John G. Roberts, Jr.: We'll hear argument today in Dolan versus United States Postal Service. Mr. Radmore.
James R. Radmore: Mr. Chief Justice, and may it please the Court-- The Federal Tort Claims Act's postal matter exception bars any claim arising out of the failure of the Postal Service to fulfill its duty to deliver mail to its intended destination on time and in good condition, but does not bar any claim arising out of ordinary negligence that happens to occur while the tortfeasor is delivering mail. The Petitioner's construction shields the Government from all claims arising out of loss or damage or delay or destruction of the mail, while allowing claims that do not stem from all... do not stem from the violation of the unique duty of the Postal Service to make sure that the mail arrives on time and in good condition. It is the construction most faithful with the text and purpose of the Federal Tort Claims Act. The exception bars any claims, whether for personal injury or property damage, that arise while the mail is... if the mail is lost, misdelivered, damaged, or delayed. The Government argues for a much broader construction that would bar all claims that arise from the handling of mail. The Government's construction depends on a definition of transmission of the mail, viewed in isolation from the rest--
Sandra Day O'Connor: Mr. Radmore, what was the purpose of the enactment of the waiver of Federal sovereign immunity here? Was it to allow recovery for auto accidents occurring by postal trucks?
James R. Radmore: --Well, the--
Sandra Day O'Connor: Was that basically the purpose?
James R. Radmore: --Justice O'Connor, this Court's decision in Kosak tells us that one of the main purposes in enacting the Federal Tort Claims Act was to allow private persons to be able to make claims against the Postal Service from motor vehicle--
Sandra Day O'Connor: Arising--
James R. Radmore: --accidents.
Sandra Day O'Connor: --out of auto accidents.
James R. Radmore: Correct.
Sandra Day O'Connor: And do we normally construe waivers of sovereign immunity narrowly?
James R. Radmore: Well, once you--
Sandra Day O'Connor: I thought we did.
James R. Radmore: --But once there's a broad waiver--
Sandra Day O'Connor: For auto accidents.
James R. Radmore: --Well--
Sandra Day O'Connor: Now, why should we interpret the exception broadly?
James R. Radmore: --Well, the exception... this Court has told us, in both Smith and Kosak, that it is the... the lower courts and this Court, when they're viewing an exception to the Federal Tort Claims Act... that they shouldn't extend the waiver, nor should they view it more narrowly, that they should look at the waiver... they should look at the exception and make a determination as to what the meaning of the words are, and what the reason for the exception was, and they should do no more, nor no less, than that.
Antonin Scalia: Well, I guess we've already construed it broadly, haven't we, in... or, excuse me... yes, construed the waiver broadly. In Kosak versus United States, we allowed a suit against the United States for negligence of a mail truck in an automobile accident. I suppose the language could have covered that, couldn't it?
James R. Radmore: Well, that's exactly what the point... that our point is, is that, because the Government, in this case in... and the Court, in Kosak, has told us that automobile accidents are not barred, are... from... by... they're not barred--
Antonin Scalia: It could--
James R. Radmore: --in the case--
Antonin Scalia: --have been within the literal. It could have been negligent... what is it +/? negligence--
James R. Radmore: --Negligent--
Antonin Scalia: --in the delivery of mail?
Ruth Bader Ginsburg: Negligent--
James R. Radmore: --Negligent--
Ruth Bader Ginsburg: --transmission.
James R. Radmore: --transmission.
Antonin Scalia: Yes.
Ruth Bader Ginsburg: But an automobile accident is something, as the Government points out, that any agency of Government can be involved in, not peculiar to the Postal Service. But the transmission of the letter is... the words are "negligent transmission". Many people think of the Postal Service, the letter carrier, delivering the mail to one's home. That act surely fits the word "negligent transmission".
James R. Radmore: Justice Ginsburg, in isolation, we admit that the word "transmission" could have the broad interpretation that the Government as... is urging this Court to follow. But you have to look at the term "negligent transmission" in the context of the whole exception. And if "negligent transmission" were to be given the broad interpretation that the Government urges and the Third Circuit found, then the words "loss" and "miscarriage" in the exception would be superfluous. And we also know that this Court, on prior occasions, has indicated that the canon that "words are known by their associate. " applies in construing exceptions to the Federal Tort Claims Act. And in... that canon tells us that when you have words that are in a group, they should be given like meaning. And we know that only mail can be lost, only mail can be delivered to the wrong location. And, as a result, it's pretty clear that the term "negligent transmission" deals with the mail, itself. And--
John G. Roberts, Jr.: How... wait, I... it's not true that only mail can be lost, or only mail can be delivered to the wrong location. If you order from a private delivery service, they can do all of those things, as well.
James R. Radmore: --Well, they can do all those things, but they don't have the benefit of the... of sovereign immunity.
John G. Roberts, Jr.: What do you consider covered by negligent transmission? I take it if the... if the postal worker throws the package to the house and there's something in it that gets broken, that's covered by the exception?
James R. Radmore: Any damage to the mail, itself, would be covered to the exception... by the exception. For instance, if a... if somebody had ordered their medication over the... you know, through the Medicare Act, and they had ordered it from a warehouse somewhere in Idaho, and the... during the transmission of the mail, the medication had been lost, well, if somebody was injured, if they had a stroke or they had a heart attack because they didn't get their mail on time--
John G. Roberts, Jr.: Right. But if... now, if they throw the package onto the porch, and it lands in a place where somebody's going to trip over it, you say that's not covered by the exception.
James R. Radmore: --That's not covered, because that's an act of ordinary negligence. Damage to the package would always be covered, but the act of creating a hazardous condition would not be covered, because that's an ordinary tort that would be... subject private persons to a liability between themselves. And that's... the purpose of the Federal Tort Claims Act is to allow the Government to be held responsible for ordinary torts if there would be a like liability between private persons.
John Paul Stevens: Wouldn't the term "negligent transmission" probably cover late deliveries?
James R. Radmore: It would cover late deliveries.
John Paul Stevens: Or incorrect deliveries in--
James R. Radmore: It would... could.
John Paul Stevens: --to the wrong address, something like that.
James R. Radmore: Delay or damage--
John Paul Stevens: Yes.
James R. Radmore: --to the--
Antonin Scalia: It could cover, under your theory, this very act, just dumping the stuff there on the porch, if the consequence of that had not been that the homeowner tripped over it, but that rain destroyed the contents of the... of the letters so that they were illegible.
James R. Radmore: --That's correct.
Antonin Scalia: You would--
James R. Radmore: I--
Antonin Scalia: --say that that would--
James R. Radmore: --Justice--
Antonin Scalia: --be covered.
James R. Radmore: --Scalia, that's correct, that the exception would bar suit against the Government for any damage to the actual contents of the package, itself.
Antonin Scalia: So, in... it seems to me a little strange that this same act is both within the exception and not within the exception, the same act of negligence.
James R. Radmore: Well, it's not really the same act. It's the same act, in that they used the mail, and there was a consequence to the mail, but the creation of a hazard or... through some kind of careless act, whether it be the postal employee or whether it be a person that would raise 2680(c) from the customs exception, whether... or an IRS agent or a private person--
John Paul Stevens: But it--
James R. Radmore: --would all be responsible for creating a hazardous condition on the porch.
John Paul Stevens: --But isn't your response to Justice Scalia... you could make the same argument. If there's an accident, and the truck caught on fire, and the mail was destroyed, you couldn't recover for the lost mail in the truck, but you could... but you could recover for personal injury resulting from the accident. It would be precisely the same conduct.
James R. Radmore: Precisely the same under our interpretation of--
Antonin Scalia: That is a good answer. I'm glad you came up with that. [Laughter]
John G. Roberts, Jr.: What does "negligent transmission" add to "loss" or "miscarriage"?
James R. Radmore: --Well, the... "loss" doesn't cover mail that would be delayed or damaged.
John G. Roberts, Jr.: But I supposed "miscarriage" does.
James R. Radmore: "Miscarriage" would be mail that went to the wrong location. If it was misdelivered, that's what "miscarriage" would mean in this context.
John G. Roberts, Jr.: Or miscarried, like handled in a way that it's damaged, or put in a place where it's going to be damaged. It seems to me that... I'm not sure what additional weight "negligent transmission" covers if you have a reasonable reading of "miscarriage".
James R. Radmore: Well, you could look at every term in the exception, and, if you gave it the broadest definition possible, you could say that all of the words are superfluous, that "loss" would cover mail that was, you know, lost and not delivered to the postal patron within two weeks, and, for that period of time, the mail was lost. But if you look at the exception in--
John G. Roberts, Jr.: No, that doesn't work. I mean, if you deliver it to the house next door, you haven't lost it, you've misdelivered it or miscarried it. I don't... I don't think "miscarriage" is redundant. But you... your construction of "negligent transmission" is so narrow that I'm not sure it adds anything to "miscarriage", which suggests it might--
James R. Radmore: --Well, "miscarriage" doesn't mean that the mail was damaged. Mr. Justice Roberts, to your next door neighbor, it doesn't mean the mail is... maybe miscarriaged, but it's not delayed, and it's not damaged. So--
John G. Roberts, Jr.: --What about "delay"? Does "delay"... your... isn't that something that's neither within "loss" or "miscarriage"?
James R. Radmore: --No, "delayed" wouldn't be within either term. "Lost", I think, means exactly what it says, mail that's lost. "Lost" means lost.
Antonin Scalia: Right.
Stephen G. Breyer: So, if, in fact, they... the Post Office negligently delays the knowledge that would come to me in the letter, that I have 15 days to claim my billion dollar inheritance-- [Laughter] --I guess I couldn't sue.
James R. Radmore: You couldn't sue.
Stephen G. Breyer: All right. Well, suppose what they do is... this is... it seems to me this case is like a first year law school hypothetical. But, I mean, the... suppose that the... what they do is, he puts the mail on the porch, my package, and he rips it open, negligently; and there for everyone to see is the toupee that I ordered. [Laughter] And I sue... I sue for public humiliation. See? I mean, what about that one?
James R. Radmore: I have that same problem. [Laughter] It--
Stephen G. Breyer: I mean, what I... to sort of my cards on the... I was thinking, "Well, that comes close", but maybe it... maybe it is within the... within the... within the exception. I'm not sure. And then--
Antonin Scalia: I think--
Stephen G. Breyer: --I think--
Antonin Scalia: --I think you're covered.
Stephen G. Breyer: --on the other--
Antonin Scalia: I think that's negligence transmission.
Stephen G. Breyer: --On the other... no, they... see, it... he put it on the porch, which is transmitting it, in such a way that it fell open. But I'm just trying to think... and then the... on the other side of it, you have the automobile accident. And I guess he comes along the street, the postman, swinging my package around, and bops someone on the head with it. I guess that's covered. And then, this case is somewhere in the middle.
James R. Radmore: --Well, obviously, a line has to be drawn somewhere.
Stephen G. Breyer: But what's the principle according to which we're drawing it?
James R. Radmore: Well, I think anything... any claim that would arise from the unique governmental duty to deliver the mail on time and in good condition would be barred. Any--
Antonin Scalia: Excuse me--
Stephen G. Breyer: But the--
Antonin Scalia: --I don't understand your last... your last answer. You think bopping somebody on the head in the course of delivering a package would--
James R. Radmore: --Oh, no, it wouldn't be barred, because that's an ordinary tort.
Antonin Scalia: --Okay.
James R. Radmore: But the mail... in that hypothetical, the mail still arrived on time and in good condition if they bopped somebody on the head. There wouldn't be a bar--
Stephen G. Breyer: --Well, ordinary tort doesn't quite work, because I guess my public humiliation case is... could be an ordinary tort. Somebody could go up to the porch and rip it open, nothing to do with the mail. And, moreover, somebody could, in fact, delay the transmission of my inheritance. See? They could. So, all those things could be ordinary torts.
James R. Radmore: --But they don't have a duty. The difference is, in that case, if a... if a private person were to go and open up the package, or if a private person were to take your letter that showed that you had an inheritance, a private person doesn't have the duty. Only the Government has a duty to deliver the mail on time and in good condition.
Stephen G. Breyer: Doesn't it have a... in good condition. Therefore, when they put it... therefore, I guess, ripping it open is, in fact, not in good condition, so maybe that is immune. And leaving it on the porch in a position where somebody would trip over it, you might say they didn't deliver it in good condition, because what they're supposed to do is place it somewhere where you don't trip over it. And that's good condition for the delivery.
James R. Radmore: Well, it's not good condition for purposes of ordinary torts. The exception bars a claim against the Government for the contents of the package. In your hypothetical, Justice Breyer, if the toupee were damaged as a result of the package being opened, then you could not make a claim, because that was the content of the mail, but if you fell over the package, that's an ordinary tort, that's a common duty between private persons. So--
Ruth Bader Ginsburg: As is a automobile accident, and it... the Chief suggested to you that there are other kinds of people who deliver items. And that kind of negligence, you say, is within the exception.
James R. Radmore: --I'm sorry, I don't--
Ruth Bader Ginsburg: That--
James R. Radmore: --understand your--
Ruth Bader Ginsburg: --That you say--
James R. Radmore: --question, Justice Ginsburg.
Ruth Bader Ginsburg: --I'm sorry. Outside the exception.
James R. Radmore: Correct.
Ruth Bader Ginsburg: So, there, you're saying that the Post Office is just... it's just like everyone else with respect to automobile accidents, right?
James R. Radmore: Yes, Justice Ginsburg.
Ruth Bader Ginsburg: But... and... you... therefore, it should be just like everyone else with respect to this negligent delivery in--
James R. Radmore: With respect to ordinary torts. If they create... if the Post Office creates a hazardous condition, then they should be a... responsible, just as private persons are. We know that that's the purpose of the broad waiver of sovereign immunity under the Federal Tort Claims Act, is to make the Government... or to allow private persons to make a claim against the Government if there is a duty that is common to private persons.
John Paul Stevens: Mr. Radmore, I don't think you're quite correct when you say, with regard to an automobile accident, it's just like a private entity delivering mail... or delivering packages. If a private delivery service had an automobile accident that resulted in the destroy... destruction of a package, a private party could sue for the contents of the package. But that's not true with regard to the Postal Service.
James R. Radmore: That's absolutely correct, Justice Stevens. And I believe that that's really the biggest problem the Government has with their interpretation of negligent transmission, because if there's an exclusion for motor vehicle accidents, then that would mean that that exclusion would not only apply to the terms of the exception 10,000 IRS refund checks on it, and that tractor trailer is in a accident, and all of the refund checks are destroyed, well, any private person who didn't get their refund check in time, and couldn't pay their mortgage, or they couldn't pay for their credit card bill or they couldn't do something as a result of the loss of those refund checks, would be able to make a claim against the Government, as long as the loss occurred from a motor vehicle accident. They make no explanation as to why that would not be the case.
Antonin Scalia: Well, you... the... you assert that would be the case, don't you?
James R. Radmore: No, I--
Antonin Scalia: I mean, you assert that they would be able to sue.
James R. Radmore: --Oh, not at all.
Antonin Scalia: Oh. All right.
James R. Radmore: If the... any... anytime that the mail is lost, the mail is delivered to the wrong location, the mail is damaged or--
Antonin Scalia: Yes.
James R. Radmore: --delayed--
Antonin Scalia: Okay. I gotcha.
James R. Radmore: --through negligence, regardless if it's a motor vehicle accident, then the Government is protected. And so, it's--
John G. Roberts, Jr.: But I guess... I... following up on Justice Stevens' question, your theory with respect to negligent transmission is that the Postal Service should be liable in the same way that private parties are. But that theory doesn't hold up when you're talk... that's not your theory.
James R. Radmore: --That's not--
John G. Roberts, Jr.: Well, then, what is your--
James R. Radmore: --Our theory is, if there's damage to the mail, there's an exception to--
John G. Roberts, Jr.: --Well, that's--
James R. Radmore: --some--
John G. Roberts, Jr.: --I would have thought that was miscarriage.
James R. Radmore: --Damage?
John G. Roberts, Jr.: Or loss.
James R. Radmore: Well, if it was... if it was the same as miscarriage or loss, then that makes the whole term "negligent transmission" superfluous. And this Court has told us that every term in an... in the... any exception should be viewed so as--
John G. Roberts, Jr.: Well, it's only superfluous under your reading. If it covers, for example, putting the package... negligently placing the package in a location where it's going to cause injury, well, then it's not superfluous.
James R. Radmore: --Well, in a broad... that's true if you're going to read the words so broadly that... it would then make "loss" and "miscarriage" superfluous.
David H. Souter: But you're using--
John G. Roberts, Jr.: No.
David H. Souter: --You're... no, please.
John G. Roberts, Jr.: I was just... it wouldn't make it superfluous at all. "Loss" would cover loss. "Miscarriage" would cover damage. And "negligent transmission" would be transmitting it negligently, such as leaving it where somebody's going to trip over it.
James R. Radmore: But the broad interpretation that the Government asks for, and that the Third Circuit followed, was that "negligent transmission" covered anything that occurred to the mail from the time the mail was dropped off at the Post Office until it arrived at a third... to the third person. So, with that broad definition of "negligent transmission", anything that occurred, whether it was a loss of the mail, whether it was misdelivered to the wrong location, would be covered, and that would make the words "loss" and "miscarriage" superfluous.
David H. Souter: But you're taking as your prime... or a prime example of what would be covered by the exception of "negligent transmission" the package that is delivered to the right place on time and all the china inside the box is smashed. I mean, that would be an example that would fit your theory.
James R. Radmore: That's correct.
David H. Souter: Yes.
James R. Radmore: There would be a bar. The bar would apply.
David H. Souter: And you would... you would say that's supported by the... you know, the noscitur a sociis argument, because it's damage of... to the mail, or the condition of the mail, or the manner in which the mail itself is delivered, but it... that's more or less where you... where you think the exception should stop.
James R. Radmore: That's more, rather--
David H. Souter: Yes.
James R. Radmore: --than less. That's exactly where we think--
Sandra Day O'Connor: Yes, your theory is basically that the exception just deals with bad things that happen to the mail.
James R. Radmore: --Well, it also would protect the Government when there is a... either a personal injury or some kind of loss, a personal injury or an economic loss that arises from the damage or delay to the mail. You know, I think I brought up the example of the medication or if... if you had a check or a coupon bond that was destroyed. There would--
David H. Souter: But that would be, in each case... in each example you're giving, as I understand it, that would be as a consequence to a violation that affected the mail, itself, in the first place.
James R. Radmore: --Yes, Justice Souter.
David H. Souter: I lose the... I lose the money, because the mail is slow, or whatever.
James R. Radmore: Yes, Justice Souter, exactly. And if there's no other questions, I'll reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, Mr. Radmore. Ms. Millet.
Patricia A. Millett: Mr. Chief Justice, and may it please the Court-- Justice O'Connor, when you mentioned that this is a waiver of sovereign immunity and we have to construe that with that in mind, it's, sort of, central to our starting to our point for understanding this statute. This claim falls squarely within the text of the statutory exception, and there doesn't seem to be much dispute about that. And the question is whether--
John Paul Stevens: But isn't it true that it falls squarely within the word "transmission", just exactly as an automobile accident arising out of carrying... transmitting mail does?
Patricia A. Millett: --It falls with--
John Paul Stevens: They are both equally within the plain language.
Patricia A. Millett: --It falls within the word "transmission", but the relevant phrase is "negligent transmission of mail or postal matter. " And--
John Paul Stevens: Which is happening in the... in the truck when it has an accident.
Patricia A. Millett: --But what you're suing over in that case... and this is exactly the line this Court drew in Kosak... your claim isn't... it has to arise out of the negligent transmission of mail. Your claim, when the... when the delivery truck or the postal truck rear ends you, doesn't arise out of the handling of the mail; it arises out of the handling of the vehicle. There's two activities going on at the same time, and you're suing about the one, and not the other. And I think it's a... it's--
Anthony M. Kennedy: Well, suppose you have a big crate that the postman uses, because you've been away for a week and yet the mail... and he leaves a crate there, and you trip on the crate. Under your view, there would be liability, because the crate's like the... the crate isn't the mail.
Patricia A. Millett: --I think, at that point, sort of, the crate and the mail have become one thing, as if he left it in a bag or he... they put a plastic bag around it to protect it from the rain, and technically you would trip over the plastic bag, but it's the lump of mail that you're tripping over. I mean, if the crate had some bar sticking out, and all you tripped over was the bar and not the mail, then that might be a different case. But I do think that we have to look carefully at whether it arises out of the handling of the mail. And that is a distinction that protects the activity that the Postal Service is engaged in that Congress wanted to protect, the handling of the mail. It's a... it's a protection for the post, but it--
John Paul Stevens: But the key word in the statute is "transmission", not "the transmission of letters or postal matter. "
Patricia A. Millett: --The key words, I think, are the whole exception, which is "arising out of the negligent transmission of mail. " It's not "negligent activities of the Postal Service. " The text focuses... it's a protection for the post, not the Postal Service.
John Paul Stevens: But--
Patricia A. Millett: And just as if you're--
John Paul Stevens: --But if that's true, why do you need the words "miscarried"... why do you need the word "miscarriage" in the statute?
Patricia A. Millett: --I think "miscarriage" captures delivery to the wrong person, which doesn't harm the mail, itself.
John Paul Stevens: But you... but so would the word "transmission" if you... under your reading, you don't need the word "miscarriage".
Patricia A. Millett: What... "transmission" adds a lot... I think if you look, sort of, sequentially, the way Congress was thinking... and it may not have been at, sort of, this level... but "loss" is mail that doesn't go anywhere, it doesn't get there. "Miscarriage" gets to the wrong person. "Transmission" gets to the right person, but something went wrong in the process. And so, if you look at it that way, yes, there's no doubt there's overlap, but "transmission" captures a lot more than just "miscarriage". It is important to understand that--
Antonin Scalia: It covers damage, for one thing.
Patricia A. Millett: --It covers--
Antonin Scalia: You--
Patricia A. Millett: --It covers damage. It covers--
Antonin Scalia: --Which "loss" doesn't, and "miscarriage" doesn't.
Patricia A. Millett: --Absolutely. And the same delay may, or not, be with them. But the other thing that Petitioner's theory doesn't capture... they're two very important things. One is the decision to admit things to the mail in the first place. If it ends up being a letterbomb or, unfortunately, anthrax, or biohazards... I mean, we ship poisons, we ship medical specimens, we ship live alligators. I mean, every... you wouldn't believe what goes into the mail. [Laughter] And there has to be some protection for that decision to admit things into the mail in the first place. The other thing it doesn't capture is the very important decisions that post... the Post Office has to make about getting the mail to someone on time. Part of that is how I get it there. And it's... it includes not just how I get the millions of packages every day that don't fit in a mailbox or a mail slot to their customers; it includes how, after a hurricane, we decide to deliver mail outside the Superdome or to people whose mailboxes have been blown off of their houses.
Stephen G. Breyer: So, how does it hurt you, say, in the live alligator, et cetera, case? If the Court says... well, anything that's special in respect to transmission of live alligators, because it's the mail, et cetera, delayed... or I... I don't know how else you'd get a tort out of it. But if it's simply the kind of thing that anyone could do, like driving a postal truck or leaving something on a porch that somebody trips over or walking along the street swinging the live alligator over your head, or whatever you do-- [Laughter] --that kind of thing that anybody does just coincidence its the postman whose doing it... that kind of thing doesn't mean to fall within the "transmission". Now, suppose that that was the holding. How would the Government be hurt?
Patricia A. Millett: First of all, that... if the... if the exception, as I understand it, is that of harms to or from the content of the mail, that isn't going to--
Stephen G. Breyer: What we'd look to is, you'd look to the purpose of this. The purpose of it was, basically, I gather from the history, as recounted in Kosak... in what the Court said in Kosak... the purpose of this is to try to bring back into sovereign immunity, so you're not sued all the time, the very kind of common suit that a person could protect himself for the loss by registering the package, by taking out this ordinary transmission insurance, which is not that hard to do. So, they said, if we start opening it up to misdelivery claims, all that pack... family of things, everybody'll say, "Hey, you hurt my pet, you didn't give me the check. " I mean, all kinds of things will be opened up. But the Government's already liable for what I'd call the "swinging the package around", leaving it... slip and fall, trucks. So that falls on the other side. Now, how does that hurt you, the Government, if that's how we'd come out?
Patricia A. Millett: --It hurts us... I mean, my starting point, first of all, is this text, and not legislative history or purpose--
Stephen G. Breyer: Well, you can't get too far--
Patricia A. Millett: --which is--
Stephen G. Breyer: --with the text. I think you have a great claim, and so does the other side; but if it's just the text, that's not my question.
Patricia A. Millett: --Okay. But I--
Stephen G. Breyer: The question is, If I think the text is perfectly ambiguous on this, I look to the purpose, suppose I came out the way I just said. How would the Government be hurt? is what I want to know.
Patricia A. Millett: --What the Government is hurt by is the fact that you're... some... you're allowing torts for the one activity that is distinct to the Postal Service amongst governmental agencies, and that is the act of delivering. That is what the transmission exception protects. When you're... when you're driving a vehicle, the postal employee is making the... is not making mail specific judgments. The postal employee is making the same judgments that I made driving to work today and that everyone else on the road makes. But when you are making decisions about how to deliver 660 million pieces of mail a day to 142 million different locations... the bottom of the Grand Canyon, remote Alaska, and urban cities... that... to get that job done, you have to be able to make judgments about the actual act of delivery. And--
Anthony M. Kennedy: Well, how is mail--
John G. Roberts, Jr.: And what if it's for--
Anthony M. Kennedy: --mail specific any different than the grocery boy... I mean, than the grocery specific, under your view?
Patricia A. Millett: --No, but it's clear that Congress wanted to capture negligence. I mean, it's the... it... the fact that... there has to be an analog to private people, or we're not in the Federal Tort Claims Act land anyhow. The question is, Which of those activities? And the text focuses on--
Anthony M. Kennedy: But you're--
Patricia A. Millett: --the actual--
Anthony M. Kennedy: --But you're saying... you're... you want us to say that mail is somehow unique. But it isn't. There's all kinds of delivery.
Patricia A. Millett: --It... whether or not it's unique, Congress focused on the presence of mail in a mail specific judgment. That's how we read--
Anthony M. Kennedy: But I'm saying--
Patricia A. Millett: --the text--
Anthony M. Kennedy: --it's not mail specific, because all delivery people have the same problem.
Patricia A. Millett: --The mail--
Anthony M. Kennedy: So, why is it mail specific?
Patricia A. Millett: --First of all, the decision to put it into a mailbox is a uniquely postal--
Antonin Scalia: Well, and letters are carried in a mail truck, but we allow a cause of action for negligence of the driver of the mail truck. That's unique to mail, too.
Patricia A. Millett: --Drive the... driving is not unique to the mail. It's not, even amongst agencies, let alone amongst private parties. The... what--
Antonin Scalia: You're leaving something--
Patricia A. Millett: --And it--
Antonin Scalia: --That was the very point, leaving something on the porch where somebody can trip on it isn't unique to mail--
Patricia A. Millett: --It doesn't--
Antonin Scalia: --just as driving a truck isn't.
Patricia A. Millett: --It doesn't have to be unique to mail. If it is unique to mail, if there's no private party analog, the Federal Tort Claims Act doesn't apply, by its own terms. But what... I mean, there is a distinct and unique postal act of putting things into the mailbox.
Stephen G. Breyer: So, if--
Patricia A. Millett: And if it--
Stephen G. Breyer: --in fact, you have a driver of the truck, the postal truck, and what he does is, he puts the mail in the truck, so my skis, which I have shipped by mail, happen to stick out the side, and, as he walk... drives along, he just mows down the pedestrians. [Laughter] I take it, on your theory, that that... there is no lawsuit.
Patricia A. Millett: --The... if your damage... harms to and from the mail, yes. Yes, that is our position. If he mows 'em down with his arm or with his rearview mirror on his truck, your... the liability attaches. But you asked why it is important, Justice Breyer. And one of the reasons it's very important is to look at these types of claims. The Postal Service is defenseless. We are essentially defenseless when we get one of these claims. Unlike a vehicle accident, where we are a party to it and know what happens when it happens, this type of injury, we may not know about for up to two years after--
Anthony M. Kennedy: Well, let--
Patricia A. Millett: --it happens.
Anthony M. Kennedy: --let me ask you about defenses. And it goes a little bit beyond the suit, but, as I... I read through the regulations, and it's the duty of the occupant, or the recipient, of the mail to provide a box or a letter slot or something. Would the failure to do that, so that they just have to put it on the porch... is that a defense?
Patricia A. Millett: I'd--
Anthony M. Kennedy: Let's assume there's liability.
Patricia A. Millett: --Uh huh.
Anthony M. Kennedy: Let's assume that your interpretation of the statute does not prevail here. Does the Post Office have a defense if the person doesn't provide a mailbox, as the regulations require?
Patricia A. Millett: I'm not going to say here that we wouldn't have some defenses that me may want to invoke at a future time, but I'm not very optimistic, because I think the fact that you... they may not have a box doesn't mean that we could put it... assuming your theory that we're liable... put it somewhere negligently--
Anthony M. Kennedy: Is--
Patricia A. Millett: --as opposed--
Anthony M. Kennedy: --Are there--
Patricia A. Millett: --nonnegligently.
Anthony M. Kennedy: --Are there regulations requiring that the mail be put in a reasonably safe place? And by that, I mean reasonably safe for the occupant, not reasonably safe for the mail.
Patricia A. Millett: It--
Anthony M. Kennedy: You... because you quote... you quote, on page 2, the footnote... you quote the regulation. But I read that, that it has to be reasonably safe for the mail, because it says, "Oh, you can leave it on a stairway or under a porch, just so long as it's safe for the mail. " That's the way I read that one.
Patricia A. Millett: --I mean, I think they make the... as a practical... is there text in the Domestic Mail Manual that specifically says, "Put it where somebody won't slip? " No. I think it's the same judgment that's being made. They're making the best judgments that they can, but there is... you know, they're, sort of, caught between them. So, they need to put it somewhere where it's sheltered, and that tends to be close up to buildings. And the problem is, it's not--
Anthony M. Kennedy: Well, I guess my point--
Patricia A. Millett: --once it's on the--
Anthony M. Kennedy: --my point is, if there's a duty, then it seems to me the Post Office is used to making these judgments. And if it does not make the correct judgment, it can be sued.
Patricia A. Millett: --Well--
Anthony M. Kennedy: I'm not saying--
Patricia A. Millett: --The--
Anthony M. Kennedy: --that you're creating a cause of action.
Patricia A. Millett: --Right.
Anthony M. Kennedy: I'm just saying that you're not--
Patricia A. Millett: The except--
Anthony M. Kennedy: --that much different than any institution faced with slip and fall cases.
Patricia A. Millett: --The except... it is different... the exception applies whether we do it negligently or nonnegligently. And so, the fact that we didn't happen to do it, at least allegedly, negligently in this case isn't what... can't be what triggers the exception. And what is different is, you... understanding, as a practical matter, what the postal carriers are supposed to do millions of times every day when the mail doesn't fit--
Stephen G. Breyer: But are... you got the... well, that's exactly the point I'd like you to hone in on, because I don't see what's... you say, "Well, we're defenseless". Why are you more defenseless than any other business that leaves things on porches? That might be, you know, 482 million apple deliverers or Domino Pizza people. I don't know. Or they... they ring the bell, probably, but some... McDonald's hamburgers, lots of... department stores. I mean, a lot of people leave things on porches. So, why are you more defenseless than they?
Patricia A. Millett: --Because... because we... first of all, we leave it there for 37 cents, and we leave it in a volume... 660 million pieces of... a day. FedEx and UPS aren't even in the neighborhood--
John G. Roberts, Jr.: --Well, are you talking about--
Patricia A. Millett: --of that amount.
John G. Roberts, Jr.: --You're talking about letters, though, right? I mean, I... they... is FedEx and UPS in the neighborhood when you're talking about packages--
Patricia A. Millett: No.
John G. Roberts, Jr.: --of the size that have to be left--
Patricia A. Millett: No. We--
John G. Roberts, Jr.: --on the porch?
Patricia A. Millett: --660 million includes letters and packages.
John G. Roberts, Jr.: Right.
Patricia A. Millett: UPS does, I think, about 12 million a day; FedEx, about 5 million.
John G. Roberts, Jr.: Well, what's the Postal Service number for large packages?
Patricia A. Millett: Large? I mean, they... they don't count it by large--
John G. Roberts, Jr.: Yes.
Patricia A. Millett: --medium, or what will fit inside the mailbags. I simply can't give you a number--
Stephen G. Breyer: All right. Well, that's--
Patricia A. Millett: --on that. But--
Stephen G. Breyer: --that's what people are likely to trip over. I mean, they're not likely to trip over a letter.
Patricia A. Millett: --A number of letters bundled... I wouldn't... I wouldn't be surprised to see what could happen if, in fact, the liability is allowed. If you're... you know, you go to put it into the mailbox, and a piece slips out of the mailman's hand and lands on the porch, and it's one of those cellophane envelopes, and it's slippery. I mean, that's--
Ruth Bader Ginsburg: Do we have any sense--
Patricia A. Millett: --maybe all that it takes.
Ruth Bader Ginsburg: --of how many claims of this nature there are? I know we do have the Second Circuit case, on one side. And, by the way, I didn't notice that you refer to the Second Circuit decision in your brief. Did you?
Patricia A. Millett: I--
Ruth Bader Ginsburg: It--
Patricia A. Millett: --don't remember.
Ruth Bader Ginsburg: --goes--
Patricia A. Millett: I know it was in our brief in opposition, but I don't recall if I did in this.
Ruth Bader Ginsburg: --In the brief here... well, it's... it surprised me that there were those two cases. But, do you have any notion of how many slip and fall, trip over mail cases... claims are filed?
Patricia A. Millett: I can give you a rough estimate. There are... there are 700... about 700 slip and fall cases a year, but the vast, vast majority of those are slipping in a building on, you know, a slippery floor, which we concede liability for. Probably, you know... less than a dozen, around ten or so a year, thus far. But--
Ruth Bader Ginsburg: You concede--
Patricia A. Millett: --we've been able to--
Ruth Bader Ginsburg: --liability for a slippery fall in the Post Office.
Patricia A. Millett: --Yes. We--
Ruth Bader Ginsburg: Yes.
Patricia A. Millett: --concede liability for that, because that... just like... that's not handling of the mail, that's handling of a building or handling of a vehicle, which we see different from handling of--
Ruth Bader Ginsburg: Well, there was--
Patricia A. Millett: --the mail.
Ruth Bader Ginsburg: --there was, in one of the briefs, an example where there's a puddle created by the janitor. The Post Office is liable. It's... relates to taking care of the building. There's a parcel of mail that has a liquid in it, and it's dropped, and the puddle is created by the that. No liability. And you agree that that would be the result?
Patricia A. Millett: If we break... if we break... whatever damage is done to the mail, and the package in the mail, the liquid in the mail cannot be sued over. That is... and I think Petitioners agree... damage to and from the mail--
Ruth Bader Ginsburg: So, you agree--
Patricia A. Millett: --is our conception.
Ruth Bader Ginsburg: --that that hypothetical--
Patricia A. Millett: Yes.
Ruth Bader Ginsburg: --is correct? And there's another one that they gave. The letter carrier comes. He's got a mailbag filled with mail, dumps it on the street while he takes a rest, somebody trips over it. That's case one. Case two is, he's finished making his rounds, and he dumps the sack on the street, it has no mail in it, and somebody trips over it. On your theory of the case, would there be liability in both situations or only in the one where the mailbag was stuffed full of mail?
Patricia A. Millett: If you're tripping over mail, and the mail bag has mail in it, there's no liability. You're harmed from the mail. If it's from mail apparatus or, you know, a postal employee's leg sticking out while they're sleeping, then we will admit liability for that. The focus... our view of the focus of this exception, I think, by its text... and this is exactly what the Court said in Kosak... is on the handling of the mail, and that is a very important line for the Postal Service. They have to make hard judgments--
Antonin Scalia: Except that you... my biggest hangup... and I wish you'd go through your distinguishing of it again... is the... is the Kosak case. Carrying the mail in a mail truck is the handling of the mail. There is no doubt that it's the handling of the mail. And it seems to me it doesn't... it isn't enough to say, "Well, other people drive trucks, too. " Well, that's true. But other people deliver packages, too, and leave 'em on the doorstep. How do you distinguish Kosak?
Patricia A. Millett: --I think... in... first of all, it's just dicta in Kosak, which, in fact, construed the customs exception to include both... you know, not to turn upon the type of damage that ensued, so we actually are asking for the sort of same analysis of the holding in Kosak... the dicta in Kosak about motor vehicles is different... I think if I could just... for the logical reason, if someone rear ends you, you don't--
Antonin Scalia: Excuse me.
Patricia A. Millett: --Uh huh.
Antonin Scalia: You're... I assume the Government has conceded Kosak, the dictum in Kosak.
Patricia A. Millett: Yes.
Antonin Scalia: Now, do you concede that point, or not?
Patricia A. Millett: We--
Antonin Scalia: If you concede the point, it doesn't matter whether it's dictum.
Patricia A. Millett: --I agree, but--
Antonin Scalia: So, you--
Patricia A. Millett: --I wanted to point out that the holding--
Antonin Scalia: --you are trying to draw a distinction between driving the mail in the truck and leaving the mail on the doorstep. What's the basis for that distinction?
Patricia A. Millett: --And that language has to be read against the backdrop of the holding of Kosak, which recognized that when you have exceptions that are written in these broad terms, the form of the injury, the particular type of personal injury... there, it was property injury... that ensues doesn't change whether the exception applies. Motor vehicles are different. If you're rear ended by a truck, you don't jump out and say, "Hey, you negligently transmitted the mail. " You say... you jump out and you say, "You didn't... your brake lights weren't working. " "You didn't signal". Those are... there are not judgments about the handling of the mail being made that the claim arises out of. You're not suing about how we handled the mail; you're suing about how we handled motor vehicles. Yes, at--
John G. Roberts, Jr.: But if the--
Patricia A. Millett: --30,000 feet, it's all--
John G. Roberts, Jr.: --But if the postman throws the box onto the porch and hits somebody there, you say that's within the exception?
Patricia A. Millett: --Yes, that's... if we--
John G. Roberts, Jr.: But you don't say, "Hey, you hit me with the mail. " right? You say, "You hit me with a box. "
Patricia A. Millett: --Your claim arises out of how we handled the mail, not how handled a vehicle, not how we handled a building, not how we handled--
John G. Roberts, Jr.: Your claim--
Patricia A. Millett: --mail apparatus.
John G. Roberts, Jr.: --arises out of how he handled the box, just like--
Patricia A. Millett: Yes.
John G. Roberts, Jr.: --in the other case it arises out of how he handled the vehicle. You don't care whether it's the mail or not. By the same token, when you trip over something... a box... you don't care whether it's a mail box or if it's the box from UPS. And yet, in your case, it makes all the difference in the world.
Patricia A. Millett: Perhaps I misunderstood. If... I thought the box was the mail, itself, that you're throwing--
John G. Roberts, Jr.: Yes.
Patricia A. Millett: --out of... and if the box... but your injury arises... if it's to or from the mail--
John G. Roberts, Jr.: Right.
Patricia A. Millett: --it's within the exception. And, yes, there are fine lines, as with any of these distinctions. In practice... in practice... for the practical reason that you don't have the sheer volume of claims, against which the Postal Service is largely defenseless, that you have when you start talking--
John G. Roberts, Jr.: I suppose your--
Patricia A. Millett: --about delivering--
John G. Roberts, Jr.: --defense affects the process. In other words, you would, more and more, be leaving those... the little slips of paper saying, "Go down to the Post Office and pick up your package. " rather than leaving the package on the porch.
Patricia A. Millett: --I think that's exactly right. And it's hard to... I mean, that is... you know, what happens here when I show up with oversized mail, as a mail carrier? I've got the choice of delaying your receipt of the mail by taking it back to the Postal Service, inconveniencing you, making you come downtown. That act is within the exception. I can try a person to person delivery. But the Postal Service went away from that, for logical reasons, because that will delay everybody else's mail, and there's no liability for all of those delays. If you set this same package down, and it has medicine or food in it... it says... marked "perishable" on the outside... it's in the sun, it goes rotten, the person gets sick, there's no liability. But the... this is a protection for an activity of the Government, like the... many of the other Federal Tort Claim Act exceptions. And the protection for that activity is an upfront protection that doesn't turn on the happenstance of which particular form of injury is manifested at... hours later. And it's an important reason, as I said, not only for the sheer volume of claims that we could face if this is opened up on how we deliver, but all... our inability to defend, when, two years later, we simply do not... unlike FedEx or UPS, or probably the pizza delivery, we can't recreate, months later, how we delivered the mail--
Anthony M. Kennedy: Yes, but you're--
Patricia A. Millett: --unless it's registered.
Anthony M. Kennedy: --you're using the word "deliver", but the statutory word is "transmit". And... are there other statutes or regulations in respect to the Post Office that talk about "delivery"?
Patricia A. Millett: There--
Anthony M. Kennedy: Is the word... because it seems to me... the omission of "delivery", it seems to me, is a real problem for you, in your theory of the case.
Patricia A. Millett: --No, I don't think so. And, as we chronicle at length in our brief, both through history and contemporaneously, the use of the word "transmit" and "transmission" in postal services is commonplace, and it means delivery to... it means getting something to the person. Congress has consistently used "transmission" that way. And the other thing I would like to bring you back to is, understand that the reason the vehicle distinction worked... one of the reasons Congress would have expected that is, that had happened before in history. We show, again in our brief, a number of cases. For a long time, there have been distinctions between allowing liability for... and back then, it was stagecoach drivers that drove too fast through town. And those cases were held... you know, when you... when you held someone liable for driving too fast through town, that was held not to be a stoppage of the mail, stoppage of the transmission of the mail. But when you tried to regulate, more fundamentally, how the Postal Service decided to do its deliveries, and whom it would authorize to undertake the delivery, that was held to interfere with the mails. And I think--
Stephen G. Breyer: What about... but I'm surprised that there's no empirical examples of what... well, I would think it would have happened, in 50 years and tens of millions of packages, that a package falls off a truck. You know, the next driver veers somewhere and gets into an accident, and they say it was the... it wasn't packed properly. I think should have happened sometime in the Post Service over... Postal Service over 50 year. My guess is, it did happen and you just paid.
Patricia A. Millett: --My guess is that we did not pay, because that--
Stephen G. Breyer: Really?
Patricia A. Millett: --would be an injury rising--
Stephen G. Breyer: Is there any--
Patricia A. Millett: --to and from the--
Stephen G. Breyer: --Do we actually know, either of us? I don't, I confess. Do you... do you--
Patricia A. Millett: --I don't, off the top of my head, but I... you know, the distinctions that... in talking with the Postal Service here, I mean, it may... it... one would... think it might have happened, but perhaps it hasn't. Hopefully, it hasn't. But, if it has, I mean, it's a fine distinction. And any tort... you know, a first year tort student knows that tort lines can, you know, give rise to difficult analysis at times. But if you understand that what Congress was trying to protect here was the movement of the mail and the handling of the mail in a way that the Postal Service does--
Antonin Scalia: Yes, but I don't--
Patricia A. Millett: --that really no one else--
Antonin Scalia: --I don't understand your last distinction. You say there is no liability for the package that falls off the back of the truck, but there is liability if the truck hits another vehicle. I really don't understand the basis for that distinction.
Patricia A. Millett: --The claim for the... if we're assuming it's a mispacking of the mail into the truck, is the--
Antonin Scalia: Right.
Patricia A. Millett: --is the claim--
Antonin Scalia: Which happens all the time in other trucks, not just mail trucks.
Patricia A. Millett: --then that is... that is an... I mean, plain text of the statute, that is a... an allegation that we negligently transmitted the mail. We handled it negligently in how we packaged it. And--
Antonin Scalia: But you can say the same thing about the driving of the truck that contains the mail.
Patricia A. Millett: --You can say that, but what... when someone's... you know, sues, what they're upset about is how you handled the vehicle, not how you handled the mail. Yes, at 30,000 feet, you can look at this and say it's all transmission. But Congress was looking at this as, sort of, on the ground level. And, in practical experience, the... the person who was hit by the mail truck doesn't care if there's mail in there or not. Their injury is completely unaffected... the presence of mail is incidental, irrelevant--
Antonin Scalia: Same thing with the--
Patricia A. Millett: --to that liability.
Antonin Scalia: --same thing with the person who veers to avoid the package that falls off the back of the mail truck.
Patricia A. Millett: No, but that... what they've been injured by... the presence of mail is the cause of the accident--
Anthony M. Kennedy: But that does--
Patricia A. Millett: --and the way it was packed--
Anthony M. Kennedy: --but the person who trips doesn't say, "Oh, this really hurts me because it's mail instead of a box of oranges. " does he?
Patricia A. Millett: "Who put this mail here? " "This is... this is... mail shouldn't be here. " I mean, you have... a simple way of looking at it is, you have two things going on at the same time in the car, in the vehicle. You've got the regular activity of driving, and you've got the transmission of mail. But when you come to the porch, you have one activity, and one activity only.
David H. Souter: No, but--
Patricia A. Millett: And that is transmission--
David H. Souter: --your argument, as I understand it, on the... on the truck accident and on the package that falls out of the truck... is that the fact that mail transmission is going on at the same time is utterly irrelevant to the cause of the damage. And isn't it equally open to the... isn't your position equally open to the argument that, when the person trips over the package on the porch, it is utterly irrelevant that that package has been placed there by a postal employee and has been carried in the mail? It is in the same... it has the same character, vis a vis tripping, that a brick or a rock or any other package might have. So, if you're going to be consistent with respect to the passage of the truck, the package that drops out of the truck, and the piece... and the package on the porch, don't you have to say it is irrelevant that the package in the porch has been carried in the mail and put there by a postal employee? It's its character of package at that place that matters.
Patricia A. Millett: --It's the character as mail that matters. Mail that's been in transmission is what matters. And this--
David H. Souter: No, but you can say... then you can say exactly the same thing about the package that falls off the truck. You can characterize that. You can say, "Look, it wouldn't have been in the truck if they weren't delivering mail. "
Antonin Scalia: She says that.
Patricia A. Millett: --What direct--
David H. Souter: Pardon me? But you... and you could say that there wouldn't have been any accident with the truck if the truck hadn't been delivering mail.
Patricia A. Millett: --It may not be delivering mail at the time it has an accident with you. There's no way the delivery of mail occurs without the actual delivery of mail. That's the point. But, again, you have a text here that does not admit of distinctions based on what kind of injury happens two hours later, whether it's spoiled food, an exploding package, or a trip. And if it's difficult... this is a waiver of sovereign immunity. And the fact that this is in the text, this case doesn't involve a vehicle, and that this case raises serious concerns for the Postal Service about how it's going to handle an enormous--
John Paul Stevens: But can I just--
Patricia A. Millett: --volume of mail.
John Paul Stevens: --this question? The case is a little bit on the border, because it's a slip and fall, and it does... there may not have been negligence. We... but we're assuming, via the allegations, they're true. But your position would apply to an intentional tort, as well as a negligent tort, I think, wouldn't it?
Patricia A. Millett: Not if it's transmission of the mail, because the exception only applies to negligent transmission of the mail. And so, if we intentionally bop you over the head with the package, that would not be within--
John Paul Stevens: I see.
Patricia A. Millett: --the exception.
John Paul Stevens: Okay.
David H. Souter: Would that... this is neither here nor there, I guess, but would that be within the waiver?
Ruth Bader Ginsburg: Negligence--
David H. Souter: It's--
Ruth Bader Ginsburg: --Intentional--
David H. Souter: --It's--
Ruth Bader Ginsburg: --torts aren't covered--
David H. Souter: --Yes.
Ruth Bader Ginsburg: --by it, are they?
Patricia A. Millett: No, actually negligent or wrongful acts are covered. There's 2680(h), which covers a number of intentional torts and... it's often referred to as the intentional tort exception. But, actually, it wouldn't cover... the... bopping with a package would probably be assault. But if we deliver a package that has anthrax in it, I don't know that that would be covered. Maybe we would try and argue--
David H. Souter: Well, only--
Patricia A. Millett: --that's fault of the--
David H. Souter: --because you weren't intention... your--
Patricia A. Millett: --Right.
David H. Souter: --intent was not to deliver anthrax.
Patricia A. Millett: Right. But not all--
David H. Souter: But if the intent is to hit the person with the alligator that you're swinging--
Patricia A. Millett: --But not... right.
David H. Souter: --that would be an intentional--
Patricia A. Millett: But not all--
David H. Souter: --tort in--
Patricia A. Millett: --intentional torts fall within 2680(h). If I don't like you, and I intentionally deliver your mail to your neighbor, knowing that it's got your inheritance information in it, I don't think that would fall within 2680(h), which normally... it's essentially... largely encompasses interference with contracts rights instead of physical assault, battery, those types of claims. But, again, I think it's very important to keep in mind here that we do have... we have text... this is a waiver of sovereign immunity, and that this falls within the text. There are two ways of looking at it. Their way does not capture important things to the Postal Service. It doesn't seem to capture what is admitted into the mails, and it doesn't seem to capture the important decisions that are made... it may not seem so important, in this one case, to have put the mail on the porch, but multiply it by tens of millions of times a day when that decision is made, and the decision that that balance, of putting things there in a sheltered way, hopefully that will both protect the mail and the people, instead of either reverting to person to person delivery for all oversized mail or making people come down, like the old days, to the Post Office to pick it up. Thank you.
John G. Roberts, Jr.: Thank you, Counsel. Mr. Radmore, you have 7 minutes remaining.
James R. Radmore: Just one point. The choice of what to take into the mail would be covered by the discretionary function exception of the exceptions to the Federal Tort Claims Act. So, I think that's a red herring. And with that, if there's no questions, the Petitioner will waive the remainder of his rebuttal.
John G. Roberts, Jr.: Do you have any... I mean, you'll be responsible, if you prevail, for all of us having to go down to the Post Office every time we get-- [Laughter] --packages. I mean, it there--
Patricia A. Millett: Well, then I'll probably--
John G. Roberts, Jr.: --do you have any response to that policy concern? [Laughter]
Patricia A. Millett: --Then I'll probably be subject to some intentional torts, myself. [Laughter]
Ruth Bader Ginsburg: What about the practical problem that was raised that, in the automobile accident, there's witnesses, there's a police report, usually; but a slip and fall over mail, nobody's around, these are easily made up, and the Post Office has no opportunity to check?
James R. Radmore: The Post Office has every opportunity, just as in any ordinary tort. All the defenses apply. In this particular case, the Post Office... and it's been alluded to by several Justices... would be that they have the defense of contributory negligence. They would have any defense that would be available--
Ruth Bader Ginsburg: But the point that... I think that they were making is that there will be an investigation, on the spot, ordinarily, in the case of a vehicle collision. Post Office won't even know about the slip and fall until a claim is filed, which could be weeks and weeks later.
James R. Radmore: --But that's... that's the situation in any tort. There doesn't have to be a police report, necessarily, in an automobile accident. And in a... any slip and fall or any tort, beyond the motor vehicle accident, it's the same situation. It's not unique to the Post Office.
John G. Roberts, Jr.: Yes, but the volume is unique. In other words, there aren't going to, in a typical case, be a lot of witnesses, and the volume is unique. And you can't bring the postal carrier in, two years after the fact, and say, "Do you remember where you placed this parcel on this porch on this day? "
James R. Radmore: That's what you'd have to do to a UPS or a Federal Express employee. And I believe Solicitor General's response to Justice Ginsburg question about the number of claims that you have a year... I believe the Solicitor General said situations like this arise ten times a year. And the Postal... the Post Office's own handbook dealing with the handling of negligence cases sets forth procedures and policies that deal exactly with this type of circumstance. If we were to look at the handbook... I think, Justice Kennedy referred to the handbook, and that section 141 of the Postal Investigation Handbook talks about claims that arise for personal injury or property damage during the delivery of the mail. So, at least since... and that's been... that was put in place in 1992, so we at least know, for the last 13 years, that they've anticipated these type of claims. And, according to the Government, there's only been ten a year. So, I don't think that there's a real concern by the Post Office that there's going to be some... a floodgate of litigation opened up.
John G. Roberts, Jr.: Thank you, Counsel. The case is submitted.


Warren E. Burger: We’ll resume arguments in number 72-671, Espinoza against Farah Manufacturing Company. Mr. Carr, I think you have about 25 minutes remaining.
Kenneth R. Carr: Thank you, Mr. Chief Justice and may it please the Court. Yesterday at recess, we were examining some of the factors that the Congress had before at the time it passed the Civil Rights Act of 1964. We’d looked at the fact that the Federal Government operating under the same prohibitory languages as is contained in Title VII of Civil Rights Act, so no inconsistency for 21 years in applying the same policy that Farah applies. Then we were in process of looking at the fact that some 19 State Fair Employment Practice Commissions as of 1964 had addressed themselves to the question of whether they under their own FEP legislation barring discrimination on the basis of national origin or national ancestry, an employer could nevertheless require that his employees be citizens and of those 19 states, 18 had found no inconsistency in the policy. Then we turn if we may to the debate surrounding the 1964 Act itself, and of course, the very first thing we’re faced with is the remark of Congressman Roosevelt who is Chairman of the House Subcommittee which reported out what became the Civil Rights Act and in the course of being questioned on the floor of the House with regard to what national origin meant, he said, “I just made very clear that national origin means national. It means the country from you and your fore bearers came from. You may come from Poland, Czechoslovakia, England, France or any other country.” And with that, the subject was dropped. Now, in his brief, Mr. Cooper points out that this is isolated, that there’s only one such illustration in the debate and I might suggest there that the reason is because the reason was so obvious that once answered in the normal understanding of the word, there was no further necessity for expanding them.
Potter Stewart: Well how does that affect -- how did Congressman Roosevelt’s words bear on this issue or help your case?
Kenneth R. Carr: Because Your Honor, they hold that the national origin prohibition in the Act means that it’s unlawful for Farah in the facts of this case to discriminate against people on the basis of the fact that they or their ancestors came from Mexico. The facts in this case clearly show that there has been no such discrimination. Rather the discrimination, and it exists, there is discrimination, no question, is based on the fact that the person was not a citizen of the United States. Now, under Congressman Roosevelt’s language, if Farah had a policy of hiring nationals from Poland, from Czechoslovakia, from England and France, but not nationals of Mexico, then there would be discrimination on the national origin of the individual and it would clearly be prohibited. But everybody acknowledges and all the facts stand clear that that’s not Farah’s policy. The only other reference to somewhere to this that we were able to find was in the debates or the hearings before Congressman Roosevelt’s committee where then Secretary of Labor, Willard Wirtz was described in the Federal Policy of complaint processing on the grounds of employment discrimination within the Government. And Secretary Wirtz’s attention obviously was primarily with regard to racial discrimination, but then he turned to national origin and religious discrimination and he said, “For example, if a person feels that he’s been disadvantaged because he is of Mexican, Italian or Polish origin, then he files a complaint with the commission and proceeds.” Now, obviously, it was implicit in what Secretary Wirtz was saying that every single one of those people were United States citizens. They wouldn’t even been employees of the Federal Government if they weren’t. Section 701 (b), which has now been -- of Title VII which is now recodified into 5 U.S.C. 7151, declares that it is the policy of the Federal Government not to discriminate on the grounds of national origin and yet, no one understood that this was changing the federal policy. It was only making statutory what’s theretofore been the rule by Executive Order and everyone understood that the Federal Government was still going to limit its employment practices -- employment hiring to United States citizens. And indeed, I’ll direct your attention if I might, to the brief filed herein on the motion for a certiorari filed by the Solicitor General where he says that the US agrees with the Fifth Circuit’s interpretation that Congress construed the phrase to mean ancestry rather than citizenship, and then he makes the obvious point in a footnote that surely Congress intended that the same meaning be applied to Section 701 (b) of Title VII as it applied in Section 703 (a). The words --
Byron R. White: Technically, I suppose, you could say there is a discrimination against people who were born abroad in the sense that -- or against people who weren’t born in this country, who didn’t originate in this country?
Kenneth R. Carr: I agree, Your Honor.
Byron R. White: Technically, that is because those people who were born abroad have to satisfy an employment qualification that people born here don’t?
Kenneth R. Carr: That’s right but the --
Byron R. White: And, now technically, that’s it. So your argument has to be that isn't what Congress intended?
Kenneth R. Carr: Well, right and --
Byron R. White: And I’ve said, this is substantial discrimination, isn’t it? I mean, it’s a substantial qualification.
Kenneth R. Carr: It is. No question about that.
Byron R. White: It takes -- how long does it take to be naturalized?
Kenneth R. Carr: Depending on the circumstances, I think it’s three to five years. I think --
Byron R. White: So, you just don’t get a job in this country with the Federal Government or with your client for quite a while?
Kenneth R. Carr: That’s correct and I’d say frankly, Your Honor, that if more companies had the policy that Farah has, Congress would probably see fit to change the law. What we’re suggesting is that so far, they haven’t.
Byron R. White: So, your argument is it's strictly a Congressional intention or --
Kenneth R. Carr: Precisely. And I think that’s the only issue before this Court.
Byron R. White: So, it isn’t a -- well, you don’t think the 1981 argument is there?
Kenneth R. Carr: No sir, I don’t for a number of reasons.
Byron R. White: Would you have some problems with that?
Kenneth R. Carr: A few but not major ones, Your Honor. 1981 of course, as I think, for the reasons that both Justice Blackmun and Justice Marshall pointed out yesterday, is not before us. But even if it were, the courts that have faced the question with that one single exception have held at Section 1981 does not apply to national origin discrimination. They do so primarily on the basis that Mr. Justice Stewart’s decision in Jones versus Meyer --
Byron R. White: You mean, a power of question. They couldn’t have used the Thirteenth Amendment, they had to use the Fourteenth which means a State action?
Kenneth R. Carr: Correct. Either way, if they used the Thirteenth by the terms it applies only to racial discrimination. If they used the Fourteenth, then it applies to State action.
Byron R. White: What about the immigration power?
Kenneth R. Carr: We’re not suggesting here, Your Honor, that the Congress could not outlaw or prohibit Farah’s policy under the immigration policy. It could. We only suggest that so far, it hadn’t.
Byron R. White: Well, I know, but do you think it’s the practice of the Courts to invalidate an act of Congress that would be valid under power X just because Congress purported to use only power Y?
Kenneth R. Carr: Well, Your Honor, it’s clear that Congress understood that it was acting pursuant to one. I think that sheds real light on the Congressional understanding of what they are purporting to do.
Byron R. White: I see.
Kenneth R. Carr: I don’t need to bother the Court really with it.
Byron R. White: I’m sorry, I brought it up.
Kenneth R. Carr: The cases that have held that 1981 does not apply to a racial discrimination, it’s interesting that the only case and it’s cited in Mr. Cooper’s brief that holds to the contrary is Guerra versus Manchester Terminal which is now on appeal to the Fifth Circuit, and I think it will be reversed. But even Guerra recognizes that the Act was found -- that Section 1981 was founded on the Thirteenth Amendment. I think for that reason, Guerra is clearly wrong and I think the Fifth Circuit will reverse it. To expand a little further on the suggestion of what the view of the United States. It’s been the policy for a number of years of the United States to put in various appropriations acts that no money expended under this or any other appropriation act in this fiscal year will be used to a certain, again, limited exceptions to pay aliens. Now, to give the reading to Title VII that Mr. Cooper and petitioner ask, you’d have to assume that in 1964, Congress on the one hand said, “From now on, the Federal Government’s going to hire aliens, but we’re just not going to pay them.” Obviously, that was not the Congressional intent. Now, I would like to direct the Court’s attention for a second to the question of the EEOC regulations.
Thurgood Marshall: Mr. Carr, before we got to that.
Kenneth R. Carr: Certainly, Your Honor.
Thurgood Marshall: There is nothing in the record to show that there’s any variation on this no-citizen rule?
Kenneth R. Carr: Your Honor --
Thurgood Marshall: It applies to everybody equally?
Kenneth R. Carr: Your Honor, there is in the record, the recognition that one time, Farah deviated from that policy. Now, it’s not in the record and I apologize both to counsel and the Court, I represented the facts in my brief and they are correct, but they’re not contained in the record now. That’s because we weren’t asked on an interrogatory, it would’ve come out, but there’s been one single exception in the history of the company, Your Honor. While Mr. Chief Justice Burger in Griggs pointed out that EEOC guidelines are entitled to great difference and we don’t quarrel for that -- with that for a moment. He then said that the reason they do is that since the Act in its legislative history support the commission’s conclusion, this affords good reason to treat the guidelines as expressed in the Will of Congress. And it seems to me that this is analogous to a fair labor standards Act situation where this Court in Skidmore versus Swift and consistently since has said that interpretative bulletins of the Secretary of Labor and wage hour cases are entitled to great weight. But in Skidmore versus Swift itself, the Court held that the reason they are is because of the weight of such judgment, in a particular case, it said will depend on the thoroughness evident in its consideration upon the validity of its reasoning and all those other factors which give these interpretative bulletins the power to persuade, if not the power to control. And the Courts while giving tremendous deference and have [Laughter Attempt] been on the losing side of one or two to interpretative bulletins of the Secretary of Labor, they don’t hesitate to overrule them where they’re wrong. Now, we think that that’s precisely what the Court should do in Griggs, I’m sorry in Farah. In support of that, we’d show you what we regard as the fatal flaw in the EEOC’s reasoning and again, direct you attention to the memorandum on the question of whether certiorari should be granted. The Solicitor General pointed to the record of Farah in employing people of Mexican origin. And the fact that over 90% of our employees have such origin and the he referred this to the atypical factual situation presented here which makes this a poor case to determine the validity of the EEOC guideline and the interpretation of the Act it embodies. And in the footnote in the same brief, speaking I’m certain for the EEOC, the Solicitor said that in light of these same factors, the EEOC agrees that this is not an appropriate case in which to test the validity of its guidelines, and therefore, asked the Court not to grant certiorari. It seems to me that this just proves the invalidity of the EEOC's reasoning because the guideline as set out says that it doesn’t matter what the facts are. If you have the employee citizenship criterion for employment, then you got a violation. But we don’t want you to look [Laughter Attempt] at the facts here because they’re not good for us. And if that’s the case, this would be the perfect case to look at. And we suggest that the reason they didn’t want the Court to grant cert was because they knew that the Court would overrule -- or would affirm the Fifth Circuit decision and throw out their guideline. Counsel did raise yesterday and in this brief one case which appears to have some similarity between our case, and that’s the Phillips versus Martin Marietta. Superficially, the argument is the same. In Phillips versus Martin Marietta, Martin Marietta was charged with sex discrimination against women and they defended on the grounds, “We couldn’t be possibly discriminating. 75% of our employees are women.” But the deference was that as to all potential male applicants, Martin Marietta said, “You’re welcome. We’re going to look at you.” As to women applicants, they said, “You’re welcome unless you have a child under six.” Now, to analogize Martin Marietta to Farah would be the same distinction I drew earlier. If we had Polish aliens, and English aliens, and French aliens but not Mexican aliens, then we’d be treating the person differently, but we’re not and therefore Martin Marietta also has no application. Mr. Justice Stewart, I believe yesterday asked Mr. Cooper whether there was any evidence in the record with regard to who was hired in the petitioner’s place and Mr. Cooper said that there was none. Now, in the appendix at page 89, the deposition of the petitioner is reprinted. She was asked there, “Do you know who was hired for the job for which you were applying?” And she said, “No, sir.” But the next question was, “Do you understand that those persons were Mexican-Americans with Mexican ancestry, but who are United States citizens.” She answered, “Yes, sir.” Now, in Green versus McDonald Douglas, this Court said that one of the factors that needed to prove up a prima facie case of racial discrimination was for the petitioner to show or the plaintiff to show that a person of a different race had been hired in his stead. And here, it’s clear from the plaintiff’s deposition that the person hired in her stead was of the same national origin as she. Your Honor, if there are no further questions, we'd then just urge that the Court to affirm the decision below as immanently correct. Thank you, Your Honor.
Warren E. Burger: Very well, Mr. Carr. Mr. Cooper, do you have any time remaining here? No, you’ve used all your time, I think. Thank you, gentlemen. The case is submitted.
George Cooper: Thank you, Your Honor.