Warren E. Burger: We'll hear arguments next in 73-1285, John P. Wood against Strickland and others. Mr. Smith, you may proceed whenever you're ready.
G. Ross Smith: Mr. Chief Justice and may it please the Court. This case is here on certiorari to the United States Court of Appeals for the Eighth Circuit and involves a disciplinary sanction imposed against three 10th Grade female public school students for violating a school board regulation prohibiting the possession or use of intoxicating beverages at school or at a school sponsored function. The petitioners are members of the Board of Education of the Mena Special School District of Polk County, Arkansas. Petitioners submit that the basic issue is whether the Court of Appeals properly reversed directed verdicts for the school board defendants in a public school student suit under 42 U.S.C., Section 1983 on the grounds that the school board had misconstrued and misapplied its own regulation and that the application of that regulation to these students deprived them of Fourteenth Amendment substantive due process. Petitioners' contention that there's nothing in this record to warrant the exercise of federal jurisdiction in that respondents have shown the deprivation of no federally protected right. For reasons which I hope to discuss later, we submit that the issue of procedural due process is not properly before the Court in this case and would call the Court's attention to the fact that the amicus brief submitted on behalf of the respondents deals only with the procedural due process issue and does not reach the substantive due process question. The basic facts are uncontroverted. Early on the school day on February 7, 1972, three female students, two of them are respondents here, devised a plan to leave the school premises to purchase an alcoholic beverage which they intended to put into the refreshments to be served later that day at a joint parent-student function to be held on school premises, this function was sponsored by the Home Economics Department. Since the school district is situated in a county in Arkansas which has exercised its local option and has loaded “dry,” sale of alcoholic beverages in the county is unlawful. The respondents drove out of the county, across the state line into the state of Oklahoma where they purchased at a tavern a quantity of malt liquor beverage. Returning to Mena, they then purchased non-alcoholic beverage with which they mixed the malt liquor, returned to school and completed their plan. Several days later, their teacher learned of this incident and confronted the girls with her information. After first denying that they had been engaged in this conduct, they later admitted their involvement. The matter was then brought to the attention of the principal and he advised them that he would invoke a one-week suspension until such time as the Board of Education had opportunity to deal with the question and that it was their ultimate responsibility. That evening, the board did meet to consider the matter. The principal and the teacher who had visited with the girls earlier that week relayed to the board the information that was given to him by the students and the board voted to suspend the girls for the balance of the semester pursuant to the regulation cited in our briefs.
Harry A. Blackmun: Right there, Mr. Smith, what is the balance of the semester? This was in February, wasn't it?
G. Ross Smith: Yes, Your Honor. This occurred on February 7, the hearing was on February 18.
Harry A. Blackmun: So, that would be until June?
G. Ross Smith: Your Honor, normally, the school year in Arkansas school districts last through May, yes sir.
Harry A. Blackmun: I think your statements made in some of the briefs that the girls lost a full year. How could they lose the first half of the year then?
G. Ross Smith: Your Honor, the Court of Appeals made that observation in its opinion and frankly there is no evidentiary support in the record to sustain that. They had completed the first semester of that school year and there's nothing to suggest that they lost any credit other than that which they would have earned in the spring semester, namely two units.
Harry A. Blackmun: Now, that I have you interrupted. Under Arkansas law, how long does a student -- how long is a student under compulsion to attend school?
G. Ross Smith: Up until the age of 15, Your Honor and both of these students, one was 16, one was 17. So, they were beyond the reach of the Compulsory Attendance Law.
Harry A. Blackmun: Now does the third girl --
G. Ross Smith: This is contrary too in observation of the district judge I might add.
Harry A. Blackmun: Has the third girl never been a party to this litigation?
G. Ross Smith: That's correct, Your Honor.
Harry A. Blackmun: But she apparently was the main force behind the enterprise, was she not?
G. Ross Smith: According to the testimony of the other two girls, perhaps, that does an accurate characterization.
Potter Stewart: What age in Arkansas does a person have a right to attend the public school or is there no limit?
G. Ross Smith: Well, Your Honor, I don't know that there is a right to attend the public schools up to a certain age. The schools may furnish instructions for students between the ages of 6 and 21.
Potter Stewart: May or are they required to?
G. Ross Smith: They are required to. But --
Potter Stewart: Well, it is an obligation on one side. I suppose it's a right on the other side.
G. Ross Smith: Yes, Your Honor. But I didn't mean to imply the school district has to furnish courses of instruction for a person 20 years of age, for example.
Potter Stewart: Well, if he's graduated from the 12th grade, I suppose.
G. Ross Smith: Correct.
Potter Stewart: It's the end of it.
G. Ross Smith: After the girls and the parents were informed of the decision made at the special board meeting, they were later furnished at the request, at their request and the request of their counsel, a special board meeting to be held on March 2. At the outset of this meeting, the board presented a statement of facts which they had found and on which they had based the suspension. Included in the statement was the following which appears at appendix page 137 that the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer-type beverage and later went on to school premises with the alcoholic beverage and put two or more bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and their parents. The respondents and their counsel were then given an opportunity to respond which they did. After the conclusion of this presentation, the board again voted that the children would be suspended for the balance of the year.
Thurgood Marshall: What was the nature of the defense?
G. Ross Smith: I beg your pardon, Your Honor.
Thurgood Marshall: What if anything was the nature of the defense?
G. Ross Smith: Your Honor, the only reference --
Thurgood Marshall: It hasn't anything to do with this case, I am just curious?
G. Ross Smith: The district judge in his opinion stated that, there had never been any contention by the students or their parents that the rule had not in fact been violated. Their contention was the punishment was excessive. On the other hand, their counsel did argue, it doesn't appear that this argument was presented at the board hearing but he certainly argued at trial of the case that because of the low alcoholic content of this particular beverage which evidence demonstrated later to be 3.2%, that there was actually no --
William O. Douglas: You said 3.2?
G. Ross Smith: 3.2%, yes sir. That --
Potter Stewart: Although the district judge simply put the name --
G. Ross Smith: In solution --
Potter Stewart: Only a little bit of the 3.2 --
G. Ross Smith: That's correct, Your Honor, that's correct. The argument was that there had been no proof, if there it wasn't that intoxicating that no violation of the rule had been shown and that this constituted a violation of substantive federal constitutional due process and that is the basis upon which the Court of Appeals ultimately based their opinion.
William H. Rehnquist: You said, the Court of Appeals said that it based its opinion on substantive due process but I didn't read its opinion as saying that the school board couldn't as a matter of substantive regulation provide that you could expel a person for putting the beer in a punch. I read it more as a kind of review of the evidence type of opinion.
G. Ross Smith: That's correct Your Honor.
Byron R. White: Just like Sand case.
Potter Stewart: Thompson against Louisville, you're familiar with that case?
G. Ross Smith: I'm not sure that I am.
Byron R. White: A no evidence case.
G. Ross Smith: Yes sir, yes sir. That's essentially what the Court of Appeals held. In doing so, however, I think the Court of Appeals conveniently overlooked the fact that the school board construed their regulation to reach alcoholic beverages. They so found in a statement issued March 14. The girls themselves admitted a violation and as a matter of fact, the testimony at the trial demonstrated that when the regulation was adopted, it was adopted in response to an incident involving beer which has -- well, I don't think the record shows what the beer would have had in terms of alcoholic content.
William J. Brennan, Jr.: Well, this was 3.2, I think you said it.
G. Ross Smith: That's correct, Your Honor.
William J. Brennan, Jr.: Is that intoxicating? I thought they use to have -- they're allowed to drink that because it wasn't.
G. Ross Smith: Your Honor, in terms of the alcohol -- the Arkansas statute's definition of an intoxicating liquor from a criminal standpoint, it is in excess of 3.2, a defined beer as a malt beverage containing up to 3.2% alcohol.
William J. Brennan, Jr.: Well, what -- this was 3.2, whatever you call it?
G. Ross Smith: Not to exceed.
William J. Brennan, Jr.: Not to exceed --
G. Ross Smith: Not to exceed 3.2. Yes, sir, this particular beverage.
William J. Brennan, Jr.: Is that beverage intoxicating?
G. Ross Smith: Your Honor, in terms of the Arkansas statute, it is not.
William J. Brennan, Jr.: Are you old enough to remember when we used to be allowed to drink 3.2 beer?
G. Ross Smith: I don't know how to answer that. I don't think I ever drank 3.2 beer, Your Honor.
William J. Brennan, Jr.: Well, I can tell you from personal experience.
Warren E. Burger: Well, is it illegal in this county?
G. Ross Smith: It is and the prosecuting attorney when inquired -- when the Board President inquired of him as to the nature of this beverage, he said, “In his view, it was an intoxicating beverage. Its possession was unlawful. He had prosecuted individuals for possessing it in that county.
Thurgood Marshall: When was it mixed, in the school or out of the school?
G. Ross Smith: I beg your pardon?
Thurgood Marshall: When was it mixed with all of these other juices that are non-toxic?
G. Ross Smith: It was mixed with the non-alcoholic beverage off of the school premises.
Thurgood Marshall: So, when they got on the school premises, it was not intoxicating.
G. Ross Smith: It was 84 ounces of solution, 24 ounces of which was alcoholic and then of course 3.2% of that was the alcohol.
Thurgood Marshall: As I understand --
G. Ross Smith: But Your Honor, right, that's the point.
Thurgood Marshall: But it was 3.2, diluted was made it less than 3.2?
G. Ross Smith: Yes, Your Honor.
Thurgood Marshall: What is -- I thought you said 3.2 made it intoxicated, below 3.2 was not?
G. Ross Smith: That's the definition provided in the criminal statutes of the State of Arkansas. This rule was adopted by the school board, January 10, 1967. The Board President through the board members who were on the board at that time testified that when they adopted this rule, it was adopted in reference to an incident involving beer and that they used the term intoxicating liquor in its commonly accepted lay sense. They had no reference to a criminal statutory definition of what is and what is not intoxicating.
Thurgood Marshall: But it wasn't beer. What they brought in there was not beer. It was beer diluted with ice and everything else, it wasn't beer?
G. Ross Smith: That's true, Your Honor.
Thurgood Marshall: Orange gluc--, strawberry soda, Coca-Cola.[Attempt to Laughter]
G. Ross Smith: Your Honor, the point --
Thurgood Marshall: Lemon juice.
G. Ross Smith: The point we're trying to make is that this board, [Laughter] this Board of Education construed the conduct of these youngsters to be a violation of its regulation and they imposed a punishment.
Potter Stewart: I suppose now?
G. Ross Smith: They had a remedy provided by the State of Arkansas by their state courts. Since 1909 the Courts of Arkansas have been available to issue writs of mandamus for wrongful suspensions. Now, we submit, there is no federal question involved in this somewhat ludicrous case. And that the Court of Appeals erred in remanding this case for trial on the plaintiff's claim for damages in the amount of $90,000.00 against the school board members in their individual capacities. The substance of our argument here is that this case doesn't belong in the federal courts. There is no federal interest in liberty or property involved in this case. There is nothing which would require or authorize this Court or the Court of Appeals to consider whether or not the board made an error in applying its intoxicating beverage rule to these facts. There's no federally protected right to set aside an erroneous decision made by a state officer, be it a school district or anything else and we contend that this is the dispositive issue in the case. Whether we agree or disagree with their finding that a violation had occurred or the assessment of the punishment, it's not a matter that's protected or involves the United States Constitution.
Byron R. White: Your immunity claim is we can prolong too, I take it?
G. Ross Smith: Yes, Your Honor. The Court of Appeals stated that the standard by which the jury will determine whether or not to award damages against these board members in their individual capacities. Its good faith objectively determined. Now frankly, I don't know what that means, but I would assumed it means some standard calling for a judgment as to whether they acted as reasonably prudent school board members would have acted without inquiring into their actual state of minds.
Byron R. White: Now, what then -- and you said that, there's something closer to absolute immunity?
G. Ross Smith: Yes, Your Honor. We think that this Court's opinion in the Rhodes case coming from Kent State, provides the very minimum standard that should be employed and there the reference --
Byron R. White: That is objective of good faith standard, I think?
G. Ross Smith: Your Honor, if the Rhodes -- if the Rhodes standard of conduct is objective then fine because it does require an actual inquiry into what the man was thinking at the time he did it and whether he had reasonable cause --
Byron R. White: I thought that was an order in the Rhodes?
G. Ross Smith: I'm sorry, sir.
Byron R. White: Either a subject in bad faith or objective bad faith, I am sure your case --
G. Ross Smith: Your Honor, the Rhodes case states that the immunity depends on the existence of reasonable grounds for the belief formed at the time --
Byron R. White: That's subjective.
G. Ross Smith: -- in the light of the circumstances coupled with good faith belief.
Byron R. White: Coupled with good faith belief?
G. Ross Smith: Yes, sir.
Byron R. White: It has to be that the 14 year-old --
G. Ross Smith: That affords basis for immunity. Yes, Your Honor. And that is in fact the manner in which the district judge instructed the jury.
Byron R. White: Are you satisfied to show your standard or not with the Rhodes standards --
G. Ross Smith: Your Honor, we think actually that there are grounds for an absolute immunity here, but frankly there's very little authority to support that argument.
Byron R. White: So you're -- so you're not satisfied with it but to show here is that Rhodes is the law, isn't it and the lower court instructed that?
G. Ross Smith: Well, actually Your Honor, the district judge in his findings, its temporary restraining order hearing said, “I find that the school board members had reasonable grounds to believe that their regulation have been violated at the time they took their initial action in this case. As a matter or law, the damage issue should never have been submitted to the jury.”
Byron R. White: Well then, what did the Court of Appeals say?
G. Ross Smith: The Court of Appeals stated that they could say on the basis of this record that the defense of good faith had been established as a matter of law. Now, I would point out to the Court that the district judge had before him a good deal more evidence than did the Court of Appeals because the trial transcript to the trial concerning some four days, it was not included in the appendix in the Court of Appeals. It is in the record in this case at this time and we submit that an examination of that would be illustrative of the actual good faith evidence by these school board members.
William H. Rehnquist: Well, how is the Court of Appeals able to review the District Court's action if there were -- if there wasn't a transcript of the evidence? What basis did it use to review it?
G. Ross Smith: It reviewed evidence which had been compiled at the temporary restraining order here along with answers to interrogatories and some other factual material that was in the case, affidavits submitted in connection with both motions on.
Byron R. White: But you do -- you do maintain -- one your questions you want reviewed here is whether the Court of Appeals was correct in its immunity ruling?
G. Ross Smith: Yes sir.
Byron R. White: Or its standard ruling, whatever you want to call it?
G. Ross Smith: Yes sir, yes sir. It's undefined in terms of whether it would permit someone who really believed they were doing what they should be doing to be found to be in good faith. As I read their opinion, it would not. It's a question of what a reasonably prudent person would have been doing under the same or similar circumstances.
Byron R. White: Well, then happens --. I would suppose the Rhodes said that you might think -- you might subjectively say that you were in good faith but it might be that you didn't have reasonable grounds to think so, in which event you are not immune from the Rhodes?
G. Ross Smith: Yes sir. As long as we don't get to the position where somebody makes a wrong decision, a decision that's safe -- what comes to mind the Kirstein case where the issue was whether the college officials had committed a constitutional violation by excluding women from what had previously been an all-male school. They did exclude women. The Court said, there was no reason at the time for them to saying this was unlawful and we won't assess damages against them. They made a wrong decision, they weren't liable for it. But one other point which is very important is that the board all along has dealt with this case on the basis of admitted facts. There has never been any controversy as to a factual dispute with the possible exception of whether or not this mixture was intoxicating. And under these circumstances, we submit that this is not an appropriate vehicle for the Court to reach the issue of procedural due process.
Warren E. Burger: Was the Scheuer against Rhodes' opinion down by the time the Court, I think not?
G. Ross Smith: I believe not, Your Honor. It's able --
Warren E. Burger: It is not cited in the opinion?
G. Ross Smith: Right and the Court of Appeals' decision was in August 1973. We would urge the Court to examine the question of whether there is in fact a federally protected right here to establish the requisite elements of 1983. We submit Rodriguez stands for the proposition that unless there is a total denial and we don't have here a total denial, we have an expulsion or a suspension, if you will, for a portion of one of 24 semesters that a public school student in Arkansas will be attending school. Efforts were made here to assure that these girls would graduate with their class by taking one correspondences course and one additional course to make up the two units they missed. And in connection with the previous inquiry, I believe that Mr. Justice Rehnquist in the last case as to whether there is a property interest involved even the District Court decision in Lopez against Gomez -- Goss -- Lopez against Goss, I believe conceded that education did not involved a property interest. In Epperson against Arkansas, this Court said that discretion that is to be accorded to public school officials was extremely broad and this Court should intervene only in a clear case of constitutional violation and we respectfully submit that this case involves no such clear case of constitutional violation. If the Court please, I'll save the remainder of my time for rebuttal.
Warren E. Burger: Very well. Mr. Core.
Ben Core: Mr. Chief Justice, may it please the Court. I'd like to start out by admitting what I'm afraid will become obvious before I'm finished and that is I'm not a constitutional lawyer, neither am I a civil rights lawyer. I was in two civil rights cases before this one. One was settled and the other one was tried and not appealed and then this one has brought me all the way to the U.S. Supreme Court. Probably, I have read more federal court cases in the last, since this case has been going than I had read in anytime prior to that and I still do not have any feeling of confidence really to discuss constitutional law. But I have been in this case since before it was a case and if I can help the Court in any way, perhaps it would be more as a result of that than the ability to discuss constitutional principles. This case got its start when these parents and children came to me to get me to help them get the school board to meet again. They had been spending, this was on the 24, February and they had the spent the intervening six days in an effort to get the board to meet again, to hear them. And I first declined to take the case at all, but I did agree to go with them, see if I could get the board to meet again and go with them and we would get our knees really and beg for mercy, see if we could get back in, that was the beginning of the case. And that was the preliminary to the meeting of March 2, 1972 and at that time, they had been out of school some 11 days.
Harry A. Blackmun: At that time, were you representing the Wall girl?
Ben Core: No sir, the wall girl never came to me. Just Crain and Strickland and I wish Wall had because she was a full-blood Indian but --
Byron R. White: She was a what?
Ben Core: She was a full-blood Indian, but she didn't come.
Warren E. Burger: How was her name in the pleadings?
Ben Core: Sir.
Warren E. Burger: How is her name in the pleadings if she never --
Ben Core: She's not in the pleading. Jo Wall is not.
William J. Brennan, Jr.: I'm curious, what difference would that have made?
Ben Core: Well, I think the district judge would have ordered the school board to put these kids back in school. I think if we have had a member of minority race, I think --
William H. Rehnquist: You have been reading some of our Indian case.[Attempt to Laughter]
Ben Core: Well, again, I'm not familiar with those either.
Harry A. Blackmun: Who was the district judge, Judge Williams?
Ben Core: Yes, sir. Paul X. Williams.
Harry A. Blackmun: And you feel that this would have made a difference as well --
Ben Core: Well, judging from what he said that the first hearing Your Honor. He said that, “If these were little colored girls. I'd have to put them back in school.” And but they're white girls and well, you know. If he -- if that made a difference to him, I think that might have had. If we -- it had to be Indian, but any rate, we didn't. We just have Strickland and Crain. And as I say, this -- the first meeting, the one on February 18, 1972 was more or less was secret meeting as far as the parents were concerned and it cannot begin to rise to the dignity of due process, either procedural or substantive. And then the meeting of March 2 was really not in the sense of a hearing, it was -- I had agreed to go with these people to see if I could have an influence with them. I had held office in that district and they were just convinced that I could. I was not convinced but I went with them to trial and the meeting was -- it was really no meeting. It was just exactly what we had in mind, that is going in and apologize and ask them to reinstate us and they offered no evidence. They -- we didn't see their witnesses. I had asked for the homeroom teacher to be there and she had talked with the superintendent and asked him if she had to be and he said she didn't and so she didn't come. So, really, the March 2, meeting of 1972 is not a meeting that furnished either procedural or substantive due process.
Harry A. Blackmun: Well, do you agree with Mr. Smith that there isn't any dispute as to the facts here?
Ben Core: No sir, I do not. He -- but he based that on the fact that there was no dispute about this being on an alcoholic beverage or on intoxicating beverage and there certainly is.
Harry A. Blackmun: Well, apart from that one feature, is there any dispute about the facts?
Ben Core: Well, they have left out many facts which we feel to be pertinent. They have not disputed any facts which we have submitted.
Harry A. Blackmun: Did you put on or try to these omitted facts?
Ben Core: Yes sir, they're in evidence. See, we tried the case for four days but we did not bring that record up simply because of the cost. See, the girls took the appeal from the District Court and they had -- the District Court had dismissed the case on the basis of these motions for judgment notwithstanding no verdict which was the equivalent of directed verdict. So, it raised an issue of law and we just took up enough proof to show that there were issues of fact that need to be resolved. And as a matter of fact, we couldn't afford that record.
Byron R. White: You mean, you couldn't afford the print it.
Ben Core: Right.
Byron R. White: But the record is here, is it in typewritten?
Ben Core: Well no, the --
Byron R. White: There was no --
Ben Core: The evidence -- no sir. The evidence that was taken at four days of trial was never sent to the Court of Appeals.
Warren E. Burger: Is it here?
Byron R. White: Was it transcribed?
Ben Core: It had been since the board took this appeal to this Court.
Byron R. White: Well, then --
Potter Stewart: I think the original record is here.
Byron R. White: I would assume the original record is here then?
Ben Core: I don't know Your Honor. I've seen it but I returned it to the clerk.
Byron R. White: Did it ever get to the Court? It never got to the Court of Appeals.
Ben Core: No, sir.
William J. Brennan, Jr.: Think it might not be here then?
William H. Rehnquist: Before the school board, did your clients contest the basic factual claim that they had gotten the so-called malt beverage over in Oklahoma and put it in the punch bowl?
Ben Core: Your Honor, of course, they were not at the February 18 hearing at all but at the March 2 meeting, the whole procedure was for the girls to tell the school board what they did and they did tell, when I say the girls here, I mean the plaintiffs, Ms. Strickland and Virginia Crain. They did tell the board exactly what they had done. And --
Warren E. Burger: That's a little cryptic to me. Exactly what they had done was it -- what is alleged, that is that they went over to Oklahoma and got some beer and brought it back and put in the punch bowl?
Ben Core: Yes sir. Well, --
Warren E. Burger: No, dispute over that then?
Ben Core: That's again leaving out what we think is some important facts. Jo Wall was the one who knew where to go. Virginia and Peggy didn't and they went with her. And then they came back to Mena and bought this King Cooler, some 60 ounces of it and mixed it all together and then took it to the campus and then there they added enough water to make a gallon-and-a-half. So, you have 0.76 ounces of alcohol when they go up on the school ground.
Harry A. Blackmun: Mr. Core, is this all in the record here? It seems to that what you just said is --
Ben Core: Yes. This is or at least enough to make the computation of 7.68 ounce.
Harry A. Blackmun: Well, I'm curious as to what is still missing that you're complaining about?
Ben Core: Well, all that is here Your Honor is the two hearings which held. One being on March --
Harry A. Blackmun: These are the facts you've just recited. I certainly read the, somewhere, either in the briefs or on the Court of Appeals' opinion.
Ben Core: Right. There in that testimony, it was taken March 7 and April 7.
Harry A. Blackmun: Well, then what in addition is still missing?
Ben Core: Well, we had the -- we had the parents testified. We had a doctor, hematologist testified about the effect of three quarter of an ounce of alcohol on an average man. We had one of the school board directors testify, two of them, a Dr. Wood and Mrs. Gilford and we had some of the mothers there who attended this mother-daughter function and didn't know that there was anything in there, in the spiking agent.
Harry A. Blackmun: Well, it doesn't it all come down to what is the difference between intoxicated in alcoholic and here there's no argument, is there, about this being an alcoholic beverage and is there any argument that it was non-intoxicating even under Arkansas?
Ben Core: Yes, definitely. There is a -- well, no. They -- if the school board admits that it was not intoxicating, its -- there will be no argument. So, that's our position, if not intoxicating.
Byron R. White: But they think, they think for their purposes of their rule, it is intoxicating, that's what they thought.
Ben Core: That's the premise they proceeded under but the President of the School Board admitted on a cross-examination that the girls had not violated the rule.
Byron R. White: Well, are you defending the Court of Appeals' decision?
Ben Core: Yes, sir.
Byron R. White: And the grounds for it, the rationale for it?
Ben Core: Well, yes. You mean, from the standpoint of whether or not the children should be given any --
Byron R. White: No, as to whether the reason for the Court of Appeals' decision in your favor that there was no evidence of the fact that there was an intoxicating beverage involved?
Ben Core: Yes, I think that's true that there was none and as a matter of fact, the truth is that it was not intoxicating.
Warren E. Burger: Was this illegal conduct in that county?
Ben Core: Only because -- first, it was not Your Honor because it did not violate any law concerning intoxicating beverage.
Warren E. Burger: Well, did it violate any law?
Ben Core: Yes, it violated a law against possessing beer that did not have the Arkansas tax paid on it. And this is what they got rid of the bottles before they came back, I suppose, they said that they poured it out in the milk carton before they came back across the state line. But at any rate, it is against the law to possess it without the Arkansas tax being paid on it.
Warren E. Burger: So, that you do not question that the girls who were guilty of some illegal conduct?
Ben Core: That's true, right.
Warren E. Burger: Just a question of how you define that illegal conduct?
Ben Core: Right. But of course --
Potter Stewart: There's question isn't it, as to whether or not the girls engaged in a conduct that was -- that is proscribed by the rule of the school board 3 (b).
Ben Core: That's correct.
Byron R. White: That's the question?
William H. Rehnquist: Well, or more properly, to what extent should a federal court in a 1983 action second guess a school board's decision that that regulation was violated?
Ben Core: Well, I believe it's the procedural problem --
Potter Stewart: Yes.
Ben Core: -- Your Honor, because if they had proceeded in a correct manner, then they would have determined that there was no violation.
Byron R. White: But if the school board construed its own regulation, meaning, intoxicating is equivalent to alcoholic, what's the federal court got to do with that?
Ben Core: Well, it's not really that point that I believe that there is federal jurisdiction. It's the fact that by the manner in which the school board proceeded that they had already pronounced a very serious judgment without ever having found out that there was either no violation or that it was very questionable whether there was any violation or that even so that these two or three children were not such as would justify this type of penalty. In other words, how far -- if they had proceeded on a correct manner, they would never have pronounced this judgment because --
Byron R. White: You're then pressing a procedural due process?
Ben Core: Yes sir. In fact, the complaint, and I take the issue of Mr. Smith on that, the complaint attacks to the rule as being invalid because it's mandatory and does not permit consideration of mitigating circumstances.
William H. Rehnquist: Is that a federal claim? You said, the Constitution prohibits a school board from adopting a mandatory rule like this and not taking the consideration mitigating circumstances?
Ben Core: Yes sir, if it --
William H. Rehnquist: What case of ours do you rely on for that?
Ben Core: I'm sorry I couldn't cite you a case. But if it deprives them of -- if they adopt the rule which when enforced will deprive them of a federal right, then I would say it's certainly of the federal courts would have the right to declare it invalid and that's our contention here. So, we think the rule --
Harry A. Blackmun: Mr. Core, we approach it from this end. Suppose that this regulation spoke in terms of alcoholic rather than intoxicating beverages. Would you be here?
Ben Core: Yes sir and I'm glad you made that point because yes we think the procedure in addition to the problem with the rule, we think the procedure which the board follow is really the reason that they pronounced such a severe judgment on a childish prank with girls that had never any trouble with them before. We think that their procedure is what led them into this. They only heard from two teachers and the teachers had done nothing except talk to the girls and the girls knew nothing about what they had gotten or what they put in there, it could've been anything. And any sort of respectable investigation would have demonstrated that this was not a serious manner, calling for the type of punishment which they inflicted.
Warren E. Burger: Are you defending on the Cruel and Unusual Punishment Clause?
Ben Core: Yes, Your Honor. I think that's involved, cruel and unusual. I think it's also equal protection is involved and we pleaded it in the complaint.
Warren E. Burger: Suppose two students were found sitting in the classroom drinking beer right out of the original bottles, your theory of this case would be exactly the same that the school board could not do what it did here in the way that it did it?
Ben Core: That's correct, yes sir.
Warren E. Burger: So, they could drink beer with impunity even though it's illegal to possess it in that county?
Ben Core: No, [Attempt to Laughter] I don't believe that follows Your Honor. I would think this that what should be done is that children should be called in and it should be discussed with them and if indeed they just flagrantly violated the school discipline by drinking beer even though it's not included in any rule. I think certainly, this one should be inflicted on them.
Warren E. Burger: That brings us around Mr. Justice Rehnquist's question just precisely, how is that a federal question?
Ben Core: Well, we feel that --
Warren E. Burger: Federal constitutional question?
Ben Core: -- that the State of Arkansas has provided this right or this opportunity for education. And the procedure which they have followed in this case has deprived these children of the right to take advantage of that education for a rather drastic --
Warren E. Burger: Was it the procedure or the beer?
Ben Core: I think it's the procedure.
Warren E. Burger: If -- you do concede -- you do concede that the school board would have an inherent power to impose a punishment for drinking this same beer in the classroom?
Ben Core: Well, I certainly do.
Warren E. Burger: But they could not impose such a severe punishment as was imposed here?
Ben Core: I agree with that, yes sir.
Warren E. Burger: That's -- that's your point.
Byron R. White: We could disagree on the Court of Appeals, I take it on the ground that they used here such as the due process and you could still win on the procedural question which the Court of Appeals didn't reach.
Ben Core: Yes, sir. They bypassed that --
Byron R. White: Except for one meeting, they said that on March 2 and February 18 meeting where there was no procedural due process?
Ben Core: Right.
Potter Stewart: And they didn't decide the question with the respect of second meeting?
Ben Core: Right, correct.
Harry A. Blackmun: Of course, you don't know why they bypassed it?
Ben Core: No sir, except the defense -- satisfied on deprival of substantive due process and didn't feel it necessary to pass on.
Harry A. Blackmun: Do you think they called the substantive due process issue was easier than the procedural due process for the second meeting?
Ben Core: I wouldn't hazard to guess on that, [Attempt to Laughter] Your Honor.
Harry A. Blackmun: Would you explain to me too the injury that these girls, as I indicated in my question to Mr. Smith. Did they lose a year's -- a whole year's time?
Ben Core: Yes sir. What happened, they took correspondence course and so forth. They lost the credit for the entire year and they had to repeat the entire year.
Harry A. Blackmun: Doesn't the system worked on a semesters --
Ben Core: It is a semester basis.
Harry A. Blackmun: How come they lost the whole year?
Ben Core: Well, no. In fact, the superintendent testified that -- and when you ask me if it worked on semester basis, true, they do carry it in the semesters but the superintendent testified that it was -- that they would fail the entire 10th Grade and have to repeat the entire 10th Grade. He said that even if they were expelled on their last day of the second semester, they lost the entire year. But because this was a penalty attached to being expelled, that's what he said, and that's in the testimony.
William J. Brennan, Jr.: Well, the Court of Appeals, I notice in footnote 1, says the practical effect of the suspension was to cause the girls to fail that entire sophomore year?
Ben Core: That's right.
Harry A. Blackmun: That's what the Court of Appeals said but I want to know whether it's a correct statement?
Ben Core: It is indeed a correct statement.
Potter Stewart: Well, Mr. Smith told us it was an incorrect statement?
Ben Core: Right and I have to disagree with Mr. Smith on that.
Byron R. White: Well, at least, to the girls miss three months of school and they have to make up the next three months of school?
Potter Stewart: No, question to that.
Ben Core: And it would have been --
Byron R. White: Six months, that's a long time.
Ben Core: And it would have been the subject matter which wouldn't have been covered until the second semester which means that they'd have to lay out an entire year. Now, I think -- I think really, the factual basis of the case is so compelling that Mr. Smith says, he predicts dark consequences if we hold that federal court has jurisdiction in this type situation. I would really rather can look at it this way as what's going to happen if federal courts do not take jurisdiction in this type of situation.
Warren E. Burger: One thing that might happen is that they'd go into the state courts, isn't it?
Ben Core: Well, that's true but --
Warren E. Burger: Wasn't that the custom until just a few years ago?
Ben Core: Well, in my -- I've practicing a little over -- I am well over in the 24 year and I don't recall any suits like this before. I don't remember reading any in the Arkansas Supreme Court reports except that one real old case where the father brought a suit against the school board and they held that he had no interest in and that's the only case that I know of.
Harry A. Blackmun: Well, isn't this just a new fashion kind of case that you and I were in elementary school, we got bumstead and we went home.
Ben Core: That's right.
Harry A. Blackmun: And made a federal case out of it?
Ben Core: That's true, that's back in the days of paternalism that our district judge referred to when he heard the case.
Harry A. Blackmun: You have good courts in western Arkansas, don't you?
Ben Core: I beg your pardon?
Harry A. Blackmun: I say, you have working courts in western Arkansas?
Ben Core: You mean state courts?
Harry A. Blackmun: Yes sir.
Ben Core: Yes sir. And of course, I've been in them quite often and I'm personally acquainted with the judges and --
Harry A. Blackmun: Isn't that where Judge Williams came from?
Ben Core: Yes sir, he came from Booneville by which is only 35 miles from Fort Smith.
Harry A. Blackmun: You mean he came from the state side on the judiciary?
Ben Core: Yes.
Harry A. Blackmun: He's a state judge --
Ben Core: He served for over 20 years as a chancellery judge before he was a district judge.
Potter Stewart: You mean, in Pope County, where it what?
Ben Core: It's 85 miles south of Fort Smith. It's in Pope County. It's the county seat of --
Potter Stewart: Of Pope County.
Ben Core: Right.
Potter Stewart: And the -- it's a basically small town.
Ben Core: It's some 4,500 population.
Potter Stewart: And the school board has a county-wide jurisdiction , does it?
Ben Core: No sir, there are, I believe, two, three -- three other consolidated schools in the county. And so they would -- their jurisdiction be limited to their district which is the Mena School.
Potter Stewart: Which is Mena, which is basically the town of Mena.
Ben Core: Right.
Potter Stewart: And population of less than 5,000.
Ben Core: Right. And of course, the judges know all the school directors and you made a good point Justice Blackmun. If you read what Judge Williams said, you will see how reluctant he was to order the school board to do what he fully believed they ought to do. And I think you'd have the same problem with the other good judges there and I don't mean to criticize them. I have a great deal of respect for them but you'd get away from that when you get into federal court, most of the time. We didn't here because Judge Williams was from Booneville and had been on the school board and so forth. And as I say, he's a good friend of mine and I certainly don't criticize him but he expressed his great reluctance to order these school directors to do what he was telling them in effect they ought to do.
William H. Rehnquist: But he didn't actually order them?
Ben Core: No sir, he never did. He let it go on to a jury and then he sustained these motions for judgments notwithstanding, no verdict. But again, as I say, I think the factual basis, the way these children were handled is the most compelling argument that I can make that the federal courts should take jurisdiction and should provide a remedy. Thank you.
Warren E. Burger: Thank you, Mr. Core. Do you have anything further Mr. Smith?
G. Ross Smith: Yes, Your Honor. If I might briefly, address the issue of procedural due process. As has been noted, the Court of Appeals acknowledged that the March 2, 1972 hearing may have cured any prior procedural defect. Indeed, the students and their counsel were granted every benefit that they claim in their brief. They had notices of the meeting. They had a statement of facts upon which the action was taken at the inception of the meeting. They had the opportunity to appear to present any witnesses they cared to present. They were represented by a counsel. And if that doesn't constitute procedural due process in the public school context, then I don't know what does. The procedural due process issue will not sustain what the Court of Appeals has done. I would assume that if the defect is found in the procedures, the remedy is to remand the case and give them a new hearing. Now, what on earth are they going to do when they give them a new hearing? What kind of evidence would be presented at that point that already has been presented? The point is that the school board construed its regulation to reach alcoholic beverages. Mrs. Gilford, a school board member, testified at the trial that when the rule was enacted, there was no discussion of a legal definition of intoxicating liquor, that the words intoxicating and alcoholic were synonymous.
Byron R. White: Have these children graduated now?
G. Ross Smith: Your Honor, that's not in the record. I'll be happy to answer the question if --
William J. Brennan, Jr.: Well, haven't they?
G. Ross Smith: Yes, sir.
Byron R. White: When is it?
G. Ross Smith: With their class.
William H. Rehnquist: Their sophomore year ended June of 1972, didn't it?
G. Ross Smith: That's correct, Your Honor. They graduated this past spring.
Warren E. Burger: They made up the year then.
G. Ross Smith: Yes, sir, by taking a correspondence course and one other extra course.
Byron R. White: Now, let's assume for the moment -- let's assume just for the moment that the school board -- that the Court of Appeals was reversed but the case was remanded and the Court of Appeals held that there was a denial of procedure of due process, that the suspension had been imposed not in accordance with the Constitution but in violation of the Due Process Clause. Let's just assume that. But that, as far as they can tell, they were -- validly there was good cause to throw them out.
G. Ross Smith: I would assume that under those circumstances, there's --
Byron R. White: Would there be a remedy or would --
G. Ross Smith: -- distinct possibility that the students would pursue their damage claim against the individual school board members, since they have had at least take up two extra courses at that point. It was a serious punishment. The point is not whether any of the federal judiciary agrees with whether it was a punishment or not. The point is whether it's a decision that this school board is entitled to make. The board is in a county in which the citizens of the county have made a decision that they think, possession or sale of alcoholic beverages is a serious matter. And we submit this honorable Court should not intervene to substitute its judgment for that school board.
Warren E. Burger: In other words Mr. Smith the federal question does not arise out of a mere mistake of judgment by school board?M
G. Ross Smith: Yes, Your Honor.
Warren E. Burger: Mr. Justice Blackmun has a question for you.
G. Ross Smith: Yes, sir.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


William H. Rehnquist: We'll hear argument now in No. 90-1141, Rafeh-Rafie Ardestani v. Immigration and Naturalization Service. Mr. Soloway, you may proceed.
David N. Soloway: Mr. Chief Justice, and may it please the Court: This case addresses the applicability of the Equal Access to Justice Act, or the EAJA, to deportation hearings before an immigration judge. More particularly, this case deals with 5 U.S.C. Section 504, that prong of the EAJA that applies to administrative proceedings. And those proceedings, in order to be eligible for EAJA fees, the Government must be represented by counsel. In this case, the Government, the Immigration Service, was represented by their trial counsel. In addition, it is required that the statute say that this proceeding be determined. It must be determined on the record. That is the case here. And in addition, the position of the Government must be not even substantially justified. Here the Immigration Service produced no evidence at all in support of its position. The EAJA was enacted to further specific purposes. One was to aid victims, to help avoid the situation where someone might have to surrender their rights and succumb to unjustified Government action just because of the expense of hiring an attorney. Mrs. Ardestani's petition for asylum was wrongfully denied and she was unjustifiably placed in deportation proceedings, proceedings so complex and with consequences so harsh, that it was necessary for her to engage an attorney. Another specific purpose of the EAJA statute is to deter unjustified Government action. And that's done by holding the agency itself accountable. The Service did not dispute the Secretary of State's determination that Mrs. Ardestani had a well-founded fear of persecution were she to be returned to Iran under the Khomeini regime. Instead, the Service unwarrantedly asserted that Mrs. Ardestani had firmly resettled in a third country. They asserted that even though she had been in a third country for only 3 days, staying in--
William H. Rehnquist: We're really not... those are really quite peripheral facts, aren't they, Mr. Soloway? What we're talking about here is whether a deportation proceeding is an adjudication under Section 554 for purposes of the EAJA?
David N. Soloway: --That's correct, Mr. Chief Justice. The EAJA provides broadly for protection for people who have been subjected to severe agency misconduct. And of all the possible Government agencies, and of all the possible agency proceedings, deportation proceedings are the ones that most specifically meet the EAJA context. They're the ones where the most harsh consequences meted out by any agency are meted out... consequences that may be tantamount to banishment or exile, or in the words of Justice Brandeis, "the loss of life and property and all that makes life worth living. " This is particularly so in the context of asylum where, as here, it had been determined that the refugee would be subjected to persecution. Moreover, persons in deportation proceedings are the very people for whom the remedial measures of the EAJA most perfectly are met.
Antonin Scalia: Mr. Soloway, I mean, that's all... yes, I mean, it's very sympathetic, but the fact is even in criminal trials, when someone is wrongly prosecuted, and it turns out there was no basis for the prosecution, EAJA does not reimburse the wrongfully prosecuted criminal defendant. Although he may have spent hundreds of thousands of dollars on his defense, he's not reimbursed, is he?
David N. Soloway: That's correct, Your Honor.
Antonin Scalia: So, we're here to read this statute. Is this one of those instances that's reimbursed or one that isn't? There are some very touching situations that are not reimbursed. This may be one of them. Can we talk about the statute?
David N. Soloway: Yes, Your Honor.
Antonin Scalia: Good. What does it say?
David N. Soloway: This statute says that adversary adjudications, that is the adjudications for which EAJA applies, are those that are under Section 554. 554> ["] is a term that has been the focus of the various circuit courts, and it's a term upon which the majority and the dissentient court below focused. It's an ordinary, common preposition. It's a word with perhaps as many as 25 meanings as a preposition. In order for this Court to properly glean the correct meaning of the definition 554> ["], it's necessary for this Court to look at the entire statutory scheme. This Court has held that interpretation of a statute is not an inert exercise in grammatical or literary composition. Instead, we have to look at what was the EAJA statute about. And, Justice Scalia, I think it's important to understand the way that deportation hearings are precisely those that fit that statutory scheme. 554> ["], those words are merely a cross reference to the definitional provisions in Section 554. It merely means that Congress was cross-referencing and importing into the statute the definition in Section 554. That definition requires... that definition provides that a statute must require that the hearing be determined on the record. In addition, there are six express exemptions, none of which arguably are involved in this case. Confronted by a foreign language, confronted by the most harsh consequences meted out, confronted by a strange culture where the necessity of having a lawyer be involved are at its apex, deportation proceedings are most precisely in concert with the EAJA provisions.
Antonin Scalia: I don't know. Maybe they more resemble, in fact, some of our opinions have said that they, and we've accorded some protections that are otherwise accordable in criminal proceedings. I mean, we've analogized them on occasion... being deported to criminal proceedings. And if they're analogized to that rather than other 554 proceedings, then there'd be no compensation. I don't--
David N. Soloway: Your Honor, of course, if they were tantamount to criminal proceedings, were this Court to so hold, the Sixth Amendment right to counsel may be invoked. The... that's not something that's being urged in this case. As a matter of fact, here particularly, we're talking about someone who has engaged counsel at their own expense and merely a fee shifting in those adversary adjudications where the Government has been abusive.
Antonin Scalia: --Of course the Sixth Amendment right to counsel is not a right to have counsel paid for.
David N. Soloway: Well, I'm talking about appointed counsel, yes, Your Honor. Your Honor, if I understood your earlier question correctly, you were suggesting that were these to be viewed as criminal proceedings, deportation proceedings, because they mete out consequences that may be as harsh or harsher than many criminal sanctions. What seems to follow is that perhaps a person, an indigent person, is entitled to appointed counsel under the Sixth Amendment, although the Ardestani case doesn't specifically require this Court to address that. However, in looking at the statutory scheme and in understanding what this statute means, it's helpful to note that in the legislative history there was a change in the Senate bill from 554> ["], and the joint explanatory statement of the conference committee, which may be particularly probative because it represents the views of both the House and Congress, stated that adversary adjudications were those, and I quote, are defined under the Administrative Procedures Act, where the agency takes a position through representation by counsel. But it's probably a lot more instructive for this court to note that there were no discussions about whether or not different agencies, different categories of agencies were to be within the scope of EAJA. Instead, EAJA was a broad remedial statute, and the discussions were about categories of proceedings, those that were... pardon me... trial like, versus those that are rule making or price fix... rate fixing. In addition to that, in order to get... to understand the meaning of the common preposition under, in this particular instance, the EAJA, on its face, recognizes the Administrative Conference of the United States as an authority on the EAJA implementation. The EAJA... pardon me... the ACUS chairman is required to be consulted with in order for--
William H. Rehnquist: We will resume there at 1:00, Mr. Soloway.
David N. Soloway: --Thank you, Your Honor.
William H. Rehnquist: We'll resume argument now in No. 90-1141, Ardestani against INS. Mr. Soloway.
David N. Soloway: Mr. Chief Justice, and may it please the Court: More important than the rejection of the Senate language EAJA recognized the ACUS as an authority on the subject of the EAJA, and there the chairman stated that questions of EAJA's coverage should turn on substance. The fact that a party has endured the burden and expense of a formal hearing, rather than technicalities. This is particularly important because that's precisely what we're faced with here... a suggestion that a hyper-technical interpretation of the word EAJA statute to those particularly in need of the statute is to be compared to the functional and more appropriate interpretation as "as defined in"... in other words, just mere importation, a cross-reference of those terms. And for that reason, the burden should be on the Government to show that the Congress intended not to have merely a cross-reference to import those definitional words, but the Government really should have the burden to show that Congress intended to cover and protect people from all sorts of agency adjudications, but not those particularly in need of it in deportation proceedings. There's no dispute that the EAJA statute applies to certain Social Security cases, those in which the Government, as represented by counsel--
Anthony M. Kennedy: Have we held that?
David N. Soloway: --Your Honor, the practice... let me answer your question directly. I don't believe that question has ever been presented. It's been so clear on its face that it's never been challenged. In those instances where Social Security proceedings have counsel representing the Government, the EAJA applies. There have been fees award... awarded and there's not been a challenge. And the Government in this case hasn't urged a different interpretation. As a matter of fact, in the legislative history of the 1985 reenactment, there's a specific example used of application of the EAJA statute. In that explicit example, the Congress... the legislative history states in those instances... for example, Social Security proceedings... where the Government is represented by counsel, then in those events... in those events the EAJA will apply.
John Paul Stevens: But that's in legislative history materials. There's nothing in the statutory language itself that answers the question whether Social Security hearings are covered. Is that correct?
David N. Soloway: Except for the interpretation and the same reasoning that's urged in this case, Your Honor.
John Paul Stevens: In other words, if they are under the APA or whatever it is, then you argue that by a parity of reasoning, the deportation proceeding is also under?
David N. Soloway: Mr. Justice Stevens, that's largely correct, but there's even more to the argument than that. In 1971, this case, in the Richardson v. Perales case, declined to decide the distinction whether or not Social Security proceedings are technically governed by the Administrative Procedure Act, or instead by the more specialized version of the APA, namely the Social Security Act. That arcane legal distinction has never been resolved. That debate has never been terminated. Yet Congress clearly wasn't interested in whether or not Social Security proceedings were technically governed by that statute. Instead, they simply wished to categorize by types of proceedings, rather than by agencies or by governing statutes.
Byron R. White: Well, isn't there a case in this Court that says that INS proceedings are not under the APA? What is that... Morello? Marcello. Or Marcello?
David N. Soloway: Well, Justice White, the Marcello case was not an EAJA case, but there this Court was called to look upon a divergence, a unique divergence that existed 36 years ago between the Immigration Nationality Act and the APA. Only in the immigration act could one person have both adjudicatory and prosecutorial functions. And this Court ruled that in those hearing provisions, that differed from the APA's hearing provisions, that the INA proceed... INA provisions would prevail.
Byron R. White: Well, does a proceeding under the APA have any... what does it mean to say under the APA?
David N. Soloway: Your Honor, the statute here says under Section 554.
Speaker: Yes.
David N. Soloway: Do I understand you correctly to be meaning under Section 554 as opposed to under--
Speaker: Yes.
David N. Soloway: --Under Section 554, the definition of an adversary adjudication is defined under Section 554.
Byron R. White: And so what does "under" mean in your--
David N. Soloway: It merely means, Your Honor, a cross reference, as defined in that section, in accordance with that section. It merely is a phrase used to transport, if you would, the definitional section with its exceptions into the EAJA statute.
Antonin Scalia: --But these hearings are not conducted in accordance with that section.
David N. Soloway: They are, Your Honor. There... all of the statutes are identical. There's the requirement that determinations be made on the record. There's the entitlement to a personal appearance and reasonable notice. All of the Section 554 elements, all of them, without exception, are in place in deportation hearings.
Antonin Scalia: What about the requirement that was at issue in Marcello?
David N. Soloway: That's no longer a distinction. That distinction has evaporated. No longer do deportation adjudicative officers have prosecutorial functions. It no longer exists. Were Marcello to be--
Antonin Scalia: But the requirement, the issue is whether the requirement exists. You're just saying that voluntarily the Government may be complying with it, but the fact is that the requirement that Marcello addressed does not exist. And if the requirement does not exist, then these things are not really under 554.
David N. Soloway: --Justice Scalia, I respectfully disagree with you. If the analysis is going to look at what takes place, what are the rights of people in deportation proceedings, and are they different, can they rely upon, are they in some functional and meaningful way different than those hearings conducted under the technical governance of the APA, the answer has to be no. And the fact that the Marcello distinction has long since evaporated is an important fact.
John Paul Stevens: How did the distinction... what... as I remember, and I am very vague on it, but this distinction only lasted for a couple of years, 1950 or '52, when they allowed the INS Hearing Officer to have investigative functions. What is it that terminated the INS Hearing Officer's ability to have this dual function? Is it statute or a practice?
David N. Soloway: It was not a statute, Your Honor. It was a regulation.
John Paul Stevens: I see.
David N. Soloway: And there's been no need for a statute since that's been the long-standing practice for... in deportation proceedings.
Byron R. White: Well, speaking of regulations, Congress has never taken issue with the Department of Justice regulation on this matter, has it?
David N. Soloway: Your Honor, if you're specifically referring to the 1985 reenactment, which has been raised by the Service in this case, it's important to note that in 1984, before that reenactment, there were two circuit court of opinion decisions that looked at the terms 554> ["] and interpreted those to be... to mean simply as defined in that section... namely, requiring that a hearing be determined on the record and that Government be represented by counsel. And while neither of those were deportation--
Byron R. White: Yeah, but who is the officer... is the fee statute administered by the Department of Justice?
David N. Soloway: --Yes, Your Honor... well, in the setting of deportation proceedings--
Byron R. White: You don't say that the Attorney General doesn't have authority to issue regulations under the fee statute?
David N. Soloway: --The fee statute itself states that the agencies may promulgate their rules after consultation with the ACUS chairman. And in fact, the ACUS chairman has taken a position that's completely at odds with the interpretation reached by the Attorney General.
Byron R. White: Well, that may... that may be so, but do you say that any regulation of the Attorney General under this statute is invalid?
David N. Soloway: No.
Byron R. White: Just any?
David N. Soloway: No.
Byron R. White: Well, so he does have a regulatory authority?
David N. Soloway: Your Honor--
Byron R. White: But you say he's quite mistaken in this case, but Congress has never taken issue with the regulation.
David N. Soloway: --Your Honor, while that's true, that the Congress has not focused upon the Attorney General's regulation--
Byron R. White: And if you think they focused on the two cases you mentioned, I would think they focused on the issue and at the same time didn't disturb the Attorney General's regulation.
David N. Soloway: --I suggest that it's just as plausible that Congress didn't look at either the Seventh Circuit or the Eighth Circuit's interpretation, or this regulation. It had... the issue of EAJA fees being within the scope of deportation hearings had simply never been adjudicated, had never come up through the courts. The Escobar Ruiz case in the Ninth Circuit came after the 1985 reenactment.
Antonin Scalia: Do I understand your position correctly that... it seems to me what you're saying is that if an agency is conducting its proceedings... happens to be... in accordance with the requirements of Section 554, even though it's not obligated to, and even though it doesn't say I am trying to conduct it pursuant to 554. If it just happens to be doing that, EAJA applies.
David N. Soloway: No, Your Honor. The reason for that is that Section 554 requires, it states that the Statute must mandate that a hearing be required on the record and the mere fact that an agency might in its discretion allow hearings to be determined on the record, would not place it within the ambit of the EAJA.
John Paul Stevens: No, but carrying Justice Scalia's question a bit further, if there were some statute, not part of APA, just some... one statute at large in some isolated part of the U.S. Code that said proceedings X shall be conducted in accordance with the procedural requirements of the APA. Then you would say there was an entitlement to fees. Because then you would say that proceeding is an adjudicatory proceeding as defined in Section 554 of the Title V.
David N. Soloway: I think there could be no dispute that if the statute on its face used the more restrictive language than is even necessary, then, yes, it would be within the ambit of EAJA.
John Paul Stevens: And it wouldn't matter whether it was some third statute or if the INS statute itself required an adjudication to fit the definition of 554. You would still say it's an adjudication as defined in 554, and therefore, under 554, as you read the word "under".
David N. Soloway: That's correct. Yes.
Antonin Scalia: May I? In response to my question, I gather then, what you would say is if the statute requires a hearing to be on the record, any statute requires that there be an on-the-record hearing, and if the agency chooses, although it is not obliged, to conduct that on-the-record hearing pursuant to 554, then EAJA applies.
David N. Soloway: No, Your Honor. I don't believe... if I understand you correctly--
Antonin Scalia: Well, then I don't know how you reconcile Marcello, because that is exactly the situation we have here. We have a requirement of an on-the-record hearing. We have the Supreme Court holding that the agency is not obliged to comply with all the requirements of 554. But nonetheless, you tell us, it is complying with all the requirements of 554, and therefore, it's under 554. Isn't that what you're telling us?
David N. Soloway: --Justice Scalia, no, that's not what I'm urging upon this Court. What... I'd like to try to make this more clear, if I may. The EAJA statute says that the hearing... must be required by statute to be determined on the record. That is the one that has to be specified in the statute because that's what EAJA says. However, the other aspects about whether the adjudicative officer can be the same person as the prosecutorial officer is simply not something that... upon which EAJA pivots.
John Paul Stevens: The reason being that the Hearing Officer's capacity is not defined in 554. Isn't that right?
David N. Soloway: That's correct, Your Honor. That's exactly right.
John Paul Stevens: Which is entirely different from Marcello.
David N. Soloway: Yes, Your Honor. In addition to the parallel between Social Security Act proceedings which are... where it has not been determined to be under the APA--
Antonin Scalia: You're saying the Marcello requirement is not in 554 itself?
David N. Soloway: --That... that's correct.
Antonin Scalia: What about (d) that says the employee presides at the reception of evidence, shall make the recommended decision, blah, blah, blah, blah, except to the extent required for the disposition of ex parte matters. Such an employee may not... that is the employee who presides at the reception of evidence... may not be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.
David N. Soloway: Yes, sir.
Antonin Scalia: Isn't that the type of thing that was involved in Marcello?
David N. Soloway: It is related to Marcello in that way.
Antonin Scalia: It is indeed. It is exactly what was involved in Marcello. And it is exactly within 554, isn't it.
David N. Soloway: But, Your Honor, it's not within the definitional part of Section 554. In other words, 554 also deals with the type of notice, the method of notice, things like that. Instead, the importance of 554 and the reference to 554 is merely to import the definition.
William H. Rehnquist: But the statute doesn't say under the definitional part of Section 554. It says under Section 554.
David N. Soloway: Well, yes, it does, Your Honor, that's correct. On the other hand, the statute... the EAJA statute is using Section 554 only for a definition. There's no reason either from the context of the statute or the legislative history, or any other plausible reason to view those additional requirements. But even if you did, they're all met here. All of them are met. Marcello doesn't stand in the way here because the difference that had existed 36 years ago no longer exists, and didn't exist in Mrs. Ardestani's case. The entire panoply, the full... all of Section 554, if you will, has been met in the deportation proceedings.
William H. Rehnquist: Not by the force of statute.
David N. Soloway: The one that's been pointed out by Justice Scalia is by regulation. That's correct.
Byron R. White: The regulation might change and go back to the Marcello situation.
David N. Soloway: Even if that were the case, Justice White, you'd still have the requirements of Section 554, the definition that's in 554, the requirement of a hearing on the record. That would still be met. In addition, the interpretation that's urged, a meaningful, functional definition that includes those most in need of the EAJA, the ones that... for which the EAJA goals are most precisely in concert, that interpretation provides a bright line, an easy application for the courts rather than require the courts to look to Richardson v. Perales analyses or Marcello analyses, as has been discussed this afternoon. I'd like to reserve my time if there are no questions.
William H. Rehnquist: Very well, Mr. Soloway. Mr. Wallace, we'll hear now from you.
Lawrence G. Wallace: Thank you, Mr. Chief Justice, and may it please the Court: This is not a case in which the question presented is left unresolved by the statutory text that Congress enacted. The very purpose of a definition section in a statute is to delimit the scope of the operative terms that the definition section undertakes to define. Here the operative term on which petitioner must rely in Section 504(a) is "adversary adjudication by the agency". And subsection (b) of the same section, 504, defines that term as an adjudication under Section 554 of the Administrative Procedure Act.
John Paul Stevens: Mr. Wallace, can I ask you right there, if one were to agree, and I understand you don't agree with this, but the word "under" should be given the meaning "as defined in, then would you win or lose? "
Lawrence G. Wallace: I think that's a close question, the... but I... only because procedures adopted by regulation now have brought the administrative deportation proceedings closer, and very close, to what is described in Section 554. But there has been no pertinent statutory change since Marcello against Bonds was decided in 1955. So as far as statutory requirements are concerned, the same discrepancies occur in the statutory obligations between what the Immigration and Nationality Act provide and what Section 554 provides. And our position is that EAJA should not be interpreted, and there is not indication that EAJA was intended to deter agencies from voluntarily adopting procedures that more closely conform to Section 554 of the Administrative Procedure Act by imposing a cost on that kind of agency procedural reform by making EAJA fees kick in. And indeed, the very authority that petitioner cites, the Administrative Conference of the United States, came to that same conclusion after receiving comments on their proposed model rule. And in issuing the final model rule at the page of the Federal Register we cite in our brief, volume 46, page 32901, they say quite specifically after discussing this problem of the possibility of deterrence of voluntary adoption of the improved procedures, we have decided, therefore, to drop the provision of the draft rules suggesting that awards will be available and agencies voluntarily use the procedures described in Section 554.
Antonin Scalia: That seems like a good answer. What do you do about the Social Security cases?
Lawrence G. Wallace: The... in the 1985 reenactment of EAJA, there was a reference in the legislative history, in the reports to a procedure under the Social Security Act, which was a pilot program that has now been entirely discontinued as of 1987. We describe that in some detail in a footnote in our brief in Sullivan against Hudson in this Court. That's No. 88-616. Footnote 25 in that brief explains that after a district court decision called Solling against Bowen, criticizing the adoption of this pilot program as unauthorized by statute and saying that the statue requires proceedings in which the Secretary is not represented, and therefore, wholly outside of the EAJA context. The Secretary, as we explained at 52 Federal Register 17286, discontinued in 1987 that pilot program all together. Now, apparently the committee thought that adjudications under that pilot program were governed by 554. That is not definitively resolved what the rationale was for the committee saying that it thought that such Social Security hearings would be covered, but that has become a moot point in light of the discontinued use of that program.
Antonin Scalia: I'm not really troubled with the legislative history part of it. I'm asking for your opinion on whether... and other Social Security proceedings are not at all covered.
Lawrence G. Wallace: They are not at all covered.
Anthony M. Kennedy: In the case we had last term, Melconian, was a court action, I take it, which is different.
Lawrence G. Wallace: That is correct. The question in this case is only the question of the scope of the authorization of the award of fees for administrative adversary adjudications, defined as adjudications under Section 554. So we have explained in detail in footnote 12 of our brief that throughout Section 504, the indisputable, repeated usage of the word "under" in conjunction with another section of the United States code, or another provision of law, the indisputable usage is that it means governed by that provision or subject to that provision.
Antonin Scalia: Well, if it means that, the Social Security Act, there should be no fees under the Social Security.
Lawrence G. Wallace: Well, that was a question left open in this Court's decision.
Antonin Scalia: But I mean if your argument is consistent, that's the result it would lead to, wouldn't it?
Lawrence G. Wallace: Well, we don't know whether this now discontinued procedure was subject to Section 554 or not. This Court's decision in Richardson against Perales left that question open, and it had never been definitively determined. And there will not be an occasion now to determine it, because the program is discontinued. So we don't know whether that was correct.
John Paul Stevens: But you're saying if a statute enacts the precisely identical procedures to those set forth in the Administrative Procedure Act, that then EAJA fees would not apply... say you enact a new statute... Nuclear Regulatory Agency, or something or another... that that would not apply unless the statute, its only word said that these procedures... these proceedings are governed by the APA. Their enacting parallel procedures would not be--
Lawrence G. Wallace: Parallel procedures would not do it, but they would not preclude the possibility that Section 554 would also apply. They might by implication be construed to exclude the separate application of Section 554, but that would be a question to be litigated.
Antonin Scalia: --You have precisely that problem in the National Labor Relations Act, don't you? I think the board proceedings are governed by the NLRA, which predated the APA and tracks it to some extent. And you would say that they are under... are those proceedings under or not?
Lawrence G. Wallace: I can't say that I've looked into that precise question in connection with this case. But I think the statutory criterion for the award of fees is very clear. They are available for adjudications that are governed by Section 554 of the Administrative Procedure Act.
John Paul Stevens: Well, it's very clear if you read the word "under" to mean governed by. It's very fuzzy if you read the word "under" to be as defined in.
Lawrence G. Wallace: Well, that... there are barriers to reading it that way, Mr. Justice. And we think they are insuperable barriers. I mentioned one of them to you already, that throughout that section, 554, the word 12 of our brief, page 14. We collected all... many examples of this. Indisputably, they have to mean governed by, subject to. And the contention would be that this one, and this one alone, is different. And indeed--
John Paul Stevens: But if... couldn't one counter with the argument that why would Congress single out this small category of agency proceedings for different treatment from all others when the equities would seem to be the same and the purpose of the statute would seem to apply?
Lawrence G. Wallace: --Well, the equities may--
John Paul Stevens: And without saying a word about it?
Lawrence G. Wallace: --The equities may not be the same. If Congress were to give specific attention to the question of administrative deportation proceedings, and I don't want to belittle the utility of counsel in such proceedings, but Congress might well come to the conclusion that applying EAJA to these proceedings would not be the best way to address this problem. There are more than 100,000 such proceedings conducted each year by the 92 immigration judges of the INS. And the vast majority of these proceedings... everyone I've talked with there estimates that it's upwards of 90 percent... the question of deportability is either conceded by the alien or very quickly resolved against the alien, and the whole issue becomes a claim by the alien for political asylum or for suspension of deportation.
John Paul Stevens: It seems to me what you're saying is that the cases in which the Government's position would not be substantially justified are a very small number of the total universe.
Lawrence G. Wallace: The Congress might conclude that because these all are a matter that involve discretion on the part of the Government, and they're all matters on which the burden of proof has shifted to the alien, that there would be very few cases in which the Government's position could fairly be said not to be substantially justified. That doesn't mean that there wouldn't be a lot of litigation about that and a lot of courts awarding fees. But Congress could conclude that this isn't really the tool. And it might also be concerned that the exercise of that discretion in favor of aliens in these proceedings might be deterred if it could become a drain on the agency's budget through the award of attorney's fees.
John Paul Stevens: Well, didn't they budget about 100 times as much money for this statute as they've actually spent?
Lawrence G. Wallace: Well, it's true that the costs have not reached the initial estimates that were made when it was--
John Paul Stevens: They've failed by about 99 percent.
Lawrence G. Wallace: --That is correct. But there are reasons why, if Congress gave attention to this question it might conclude that there are better and more effective ways of meeting a need for the provision of counsel in this proceedings than by applying EAJA, and that EAJA might not be well suited to it. That is a matter that Congress simply has not addressed. And I have not yet mentioned another barrier which we think is a very strong barrier to the alternative interpretation that petitioner espouses and that you have queried about. And that is that we are dealing here with a waiver of sovereign immunity. And those must be strictly construed in the first place. And that, in this context, really fairly precludes departure from the ordinary meaning of the word 554> ["], to a more expansive, unusual meaning of the words 554> ["]. And they must... in waivers of sovereign immunity must be express rather than applied, which it seems to us, fairly precludes analogy.
Byron R. White: How about the Erwin decision last year?
Lawrence G. Wallace: Well, the Erwin decision was one in which Congress had clearly subjected the category of cases to a waiver of sovereign immunity and the only question was whether the ordinary rules of the road for waivers of sovereign immunity, the usual tolling rules of the road, would apply.
Byron R. White: So you think the narrow reading of waivers is... that rule is still in place?
Lawrence G. Wallace: Well, this Court has repeatedly referred to it, and has referred to it approvingly in an analogous contexts because ultimately it is a rule that assures against intrusion by the courts into the legislative function of determining what claims on the public fisk should be honored and what claims should not. Of course an argument can be made that this would be a worthwhile use of public funds. But there are many requests for arguably worthwhile uses of public funds and Congress has to determine how to apportion the limited resources that are available. And in at least two decisions of last term that come to mind, the United States against Dolm, and OPM against Richmond, the Court emphasized that this is the essence of the legislative function under our constitutional system. And in any event, it was the well-established principal at the time Congress was drafting EAJA and that established the rules of statutory draftsmanship under which Congress put together this text, with its definition section specifying the proceedings for which fee-shifting would be available. So that is the proper way to read the statutory text, and it was equally well established at the time this statute was drafted by this Court's 1955 decision in Marcello against Bonds, that administrative deportation proceedings are not proceedings governed by Section 554 of the Administrative Procedure Act. We have also collected in our brief, in footnote 26 on pages 28 and 29, some examples of the many uncertainties that would be opened up if, instead of the terms of the waiver of sovereign immunity, the Congress used being the criterion, a more elastic criterion of procedures functionally similar to Section 554 procedures were to be adopted. This would--
Antonin Scalia: I'm going to have to start reading your footnotes, if they're important enough to bring up in oral argument. [Laughter]
Lawrence G. Wallace: --Well, we have not yet refrained from writing footnotes, although I don't take issue with those who have. So that is--
Speaker: Who is that?
Lawrence G. Wallace: --Well, some opinions of this Court are now coming out without footnotes, and they're a pleasure to read. [Laughter] In any event--
Antonin Scalia: Thanks very much. [Laughter]
Lawrence G. Wallace: --Some of the footnotes are also a pleasure to read. [Laughter] So, in essence, our position is that the terms of EAJA's waiver of sovereign immunity govern here. It happens that there's also another barrier to recovery in administrative deportation proceedings. And that is that a holding to that effect would require construing EAJA to repeal by implication Section 1362 of Title VIII. This is to us illustrative of the difficulties that are encountered by straying beyond the terms of the waiver of sovereign immunity that Congress utilized. If there are no further questions, we're submitting our case.
William H. Rehnquist: Thank you, Mr. Wallace. Mr. Soloway, you have a minute remaining.
David N. Soloway: Thank you. I respectfully disagree with the interpretation of the ACUS exemption or discussion about voluntary compliance. I read from the Federal Register, "Congress has provided that private parties in disputes with the Federal Government are entitled to hearings as a right, and others, for whatever reasons, it has been determined that hearings may be provided at the discretion of the Government. " "On reflection we have concluded that it is more consistent with the purposes of the legislation not to cover proceedings of the latter type than to include them. " "We have decided, therefore, to drop the provision of the draft rules suggesting that awards be available when agencies voluntarily comply with the procedures described in Section 554. " That reference to voluntary acceptance of procedures precisely deals with the requirement of hearings being required to be on the record. In addition to that, I wish to bring to this Court's attention that there's been no suggestion of why an agency adjudication--
William H. Rehnquist: Mr.... your time has expired, Mr. Soloway. The case is submitted.