation was passed in June of 1982.
William J. Brennan, Jr.: Well, then, what kind of case have we got here?
Thomas A. Barnico: You have a live case here, Your Honor.
William J. Brennan, Jr.: How?
Thomas A. Barnico: These cases--
William J. Brennan, Jr.: Everyone who was aggrieved has now been reinstated, hasn't he?
Thomas A. Barnico: --The state is aggrieved and--
William J. Brennan, Jr.: Everyone who has been aggrieved, every fireman and police officer has been reinstated, has he not?
Thomas A. Barnico: --The firefighters and police officers laid off in the summer of 1981 were reinstated by the terms of that legislation, that is correct.
William J. Brennan, Jr.: I ask you again then, what kind of a case do we have here? Do we have any?
Thomas A. Barnico: We have a live case here, Your Honor, because the state defendants have been parties to this case for over ten years, are still subject to the outstanding terms of those orders.
Warren E. Burger: Do you mean on back pay?
Thomas A. Barnico: Excuse me?
Warren E. Burger: Do you mean by reason of back pay that is paid to these people?
Thomas A. Barnico: No, Your Honor. Mr. McMahon could speak to the permanent effect of the orders on those back-pay claims. Since I represent the state defendants, I rely on the outstanding effect of the orders on the state officials.
Byron R. White: What orders are you talking about, reinstatement and seniority or what? What orders are you talking about?
Thomas A. Barnico: The orders of August 7, 1981, by their terms apply to any program for reduction in force. They also apply currently to the administrative appeals brought by the terminated officers that are now pending before the Civil Service Commission. In addition, Your Honor, we have a third argument and that is simply that these cases continue in the District Court. We are still subject to the underlying judgments of these cases. And, when we return from this case, the cases that I mentioned before live with on-going--
Byron R. White: The parties have had to comply with the reduction-in-force orders.
Thomas A. Barnico: --I am not sure what you mean by that.
Byron R. White: Well, the issue in the case was how were they going to discharge people when they reduced force?
Thomas A. Barnico: That is correct. Boston proposed layoffs and the issue was whether the seniority statute of Massachusetts should govern the layoffs last time and--
Byron R. White: And the orders were that they wouldn't govern them.
Thomas A. Barnico: --The orders said that the statute would be ignored and percentages... any program of reduction in force should be maintained.
Byron R. White: And the police and fire department have been complying with those?
Thomas A. Barnico: That is correct, Your Honor.
Byron R. White: And they must continue to comply--
Thomas A. Barnico: Absolutely.
Byron R. White: --Unless the orders are set aside?
Thomas A. Barnico: That is correct, Your Honor.
William J. Brennan, Jr.: Well, I don't follow that. If the officers, whether firemen or policemen, affected have, by the latest legislation, been ordered reinstated and have, in fact, been reinstated, what do the authorities have to comply with? They are reinstated now.
Thomas A. Barnico: As I said, Your Honor, there is a current effect on the Civil Service Commission's adjudication of their appeals.
William J. Brennan, Jr.: Well, what is left of their appeals? Their appeals don't concern reinstatement, do they? They are trying to get back pay.
Thomas A. Barnico: That is right.
Byron R. White: And seniority. Seniority. Those issues are not here in this case. But, they are not moot, are they?
Thomas A. Barnico: Back pay is not an issue in this case, no, Your Honor.
John Paul Stevens: But neither is seniority. There is a controversy, I take it, that goes on under the decree.
Thomas A. Barnico: The controversy continues for those reasons that I gave earlier. That is our position.
John Paul Stevens: And the reinstatement included too with full seniority, isn't it? Everybody who was discharged has been reinstated with full seniority, is that not right?
Thomas A. Barnico: No, Your Honor.
John Paul Stevens: Oh, isn't it?
Thomas A. Barnico: Your Honor, these cases--
William J. Brennan, Jr.: Well, if not, what? The reinstatement is with what seniority?
Thomas A. Barnico: --Seniority only to the time of determination. I think Mr. McMahon could--
William J. Brennan, Jr.: You don't seem to be too sure of that.
Thomas A. Barnico: --Well, Mr. McMahon, I think, could clarify that position, but the back pay issue still remains so that when Justice Stevens suggested that all issues were taken care by the reinstatement, I add that the back pay question still remains.
John Paul Stevens: I assume, since you represent the state, your denying that they are entitled to back pay and he contends they are entitled to back pay.
Thomas A. Barnico: The state is an adjudicator actually, Your Honor.
John Paul Stevens: Oh, I see.
Thomas A. Barnico: The Commission will decide whether the city will actually pay the back pay. These cases pose important--
William H. Rehnquist: The city under the... or rather the Civil Service Commission under the modification of 1981 is subject to an express paragraph, is it not, of the modification limiting the authority of the Civil Service Commission?
Thomas A. Barnico: --Yes, Your Honor, and that continuing effect keeps this case alive before this Court.
Sandra Day O'Connor: The respondents contended, and some copy of a Civil Service Commission decision is attached, to indicated that our decision here will have no effect on the back pay and that is being resolved on different grounds.
Thomas A. Barnico: But, currently, Your Honor, the Civil Service Commission is prevented from even considering the question of seniority in the back pay and termination appeals. We are asking, as the state adjudicator, to be free from an order which currently prohibits us from making an inquiry that we are bound to make under the state law.
William J. Brennan, Jr.: Yes, but Mr. Barnico, if we were to conclude that the case is moot because of these reinstatements, I take it we would vacate all those orders, wouldn't we?
Thomas A. Barnico: But, you would have to conclude that there is no continuing and permanent effect on the state petitioners before you vacate these orders, vacate this case and instruct to dismiss. You can only invoke Munsingwear procedure so-called once you determine that there is no current and no permanent effect on the state officials. And, we argue, of course, that there is.
William H. Rehnquist: Well, I take it we would have to vacate the entire decree if it is moot, wouldn't we?
Thomas A. Barnico: Absolutely.
William H. Rehnquist: Including the 1970 portion.
Thomas A. Barnico: And that procedure that has been used in the past has often been used to vacate the underlying judgments with instructions to dismiss which is far different than here. In this case, you will not hear plaintiffs' respondents ask the Court to vacate the underlying judgments because those continue and they have orders which effect examinations and certifications in the future. My time is expiring but my case is not, I assure you. [Laughter] Previous school desegregation and employment discrimination cases decided by this Court have required states to address particular instances of racial discrimination. In these cases, implementation of a neutral testing device and the hiring preferences created in the system redress specific wrongs and vindicated entitlements. That entitlement, however, didn't constitute a predicate to the most recent orders which extended the remedy. The District Court ignored fundamental and affirmative limitations on the judicial power. The District Court ordered and the First Circuit Court of Appeals approved a decree that transcended all previous orders that were ever entered in these cases and suspended a valid state law. In closing, we acknowledge the competing interests that are pitted and the important questions that are posed by these cases. The District Court Judge heard argument from these interests. He weighed these issues. Out of sheer exasperation, I think, at one point in the oral argument of the case, he looked at the parties below him and commented that no party had asked him to retain the best policemen or the best firemen. But, faced with those issues, he was not free to impose his own view of who should be retained. He was bound by this Court's previous determination limiting the scope of the equity power to violations previously found. He was bound by Congress' express protection of bona fide seniority systems and he was bound by principles of federalism that prohibited him from suspending a state law never challenged and never at issue in these cases. He ignored those rules and his orders must, therefore, be reversed. If there are no further questions, I conclude here. Thank you.
Warren E. Burger: Mr. McMahon?
John Mc Mahon: Thank you, Mr. Chief Justice. May it please the Court: Before proceeding to my view of the issue, if I could respond to some of the questions that had been posed with respect to the seniority remedy. In effect, upon reinstatement, because the officers had been laid off for fiscal reasons, they did regain all their seniority back to date of permanent appointment. In that case, the seniority issue, in terms of relief that they are presently seeking before the state agency, dropped out of the case. There is a very serious back pay issue that is involved and it is one which the Civil Service Commission is asked to rule upon. As long as the District Court's August 7, 1981 order does exist, the Civil Service Commission cannot rule upon that order. I would submit to you as a matter of equities as to who should bear the particular loss, the City of Boston or the laid-off officers if, in fact, the seniority suppression was not valid, that should be an issue left best to the Civil Service Commission of Massachusetts. There are a variety of Civil Service appeals which have come up, including a police officer, superior officer's appeal, which, I believe, Justice O'Connor referenced in her question and that order, if I recall it, was based on the fact that the City of Boston had used a political manipulation to lay off a small number of police officers in another group not represented by the union before you today. In effect, I think the Civil Service Commission was stating that they found that there was a political discrimination involved in that order. I have not looked at it and I apologize if I have not quoted it correctly, but my recollection is that it was based on a different series of proofs than would be involved in this case. If I could return to my argument, the unions submit that the issue before you is whether a federal court in an employment discrimination case can grant increased, competitive job security to junior minority firefighters who were not, who were not victims of past acts of discrimination by suppressing a bona fide seniority statute requiring seniority layoffs to the detriment of senior non-minority firefighters who were then terminated. I would submit that this judicial override should be reversed on statutory grounds. If the statutory grounds are not persuasive, this judicial override should fail for reasons found in the equal protection component of the Fifth Amendment. May I note that under current law there are no constitutional violations that are present on the record before you. Certainly Washington v. Davis has now established that in order to have a Fourteenth Amendment violation there would have to be purposeful, deliberate discrimination shown. That is not the case before you. The plaintiffs... I am sorry, the respondents made no challenge either to Section 39, the Massachusetts Seniority Statute, or to layoffs by its terms. They made no further assertion of any new civil rights violation. I would submit to you that in framing relief the District Court cannot disregard the congressional policies enacted in Section 703(h) of Title VII, protecting and conserving earned seniority rights. I submit to you that that statute extends an immunity to routine applications of seniority systems irrespective of disparate impacts.
William H. Rehnquist: Mr. McMahon, what is your theory on how 703(h) gets into this case since the action wasn't brought under Title VII?
John Mc Mahon: Your Honor, there were two actions. In the police case, the police decision had been adjudicated prior to the effective date of Title VII's application to municipalities and local governments. In the firefighter case, the plaintiffs', private plaintiffs' complaint originally asserted only violations of the Fourteenth Amendment in Sections 1981 and 1983. That complaint was filed in November of 1972. The United States filed a complaint repeating those same grounds and asserting a Title VII ground in February of 1973. The focus in both complaints was upon examinations conducted no later than August 1971 and on recruitment techniques. It may be that one could argue that there was never a Title VII violation ever present in these cases. However, I have to note that the record would also show that in April of 1972 a Boston eligibility list was established from the August 1971 exam and some 86 non-minority firefighter appointments were made prior to the filing of the plaintiffs' complaint. Thereafter, the state agencies voluntarily ceased using that list so that there may be a Title VII connection in that respect, but the parties never focused on it in litigation and the theories in both cases, as they were stated by the District Court, were on the Fourteenth Amendment and on the Constitution, not Title VII. But, even if there is a constitutional basis to this case, I would conclude that the Section 1988 of 42 US Code would require a District Court to shape relief in an employment case based on constitutional grounds according to other federal law. Such other federal law should be Section 703(h). You are really redressing, in the constitutional sense, individually violations and only individual rights can be violated. I think then that you would use the same sort of constructive seniority approach that this Court has approved in Franks and approved again in Teamsters and has commented on several times, most recently in Ford Motor Company and in Zipes, in order to extend rightful place relief. So, even under the Constitution or Title VII, I think you come to the same result, Your Honor. In this case, the District Court did establish four priority pools. The first priority pool, the Group A, consisted of all persons who took the August 1971 or earlier examination and failed. The second pool, with which we are concerned, is the Group C. That consisted of all non-minority persons who could not qualify for admission into Groups A but who had passed a new examination. I would submit that those persons who were Group C were not victims of any discrimination, any act of discrimination, and that the conferral of a random benefit upon them without establishing any victim identification was not only inconsistent with this Court's decision in Teamsters, but, indeed, it bears upon the claim that the disadvantaged senior firefighters have that their rights were invaded by the order in the sense that they lost an equal protection component that the possessed. May I add that the particular order benefit only persons who were not victims of racial discrimination or identified as victims of racial discrimination; that a use of a racial classification should only be approved, if it ever can be approved, when it is used as a remedy for a person who is a victim of past identified discrimination. In this case, that surely was not the use. Instead, and I think both the District Court and the Court of Appeals' opinions reflect this fact. At the August 30... I am sorry, the July 30, 1981 hearing before the District Court, and if I could paraphrase the District Court, they said that the only issue before the house is an issue of numbers, whether we were going to keep a certain number, whether we were going to decrease a certain number or whether we were going to increase a certain number. We heard arguments on all the other issues. That was the focus. It was on percentages. Again, the Court of Appeals' opinion states that the purpose of the orders was to maintain a semblance of racial balance. I would submit to you that a purpose in that direction is constitutionally invalid. Finally, I would ask the Court to look again at the impact of the orders in terms of any constitutional justification for the orders. The impact wasn't dispersed among some amorphous population. It fell on 83 non-minority firefighters, 96 non-minority police officers. And, if I can go outside the record for a moment, it actually fell on 123 non-minority firefighters, yet they are indistinguishable in terms of advantage of obtaining that employment, in terms of the risks in the kind of employment in which they were involved. They are indistinguishable from the beneficiaries of those orders save in two respects. The disadvantage individuals did not share a preferred racial characteristic and they were senior. I have concluded. Thank you very much.
Warren E. Burger: Mr. Dittmar?
James S. Dittmar: Mr. Chief Justice, and may it please the Court: Because the Court voiced almost with one voice a concern about mootness, I would like to address that issue briefly. It is a threshold issue. As the suggestion of mootness, which we incorporated in our brief in the merits, indicates we view this case to be moot. A Massachusetts' Act of 1982, Chapter 190 which was passed approximately one month after the Court of Appeals affirmed the District Court decision, mandates that all officers in both departments who were discharged during the reduction-in-force program in 1981 be rehired. It also, modifying what would otherwise be standard principles of Civil Service law, specifies that all of these individuals who were laid off and then rehired have lifetime job security from layoffs for lack of funds or reduction-in-force programs. In addition, the City of Boston has begun rehiring additional officers over the last approximately nine months under mandates also coming from that same statute to raise and maintain levels of staffing in the two departments.
Warren E. Burger: You said "rehiring". Do you mean--
James S. Dittmar: Additional hiring. I did misspeak. The case, we believe, is moot.
Warren E. Burger: --While you are there, what did they do about the back pay of these men who were laid off?
James S. Dittmar: The back pay is now, to my understanding, in some instances pending before the Civil Service Commission. The pendency of that claim, however, does not make this controversy before this Court still a live controversy. The parties to that back-pay claim are not before this Court. Indeed, on our side of defense in this Court we have no complaint whatsoever whether the officers receive back pay.
William H. Rehnquist: Mr. Dittmar, wouldn't you say that the state could represent the Civil Service Commissioners?
James S. Dittmar: The state could represent the Civil Service Commissioners but they sit as an adjudicator party.
William H. Rehnquist: But, they are subject to paragraph four of Judge Caffrey's decree, are they not?
James S. Dittmar: Paragraph four of Judge Caffrey's decree has, for all intents and purposes, has expired, because there are no longer any terminations or layoffs with which the Civil Service officials could in any way interfere by any action that they take. Moreover, Your Honor, this Court nor the lower court on any remand following any action on the merits can issue no relief that has any bearing upon that back-pay claim.
Byron R. White: But, what if this judgment is reversed, that that level of force order is invalidated? Wouldn't the Civil Service Commission have... In short, the layoffs were invalid. Wouldn't the Civil Service Commission have a pretty tough time denying back pay?
James S. Dittmar: I don't see how the Civil Service Commission could deny a back-pay claim because an order which was valid and not reversed nor vacated at the time it was in effect is subsequently reversed on appeal. I believe, if anything in terms of alleviating what might be perceived as a hinderance on the part of the Civil Service Commission, a vacation for mootness grants them greater freedom, because that vacates the order.
William H. Rehnquist: Mr. Dittmar, do you know of any case similar to this where there has been an underlying controversy that is the subject of a basic decree and then there is a modification of the decree and we have simply said, well, this branch of the case is moot but the underlying controversy isn't?
James S. Dittmar: I don't believe so, Your Honor. I don't believe--
William H. Rehnquist: You ask Mr. Carpenter.
James S. Dittmar: --I believe all of the cases in which a corollary... Excuse me, Your Honor.
William H. Rehnquist: Allow me to finish my question.
James S. Dittmar: Sure.
William H. Rehnquist: You are really asking us to go into kind of a new departure, aren't you, where the basic underlying case is not moot, to simply prune off a little branch of it and say, because it is moot, the whole thing is vacated?
James S. Dittmar: No, quite the contrary. The basic underlying controversy is moot and my brethren are asking to have you... because they say there is a little branch off to the side that is still alive keeps the underlying controversy alive.
William H. Rehnquist: Yes, but the underlying controversy is whether there should be a minority quota requirement in the Boston policy and fire systems, isn't there?
James S. Dittmar: That has been resolved by the statute.
William H. Rehnquist: Well, that has been resolved by the District Court decree in the '70's.
James S. Dittmar: Well, as between... I am sorry, in the '70's, no, not in the '70's.
William H. Rehnquist: Well, when was the original decree entered?
James S. Dittmar: The original decrees, the original decrees were in the early '70's, that is true, but those decrees terminate by their own terms once any hiring authority achieves a percentage representation of firefighters or police officers.
William H. Rehnquist: Opposing counsel said that that decree had not terminated so far as the City of Boston was concerned.
James S. Dittmar: That is correct, but that decree is not before this Court. None of the parties to this proceeding have challenged any of the original decrees.
William H. Rehnquist: If that is a live controversy, any modification of it is a live controversy isn't it?
James S. Dittmar: No, I don't believe so, Your Honor. The only controversy that is here before this Court is whether the modification was proper. The fact that there is an underlying lawsuit with on-going remedial measures in place which are not being challenged, stays in place, doesn't make the order which has brought us all before the Court here a live controversy.
William H. Rehnquist: Well, but, we decide mootness in terms of cases or controversies, not in terms of orders.
James S. Dittmar: You decide it in terms of... That is true. There is... The Court has... The lower court has continuing jurisdiction over this case, but the order, as to which certiorari was granted coming up to this Court, does no longer represent a live controversy. That issue, the relief that is sought, the controversy, the challenges to that relief, the arguments in support of that relief are not longer live. All of the officers have been rehired and they have all been given permanent civil service job security by virtue of statute.
Sandra Day O'Connor: But, according to the petitioners, it is a permanent order and any future action by the city or those governed by the order will have to be taken in conformity with it.
James S. Dittmar: I disagree with that. I understand that that is their contention. I believe on the face of the order, Your Honor, it is plainly not a permanent order. It was argued for an entered to address a specific reduction-in-force program that took place in the summer of 1981. If it were, indeed, a permanent order ordering that the City of Boston maintains specific racial percentages indefinitely, and in that sense, permanent as is now contended, it surely would have been challenged on the merits as a matter of substantive and remedial law in the lower court and in the Court of Appeals under the teachings of this Court in the Swann, Charlotte, Mecklenberg case and under the teaching of this Court in the Pasadena Board of Education-Spangler case and it was never raised. There was never any attack on the invalidity of the order as a matter of substantive law, because it set a permanent racial quota, a permanent racial maintenance level, until that issue was raised to defeat the suggestion of mootness in this Court. And, if you look at the terms of the order, the language, any reduction-in-force program is plainly in there in order to avoid any problems of evasion by the manner in which in the summer of 1981 on the factual record before the Court be programmed or structured in a way that would avoid the prohibition of the District Court's order.
Byron R. White: Was the legislation ordering reinstatement consistent with the Court's order?
James S. Dittmar: The legislation ordering reinstatement had nothing to do with the Court's order except that it followed the Court's order.
Byron R. White: I just ask you again, was it consistent with it?
James S. Dittmar: Was it consistent with the Court's order?
Byron R. White: Yes. Was it consistent with the order to maintain a particular racial balance in the forces?
James S. Dittmar: It lead to the same... It lead to a consistent result, that is true, in the sense that--
Byron R. White: Well, it ordered reinstatement of the very people that the Court thought should have been laid off.
James S. Dittmar: --No, no. The Court simply ordered that during the reduction-in-force program the level of minority representation obtained at the outset of that program be maintained. The city went ahead with a reduction-in-force program, laid off a certain number of minority and a certain number of non-minority officers and then completed its program. Then, the legislature specified that everyone who had been laid off should be rehired and that additional staffing minimums be maintained and that would simply bring the level of officers back to where they were before we all started plus a little bit more.
Byron R. White: And the same ratio?
James S. Dittmar: I don't know whether it is in the same ratio, Your Honor.
Byron R. White: That was my question.
James S. Dittmar: I can't answer your question as--
Byron R. White: That is all I needed to know. Thank you.
James S. Dittmar: --I would like to turn to the merits of the case.
John Paul Stevens: May I ask just one question to be sure I understand?
James S. Dittmar: Yes, Your Honor.
John Paul Stevens: Is it your position that you would be just as content to have the District Judge's order of August 7, 1981 vacated?
James S. Dittmar: Well, I suppose having put the suggestion of mootness into the brief, I would have to say, yes, we are just as content.
John Paul Stevens: I just wanted to be sure.
James S. Dittmar: I think that is a matter of responsibility to the Court in laying out the full dimensions of the present circumstances to the Court.
William J. Brennan, Jr.: Well, you made the suggestion contemplating that if the suggestion were favorably received that is exactly what would happen.
James S. Dittmar: That is correct, Your Honor.
William J. Brennan, Jr.: But, no more stripping down, just that one order?
James S. Dittmar: Just that one order, that is correct. And, I believe--
Byron R. White: And, the rest of the case remains alive?
James S. Dittmar: --The rest of the case remains alive, that is correct. I believe Justice Rehnquist's suggestion or illusion to... in any kind of vacation in the event of a determination by this Court of mootness, that that vacation would effect to any prior orders. I don't think that is properly before the Court now. The only thing that is before the Court is the challenge by the certiorari petitioners to the relief embodied in the August 7, 1981 order. Indeed, all parties to this case expressly, expressly disclaimed any challenge either to the original judgment or to the remedial measures that were in place prior to August of 1981.
John Paul Stevens: Do you think it would have been improper in the original decree for the District Judge to have included provisions dealing with the contingency of possible reductions in force?
James S. Dittmar: Well, Your Honor, I don't believe that it would have been beyond the Court's power to do so, but I believe that it would not have been a sound exercise in discretion.
John Paul Stevens: Why wouldn't he have power today to keep in effect a portion of the decree which would deal with that contingency even if we can't see it immediately before us?
James S. Dittmar: Because I think that in exercising discretion for remedial purposes to remedy the exclusion of minorities from public service a court should be very careful to consider the actual circumstances obtaining before it, to consider what extent of relief has been accorded under the on-going remedial program which is incomplete, how far along the remedy is, the extent of the imposition or the frustration of the remedy, which an otherwise proposed governmental action would work, the burden that any particular order would place upon third-party employees, and factors of that sort. I don't believe that that kind of set of considerations ought to be considered in the abstract and ought to be laid down in advance. Those ought to be taken as the case proceeds in precisely the fashion in which the District Court... Chief Judge Caffrey of the District Court did in this particular case.
Warren E. Burger: If the case if not moot, now you are going to address the merits of the case, are you?
James S. Dittmar: If the case is not moot, I would like to address the merits, yes, Your Honor. The order that is under review on the merits is an order that arises out of a case in which, through the operation of Massachusetts Civil Service practices, minorities had been unconstitutionally excluded historically from the police and fire departments of the City of Boston. The District Court in both of these cases in the early 1970's adjudicated that minorities had been unconstitutionally excluded from these two departments. A remedial program was put in place in order to correct the effects, the condition of exclusion which these past practices have brought about. The city and the state Civil Service officials were bound to participate in that remedial program. It was an order of the Court to remedy this condition which the discrimination had accomplished and ultimately they entered into consent orders with respect to both of the cases. The program was on-going when, in the summer of 1981, the City of Boston proposed and started implementing a program such that in six weeks approximately one-half of all Black and Hispanic firemen in the City of Boston and one-half of all Black and Hispanic police officers were going to be laid off. Another way of putting it is approximately one-half of all of the officers in both departments who had been hired under the remedial phase yet to be completed ordered by the Court were going to be laid off. The Court's order came in that context and the Court's order said you may not reduce the present percentage representation levels if you pursue this reduction-in-force program which has been placed before me with statistics indicating its scope and impact. I believe the order was proper and the issue before the Court on the merits is whether the District Court had the power to issue such an order to maintain and protect and promote the original purposes of its remedial orders going back to the original adjudications of liability and whether, in this particular instance on the matters and record before the Court, there was a sound and proper exercise of discretion. I believe the answer to both questions is the Court had its power, had the power and the Court properly exercised discretion. My starting point is that having adjudicated discriminatory exclusion of minorities from a public governmental agency, in this case public services agencies, the Court has the power to remedy the effects, the exclusion that the past practices has brought about.
Byron R. White: Could I ask you what seniority did the Blacks have or the minorities have when they were hired pursuant to the Court's order? Did they just start out from scratch?
James S. Dittmar: They started out from scratch, Your Honor.
Byron R. White: So, they didn't... There was no attempt made to jump them over anybody else?
James S. Dittmar: Two things, Your Honor. One, there was no attempt made to jump them up over anyone else with a kind of rightful place, retroactive seniority that the Court has spoken about in several cases. And, equally significant, no attempt was made to identify, to give notice to or bring before the Court and adjudicate who they were out there who had been deterred by years and years of exclusion of minorities.
Byron R. White: So, at the time... So, when the layoffs started, the minorities that had been hired were certainly junior to a lot of other people?
James S. Dittmar: That is correct.
Byron R. White: And junior to a lot of people who were then discharged pursuant to the order?
James S. Dittmar: That is correct, Your Honor. That is correct. It was a proper form of relief, however, in large part because what we had had in the past is we had had the exclusion of minorities from the police and fire departments and the original remedies, the original remedies were the predicate for the modification. The original remedies had been themselves a flexible compromise between the interests of those who had been discriminated against, those who were also already in these various forces and who would be jumped over at the time, and the interests of the municipal authorities in managing, as much as possible in the ordinary fashion, their hiring and operations of their departments. When the layoffs came in 1981, however, because there had been no wholesale attempt to locate and give a remedy to all of the victims of discrimination originally or even to give a full rightful place, retroactive seniority remedy to those who were clearly identified at the outset, the Court once again, I believe, used flexibility to--
William H. Rehnquist: When you say "clearly identified at the outset", what do you mean?
James S. Dittmar: --That would have been individuals who had taken and passed discriminatory examinations and who could be counted... whose noses could be counted so to speak. But, this Court--
William H. Rehnquist: But, if they took and passed the examination--
James S. Dittmar: --Took and failed the examination. Did I misspeak? I am sorry, Your Honor. Took and failed the old examinations. The unions--
Byron R. White: --But, you were making the argument on behalf of those that didn't, too.
James S. Dittmar: --What I am arguing for, Your Honor, is flexibility for the District Court in fashioning remedies to remedy the effects of long-standing exclusion of racial minorities from government service.
Byron R. White: And, you make that argument on behalf of all those who were hired, but whom you can't prove or you don't allege were themselves ever discriminated against.
James S. Dittmar: No, no, no, no. Many who were hired were discriminated against, many who never got hired--
Byron R. White: Yes.
James S. Dittmar: --themselves were victims of discrimination.
Byron R. White: I am just saying there are a lot of people who were hired pursuant to the Court's order that were never discriminated against themselves.
James S. Dittmar: During the remedial phase--
Byron R. White: I don't suppose there would be much of a case here if you could show that all of these people were in that category of people who could have been given rightful place seniority when they were hired.
James S. Dittmar: --If what Your Honor is saying is that there was an element of the original remedial measures was an affirmative action type of order, that is the case.
Byron R. White: Yes, all right.
James S. Dittmar: That is the case. That is not now before the Court, but that is, indeed, an accurate description of the original orders.
William H. Rehnquist: Well, it is certainly before the Court in the sense that when we get to the merits of reviewing the District Court's injunction against firing. It might make some difference as to whether the District Court acted properly if all of the hirees under the minority program had, in fact, been discriminated against or if some of the hirees had never been the victims of discrimination. If that weren't the case, I doubt there would be a case here.
James S. Dittmar: Except that there is a great deal of complexity in this. For example--
William H. Rehnquist: Well, I think... I know as much about the complexity on that particular issue, I think, as I need to know.
James S. Dittmar: --One of the issues here is that everyone who ultimately was hired had to take civil service examinations and these civil service examinations were never validated ever. And, in fact, given the results over the years, even since the original decrees, of those examinations under EEOC standards, they would be prima facie invalid exams. In a sense, almost every minority applicant and ultimately hiree during the course of remediation here has been a victim of the same type of discrimination that prompted this litigation at the outset. But, the point that I would like to make is confronted back in the early 1970's with governmental practices which had resulted in an exclusion, a dramatic, virtually wholesale exclusion of minorities from public service, public safety forces and then confronted with an effort in 1981 to go back a great half step of the whole step that had been taken, what was the proper extent of the power of the federal court to effect a remedy? And, I believe the proper extent is defined by a number of the opinions of the Justices of this Court indicating that race conscious, affirmative, if you will, remedies, without requiring nose counting proof of individual victimization, are appropriate where there has been an adjudication by a competent tribunal looking at the specific situation which is going to be affected by the remedial measure that there has been unconstitutional discrimination and that we have here. We have it in the original findings of this Court. The Court chose at the outset a remedial measure designed not to leap over everyone who was already there and give the minorities who had been discriminated against their rightful place, not even to go out and find all of the minorities who had been excluded, but to work some balance and that balance was an affirmative action program. And, I suggest that is an appropriate balance for a court to strike in issuing a remedial or designing a remedial program. And, that program was in effect for a number of years. It was on-going. The parties were committed to it. Then, in 1981, the City of Boston, one of the parties to that program, backed out and said one-half of everyone who has been hired we are going to lay off in six weeks. And, the Court at that time took what I believe was another flexible step to preserve the remedial program which was incomplete and to promote the original objectives. It didn't advance the interests of Blacks and Hispanics over whites in absolute numbers. It didn't prohibit any layoffs of minorities. The burden of the layoff program which was instituted by the City of Boston fell on minorities as well as on white officers. The Court did not take away from the City of Boston or the state civil service officials for that matter their powers and prerogatives to make the decisions that they felt were appropriate. The Court did not... The City of Boston, by the way, and its Police Commissioner and its Fire Commissioner did not oppose the relief that we sought in the District Court, did not participate in the appeal even and are obviously not before this Court today. There was no trammeling of the interests of local government in managing its own affairs. The program was a balanced program to the extent to which the Court's order addressed the operation of a civil service system. In fact, it provided that that system should be preserved as much as possible. The Court's order specifically provided that any individuals who were laid off in accordance with the prohibitory terms of the order during the course of that program the representation levels be maintained and even those individuals who were laid off, they should get restored to service with full seniority as of the time they were laid off. And, indeed, that is exactly what happened.
William H. Rehnquist: What was the reason for paragraph four of Judge Caffrey's order where it says in the event that a police officer's appeal of his termination to the members of the Civil Service Commission challenges the method of termination set forth herein. The members of the Civil Service Commission are restrained and enjoined from disapproving, invalidating, or interfering with the termination on that basis?
James S. Dittmar: The purpose of that provision, Your Honor, was to insure that as a matter of state civil service law, if there was compliance by the city with the order, the Civil Service Commission would not overturn that in such a fashion as to require the layoffs of minorities in contravention of the Court's order. The Court's order was simply... has as it essence only one provision and that was that during that program, and only during that program, minority percentages be maintained. The other provisions of the order were designed to insure that that not be sabotaged, that is all. And, for that matter, Your Honor, that provision, in my opinion, has no continuing validity, no continuing vitality, I am sorry, I should say. Now, one other point that is raised by the unions is that the burden of the Court's order falls on third parties. That is true. I believe this Court's orders have clearly established that where the highest national priority of remedying race discrimination, and in this case we have virtually, as I have said, exclusion of minorities from the police and fire departments of the City of Boston. It is appropriate for third parties to share that burden. It didn't fall all on them as I have pointed out. Minorities were laid off and the Court was careful to preserve as much as possible the provisions of the state civil service seniority scheme of things in the event of the very kind of thing which happened which was the political solution to these problems which was frustrated until the day after the District Court order came down was ultimately lifted and a resolution was found. Seniority expectations after all are not vested rights. In Massachusetts they are defeasible at any time by will of the legislature. We don't have involved here collective bargaining agreements which is the fruit of collective bargaining efforts or organized labor. We don't have an interference with national policies favoring collective bargaining arrangements. In short, the extent of burden that the order places on others is within the permissible scope of the District Court and the District Court took care not to step any further than it had to. I would like to just conclude by pointing out that the efforts in this country through legal measures to eradicate several hundreds years of race discrimination are not many years old, barely 25 years, and one of the hallmarks of what this Court has done by way of giving direction to the lower courts is to vest the lower courts with flexibility to deal with the very difficult circumstances, practical, political, and economic, that they face. I believe that the District Court and the Court of Appeals in this case exercised that kind of flexibility wisely and I urge the Court to affirm and not deprive the lower courts of the needed flexibility to meet this pressing national challenge. Thank you.
Warren E. Burger: Mr. Barnico, do you have anything further?
Thomas A. Barnico: No. Thank you, Your Honor.
Warren E. Burger: Thank you, gentlemen, the case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.