Warren E. Burger: We will hear arguments next in Trans World Airlines against Thurston. Mr. Oechler, you may proceed whenever you are ready.
Henry J. Oechler, Jr.: Mr. Chief Justice, and may it please the Court, this Court granted certiorari to the second circuit to consider three issues under the Age Discrimination and Employment Act: one, a standard of liability under the ADEA; two, a standard for wilfullness under the ADEA; and three, whether a union can be monetarily liable under the ADEA. Now, TWA, like all major airlines, must adhere to the safety regulations of the Federal Aviation Administration. One of these safety regulations requires that a captain cannot serve as a captain beyond the age of 60, and the issue before this Court is, to what extent, if any, the ADEA requires an employer to find another job for that captain nor anyone else unable to perform in his former position because of age. Now, in an effort to make just such an accommodation, TWA took the lead amongst the airline industry and adopted a policy of relying on the existing neutral bidding procedures of its working agreement. Over a four-year period, this policy resulted in an 83 percent success rate for those captains seeking to serve as flight engineers... for those captains seeking to serve beyond age 60 in a position not subject to the FAA rule, namely, that of flight engineer, which is the third seat in the cockpit. And while TWA was experiencing an 83 percent success rate, the rest of the airline industry during this four-year period had a zero percent success rate. Nevertheless, despite this 83 percent success rate, that was not sufficient for what the EEOC itself admits is a handful of plaintiffs who were retired as captains because they had been unable or unwilling to obtain a flight engineer bid. Now, the court below said that the plaintiffs were entitled to a virtual guarantee to a flight engineer position, because in certain limited and admittedly non-age-related circumstances, there is an automatic right for a captain to go to flight engineer. For example, under the contract, a captain must maintain an FAA first class medical certificate. If for medical reasons he cannot maintain that FAA medical certificate, and can only maintain a second class medical certificate, he is entitled under the contract to revert to flight engineer. Now, the court said, because you did that for what was admittedly a non-age reason, you must do a similar type of accommodation with respect to the plaintiffs here.
Harry A. Blackmun: Of course, that is some discrimination, isn't it?
Henry J. Oechler, Jr.: Well, we submit it is not based on age. What they are seeking here, the fact that they want a reversion right to flight engineer is strictly because of the fact that you have an age 60 rule which prohibits Captain Thurston and similarly situated plaintiffs from continuing as a captain. If Captain Thurston had had his way, he would have wanted to fly long past age 60 as a captain. That was impossible because of the FAA rule, so what he is seeking here is a reversionary right based on the fact that he reached age 60, and the court described that... the dissent described that below as apples versus oranges, because the fact that this reversionary right is available to everyone on the TWA pilot work force, including Captain Thurston, if at age 55 he had a medical problem, he had lost his first class medical certificate, he could have downbid, he could have reverted to flight engineer at age 55. But we submit that the ADEA and the legislative history of the ADEA says you do not now have to create that right based on age. Page 12 of the House of Representatives report which accompanied the 1978 amendments which are at issue here specifically said, you do not have to provide special working conditions, and specifically said, based on age, and specifically said, you do not have to retrain and transfer. And what we are talking about here is retraining Captain Thurston and transferring him from a captain to flight engineer. Now, the question of how much an employer must accommodate its employees was a subject of concern to this Court in another case involving TWA, in another case involving the TWA collective bargaining agreement. That case was TWA v. Hardisan, at 432 US 63, and in that case, Mr. Hardisan contended that because of his religious beliefs, he was entitled not to work on a Saturday, despite the fact that the seniority provisions and the working agreement were going to require him to work on a Saturday. That case arose under Title 7, where there actually is a specific provision about accommodation, while... a religious accommodation, while here it can only be... such a claim for accommodation can only be implied, and the Court said that you do not have to go that far... Pages 79 to 81 in particular, they discussed this question... that the employer does not have to go that far to accommodate the employee. And we submit that has equal applicability here, and it is also important to remember how the posture of this case arose. When TWA announced its policy in August of 1978, it was immediately faced with a lawsuit from the union contending that what we had done by allowing anyone to fly beyond 60, and today we have over 150 people flying beyond 60, violated the Railway Labor Act, because we had unilaterally changed our wages, rates, and working conditions. And they also contended that what we had done was not mandated by the ADEA. Soon thereafter the plaintiffs came in and said that we hadn't gone far enough. The union said we had gone too far. The plaintiffs came in several months later, brought suit saying we hadn't gone far enough to accommodate them. Then we were faced with a third suit brought by younger flight engineers who quite properly pointed out that they had been put on furlough because in a reduction in force we had kept the older people or the payroll based on their seniority, and we had... when we had a reduction in force, the younger people had gotten furloughed, and they contended we had again violated the Railway Labor Act. So, TWA was faced with the situation where it is trying to comply with both the contract and various statutes. This Court has recognized in the Furnod decision that courts are less competent to restructure business practices and the law does not require employers to maximize employee opportunities, and we believe that that mandate of this Court was satisfied here.
Byron R. White: I suppose if the basis for the ruling was you were discriminating, I suppose you could have eliminated the discrimination the other way by just not allowing any automatic transfers.
Henry J. Oechler, Jr.: Well, our contract allowed downbidding, and prior to age 60, historically the contract did allow downbidding, so we felt--
Byron R. White: Automatic?
Henry J. Oechler, Jr.: --No, not automatic.
Byron R. White: Well, automatic--
Henry J. Oechler, Jr.: For those few specific situations, but the normal bidding procedure--
Byron R. White: --Well, you have some automatic downbidding.
Henry J. Oechler, Jr.: --That's right.
Byron R. White: Was that required by the contract?
Henry J. Oechler, Jr.: Yes, that was provided in the contract.
Byron R. White: I suppose you could have negotiated yourself out of that. If those automatic downbiddings were eliminated, you wouldn't... this case wouldn't be here, would it?
Henry J. Oechler, Jr.: Arguably not, but those provisions have been in the contract a long time, and we certainly would have been faced with a claim by the plaintiffs if we did eliminate those types of automatic downbidding that that was an effort at age discrimination because we were eliminating the bases for their claims, and that that would be further evidence of age discrimination.
Byron R. White: What is your legal position under the contract if you have to give automatic downbidding to pilots becoming 60? Are you--
Henry J. Oechler, Jr.: We say that that is not... that there is no provision in the contract that requires that on the basis--
Byron R. White: --Or forbids it?
Henry J. Oechler, Jr.: --Well, when they get--
Byron R. White: Would you have to... is it--
Henry J. Oechler, Jr.: --When they reach age 60, they are not in a position that they can perform as captains.
Byron R. White: --I understand.
Henry J. Oechler, Jr.: The contract says that a captain... defines a contract... defines a captain in Section 33(b) as someone who is a pilot in command. Now, when he reaches age 60--
Byron R. White: He is no longer anything.
Henry J. Oechler, Jr.: --he is not a pilot in command. What are we to do with him? And that was the problem we were faced with, and if we then charged our contract, we were faced with Railway Labor Act violations.
Byron R. White: What if a month before he got to be 60 you let him downbid?
Henry J. Oechler, Jr.: We did, and that is how we got 60. We have 60 people presently captains, presently serving beyond the age of 60 as flight engineers.
Byron R. White: As flight engineers.
Henry J. Oechler, Jr.: Who bid down in the normal bidding procedures that were in the contract before the law was amended in 1978 and have continued to serve. Plus we have 100 career flight engineers, people who have never gone above the level of flight engineer. They have also continued to serve beyond the age of 60.
John Paul Stevens: May I think this through out loud with you for just a second? Is the class of persons we are concerned with properly defined as pilots who are no longer eligible for one reason or another to be in command and who want to become flight engineers?
Henry J. Oechler, Jr.: The class that is involved here insofar as who is aggrieved are--
John Paul Stevens: No, well, those aggrieved are a subclass of the class I have described.
Henry J. Oechler, Jr.: --That is right, but if at age 59 and a half--
John Paul Stevens: I know, but is it correct, and I am not sure this answers it, is it correct that everybody in the class except those who reach the age of 60 have a contractual right to downbid as I described the class?
Henry J. Oechler, Jr.: --Everybody prior to age 60 have a right, and if there is a vacancy, the company... and they have the requisite seniority, the company awards them that right, but when they hit age 60, the age 60 rule comes... applies to them. We have a neutral bidding procedure, but the age 60 rule applies to them, and they hit age 60, and what are we going to do with them?
John Paul Stevens: But is there anything that--
Henry J. Oechler, Jr.: The contract specifically says they have to be pilots in command.
John Paul Stevens: --Is there anything other than the fact that they are 60 years of age that disqualifies them from the downbidding right?
Henry J. Oechler, Jr.: No, it is the age 60, a rule imposed by the government, and now the government is saying, we must make... they are telling us what we must do with them, despite the fact that they were the ones who imposed the government regulation upon us in the first place. I would like to reserve the rest of my time for rebuttal, if I may.
Warren E. Burger: Mr. Abram?
Michael E. Abram: Mr. Chief Justice, and may it please the Court, the argument addressed by TWA revolves around Section 4(a) of the Age Discrimination Act, and argues that there is no substantive violation of that Act. The argument addressed by ALPA is that even if there were a violation of 4(a) in respect to the practices in this case for this handful of former captains, that practice is protected by an affirmative defense, definitional provision, however you wish to characterize it, 4(f)(1) of the statute. Now, there is no dispute in this case that being less than 60 years of age is a BFOQ for the position of captain in TWA flight operations. The government has imposed that regulation. The question that Section 4(f)(1) of the ADEA addresses is simply what... well, there are really two questions: first, how do you go about establishing a BFOQ; and secondly, once the BFOQ is established, what action may be taken in respect to that fact? As I say, the question as to whether the BFOQ exists has been answered in this case. The only question then is, what action may be taken? Now, Section 4(f)(1) in plain terms says that it is not unlawful under the Age Discrimination Act for an employer to take any action, any action otherwise prohibited where age is a BFOQ. Now, that is the kind of sweeping language that this Court has admonished time and again is to be read in accordance with its terms, and indeed, what the EEOC is actually asking that this Court do is to revise the section so that where the section says that the employer may take any action, it should be read to say, the employer may take only one action. That is the action of simply removing the captain out of that job, and then the employer may take any other action which is not prohibited by Section 4(a), whereas 4(f)(1) says you may take any action which is prohibited by Section 4(a). Now, the plain meaning of 4(f)(1) is plainly buttressed in this case by the legislative history of that provision. In 1967, when the ADEA was enacted, Congress legislated against a background of mandatory retirement practices, and it prohibited some of those practices, but not all of them.
Byron R. White: I take it you would be urging the same position if in express language the contract said that pilots who become disqualified by reasons of health or some other reasons from remaining as a captain may downbid, but pilots who become disqualified by reason of age may not.
Michael E. Abram: Your Honor, that is precisely 4(f)--
Byron R. White: If that... if in so many words, you would still take the same position?
Michael E. Abram: --4(f)(1) addresses precisely that type of possibility. Yes, Your Honor. It is a defense to an action--
Byron R. White: Even though it is another brand of age discrimination?
Michael E. Abram: --If there were age discrimination, it would be covered by 4(a); 4(f)(1) then steps into place as a defense to that age discrimination. It has no role at all, unless there is age discrimination. And in this case, our argument assumes for the purposes of the argument that that discrimination exists, although we agree with Mr. Oechler on merit.
Byron R. White: Well, I know, but there are two different kinds of age discrimination.
Michael E. Abram: I am sorry, Your Honor?
Byron R. White: Aren't we talking about two different kinds of age discrimination? They certainly can claim that they may discharge a pilot, discharge a man from a pilot's position at age 60 and not be guilty of age discrimination.
Michael E. Abram: That is precisely what... is argued.
Byron R. White: But then they say also by reason of your age we won't give you the same privileges as other pilots who become disqualified.
Michael E. Abram: Well, they say that by reason of the age 60 rule, the BFOQ rule which the FAA has imposed, we will mandatorily retire you rather than then permit you to exercise your--
Byron R. White: And the reason we are doing it is because of your age.
Michael E. Abram: --Well, the reason for that decision is one in this instance which has to be addressed, I think, to the employer, but the question that the association, the Airline Pilots Association addresses is that that decision, whatever the reason, and even if it is because of age, Your Honor, is protected by 4(f)(1), under the plain meaning of the statute and as buttressed by the legislative history. When Congress legislated in 1967, it authorized mandatory retirement under 4(f)(2), and it authorized it under 4(f)(1). 4(f)(2), of course, the Court is aware, is the employee benefit plan and seniority system defense. Now, 4(f)(2) has been changed by Congress in the 1978 amendments, and Congress when it... of course, these statutory references are at Page 3 and 4 of the brief of TWA. When Congress amended 4(f)(2) in 1978 to take away mandatory retirement under an employee benefit plan, they were faced with the problem that some people might argue that when they did that, that there could no longer be mandatory retirement at an age which is a BFOQ, that that would no longer be protected under 4(f)(1). The Senate passed an amendment to 4(f)(1), literally passed it. It wasn't a Committee. It was passed by the Senate, and that amendment provided explicitly that the action that could be taken under 4(f)(1) included the action of mandatory retirement, and when that got to the Conference Committee, because the House did not have that provision in its legislation, the conferees agreed that it would not... that amendment would not be in the final bill because it worked no change on the present law. They plainly understood and were expressing for all of us to see and read that the present law going back to 1967 authorized mandatory retirement at an age which is a BFOQ. And in the EEOC v. Wyoming case, which involved the mandatory retirement of the game warden and the application of the ADEA to the states, one of the concerns that this Court had was, well, what could happen with this game warden if he was disqualified by a BFOQ? And the Court said in reliance on assurances of the EEOC that the state of Wyoming would be free to do, as to that game warden, precisely what they had been doing and what employers had been doing where age is a BFOQ, and that was in that case mandatory retirement. Now, Section 4(f)(1) is a defense of general application, and it doesn't depend, unlike the analysis of the EEOC, and with due respect, the Second Circuit, it simply does not depend on what other practices the employer may be engaging in with respect to its employees. It doesn't require the employer to justify on a case by case, business by business, job by job analysis.
William H. Rehnquist: You say then that if a practice is justified under 4(f)(1), the fact that the employer may treat employees of a lesser age more leniently does not make the practice that is justified under 4(f)(1) a discrimination because of age?
Michael E. Abram: I analyze it in terms of a defense to what would otherwise be considered age discrimination. Of course, in this case, it must be remembered that flight engineers past the age of 60 have the same rights under the contract as those younger than 60. That is worth bearing in mind when we look at this particular set of practices. But we would analyze it as a defense to what would otherwise be prohibited by Section 4(a).
William H. Rehnquist: Because you would be treating people who attained age 60 differently than people who attained age 45 in a comparable situation?
Michael E. Abram: Well, that depends, Your Honor, on whether it is comparable, and the Second Circuit split two to one on whether there were apples and oranges here, and--
William H. Rehnquist: But don't you say, even if it is comparable, you are protected by 4(f)(1)?
Michael E. Abram: --That's correct. Absolutely.
Thurgood Marshall: Congress could not pass a law and say that all pilots at age 60 shall be put out to pasture, could they?
Michael E. Abram: I think Congress, pursuant to its authority to regulate commerce, could do so, just as it has delegated that authority to the Federal Aviation Administration, to say that if the FAA chose--
Thurgood Marshall: I didn't understand FAA said you will quit. FAA said you just can't be a pilot.
Michael E. Abram: --That's correct, and the--
Thurgood Marshall: Well, could the FAA have said you can't work?
Michael E. Abram: --The FAA could have said you can't be a flight engineer, and they have not at this point said so, but they could have.
Thurgood Marshall: Could they say you can't work any place?
Michael E. Abram: I would think, Your Honor, that that would be unconstitutional under other provisions.
Thurgood Marshall: Isn't that what has happened here?
Michael E. Abram: No, Your Honor. All that has happened is that Congress has authorized mandatory retirement in a narrow range of cases which this Court recognized in EEOC v. Wyoming was a very narrow range of cases of the BFOQ cases. And in those narrow cases, there would be mandatory retirement permitted, and no case by case analysis. Now, in my few remaining minutes addressing briefly the question of remedies insofar as union liability is concerned, an issue that was raised by TWA which seeks to shift some of its liability in the event there is an affirmance on the substance of the case, on the merits of the 4(a) issue to the Airline Pilots Association. This is, of course, an action for lost wages, that is to say, amounts owing. And the Age Discrimination and Employment Act clearly provides, and this Court recognized in Lorillard that amounts owing are to be treated as unpaid minimum wages and overtime compensation for purposes of the Fair Labor Standards Act. I don't think there is really a serious dispute in this case that the Fair Labor Standards Act does not provide a remedy against a union which violates those provisions by a collective bargaining agreement that would be, for example, a violation of some provisions of the FLSA. But just addressing it briefly, you have Section 16(b) of the Fair Labor Standards Act, which is clearly directed to employers. You have Section 16(c), which has historically been interpreted to add to the government only the right to collect on behalf of an individual, the individual's right under Section 16(b), and you have Section 17 of the Fair Labor Standards Act, which has been interpreted to restrain the withholding of unpaid minimum wages and overtime compensation from employers. Now, against this background, the government and the plaintiffs and, I believe, TWA would like the Court to read Section 7(b) of the Age Discrimination Act, where it contains language on equitable and legal relief to provide a new remedy that is not in the Fair Labor Standards Act. Even assuming that TWA could raise that issue because essentially it is raising a claim for contribution, and the plaintiffs and--
William J. Brennan, Jr.: May I ask, below the union prevailed on this question, didn't it?
Michael E. Abram: --The union prevailed on this question below.
William J. Brennan, Jr.: And neither EEOC nor... sought review of that, did they?
Michael E. Abram: They not only didn't seek review of it, Your Honor, they opposed review of it explicitly, and said that they would intend to collect on a joint and several liability.
William J. Brennan, Jr.: Are you going to argue that we ought not hear TWA on this question? TWA raised it, didn't they?
Michael E. Abram: TWA raised their right to shift damages. They may call it union liability, but in essence what right do they have to represent plaintiffs? They are a defendant. Any right that they have is to seek--
William J. Brennan, Jr.: They can't have contribution under Northwest Airlines--
Michael E. Abram: --That's correct, Your Honor. That is precisely the analysis.
William J. Brennan, Jr.: --Are you arguing that we ought or ought not here?
Michael E. Abram: I am arguing, Your Honor, that the Court ought not to hear it, but that if it does hear TWA's claim, it should be rejected under Northwest v. TWU because it is a claim for contribution, and I can perceive no distinction between this statutory scheme in that sense and, of course, Title 7 and the Equal Pay Act, which was part of the FLSA that was dealt with in the TWU case. But if the Court were to reach the question, the argument that Section 7(b) or 7(c) of the ADEA adds remedies to those contained in the FLSA and creates a remedy against a union is really another invitation to judicial legislation, because whereas it is true that Title 7 substantive prohibitions are very similar to, as this Court recognized in Lorillard, to the ADEA substantive provision. The remedial schemes, the comprehensive remedial scheme of ADEA and the FLSA is quite different, and while Congress in Title 7 established a monetary remedy against unions, it did not do so in the ADEA. When we are dealing with a comprehensive remedial scheme our position is simply to follow the precedents that were laid out in Northwest v. TWU and the Ratcliffe Industries case and say that the choices that are to be made as to the remedies, the policies, the policy choices, what would best further the enforcement of this Act are choices that are to be made by Congress, and they have been made in this instance by not providing that remedy. Thank you.
Warren E. Burger: Mr. Wallace.
Lawrence G. Wallace: Mr. Chief Justice, and may it please the Court, there are three separate categories of issues to be determined in this case. The first is whether there was a violation in this case which would automatically give rise to a remedy for back pay. The second is whether the liquidated damages provision which doubles the award of back pay should apply, and that is the only question with respect to which the statutory limitation to willful violations comes into the case. And the third question is whether the union shares liability for monetary relief with the employer, and whether that question is properly before the Court. Addressing the question of a violation first, we readily agree that nothing in the Act would require TWA to make any arrangements to transfer captains or copilots to other jobs at the time that they are required to leave those positions if such transfer arrangements aren't made for other employees. This is strictly a disparate treatment case in comparing the way these older employees are treated with the way younger employees are treated. Now, what we have been told by TWA is that these pilots upon reaching age 60 are no longer pilots in command, and therefore cannot qualify for any transfer rights. There are two points to be made. The first is, all of the plaintiffs before the Court requested transfers prior to reaching their 60th birthday, when they were pilots in command. Those who were unsuccessful in obtaining the transfers were unsuccessful because the process could not be completed prior to reaching their 60th birthday. We discuss in Footnote 9 in our brief one exceptional case where through correspondence with the employer one of the EEOC plaintiffs was, he says, misled into not actually submitting his bid until after his 60th birthday. But the basic point... it is the second point... is that in comparing their situation with those of younger pilots exercising transfer requests, the younger pilots who flunk their medical examination for a first class medical certificate and then request a transfer, or who are disciplined for misconduct in their job as captains or as copilots are no longer pilots in command when they make their request for a transfer. So, there is no distinction between the plaintiffs here and the younger pilots whose treatment they are being compared to on the basis of whether they are pilots in command at the time the transfer requests are afforded.
William H. Rehnquist: Are those really comparable situations when you are talking about a pilot who is 35 or 40 years old, runs into a completely unanticipated medical difficulty, and on the other hand, it seems to me in the case of a pilot who is approaching age 60, that is not a sudden thing at all. That is something that can really be anticipated by everybody concerned.
Lawrence G. Wallace: And it was anticipated by making a request for a transfer prior to reaching age 60. Those requests were not honored if the actual transfer to a different position wasn't completed before that pilot reached age 60.
Sandra Day O'Connor: Well, Mr. Wallace, what about the effect of Section 4(f)(1), which appears expressly to permit an employer to take any action otherwise prohibited by the Age Discrimination and Employment Act for a person who is retired pursuant to a BFOQ?
Lawrence G. Wallace: Yes, that is the argument made with respect to a reading of that phrase at the beginning of that section.
Sandra Day O'Connor: Well, doesn't the literal language certainly make it look like that argument has to be dealt with?
Lawrence G. Wallace: Well, we attempted to deal with it, and let me deal with it now, Justice O'Connor. Our understanding of the bona fide occupational qualification requirement is that it applies to the particular occupation for which it is a legitimate requirement.
Sandra Day O'Connor: Doesn't the legislative history indicate that if there is a BFOQ, the employer was not intended to have to find some other job for the mandatorily retired employee?
Lawrence G. Wallace: And we agree with that, that there is no necessity to make special arrangements for a mandatorily retired employee. That is why we took the position we did in EEOC against Wyoming. The difference here is that, as in Hishon against Spaulding, the employer is affording certain privileges as an incident of employment and certain contractual rights as an incident of employment, and wants to extend them only to one category of employees, in that case based on sex and in this case based on age. And that is precisely the kind of discrimination that Congress addressed. The fact that it is... that the FAA regulation says they no longer can serve in this particular job because of their age, that is a BFOQ with respect to that job, but all it means with respect to their transfer request is that the reason they are making the request is because of their age--
Sandra Day O'Connor: Well, if the EEOC position were to prevail, wouldn't it have the effect in general of discouraging employers from offering any benefits to anybody? Wouldn't it serve to discourage any other employer from ever affording any kind of opportunity to downgrade or have another break, because they are going to be hit with this kind of a charge?
Lawrence G. Wallace: --I don't know the answer to that question, Justice O'Connor. It is the kind of argument that is similar to arguments that were made against the Age Discrimination and Employment Act altogether, that it was going to deprive younger workers of opportunities to move up and to transfer to other positions, and Congress resolved that policy question the other way, and when Congress thought the Courts and particularly this Court had gone too far in permitting mandatory retirements as part of a seniority system, they amended the Act to say that mandatory retirements could not be a part of this defense based on a seniority system. They were concerned that people who still wanted to be a productive part of the work force not be discriminated against because of their age, and they recognized that this might delay advancement of other people or cause other people not to have job opportunities that would otherwise be there. And that is part of what we are faced with here. Now, let me just try to respond further to your question with a hypothetical, which I don't think is unrealistic since we have the Age Discrimination Act which allows persons to enter the work force at an advanced age. Supposing you had someone who became a pilot at age 59 for the first time and had to give up his job at age 60 and just severed his relations with the company because he didn't have enough seniority to make a bid. Similarly, another worker became a pilot at age 35, and at age 36 for disciplinary reasons or medical reasons he was removed from that job, he similarly severed his relations with the company. Then the company expands operations and is hiring flight engineers a year later, and they both apply for the job. It is obvious and in fact it is conceded in the reply brief on the other side that the company could not discriminate between these two applicants for the flight engineer's job based on their age. Why should a different principal prevail based on whether in transferring to the job in the first place they can carry over their seniority rights or not when they are seeking the job because they no longer can perform the other job they have? It isn't a sensible interpretation of a defense, a BFOQ defense that was tied to the idea that the employer need not hire persons for the particular occupation for which the BFOQ defense applies. On the liability question, we really don't think there is a material difference between this case and Hishon against King and Spaulding. The statutory context is different, but there is no material difference. We are dealing with privileges and contract rights that are afforded as an incident of employment, and indeed this case really follows a fortiori from the Hishon case because the job to which they are seeking to be transferred is itself an employee position, whereas in Hishon the Court assumed that it--
Sandra Day O'Connor: Do we have a statutory provision equivalent exactly to 4(f)(1)?
Lawrence G. Wallace: --That was not present, but I think the hypothetical that I just discussed really answers it. They are not saying that because this older employee severed his ties with the company because of a BFOQ, he can now be denied equal consideration as an outsider to the flight engineer job. I don't see why there is anything in the statute that should require the opposite result with respect to his effort to transfer and to use his accumulated seniority for the same purpose.
John Paul Stevens: Mr. Wallace, isn't the difference is that in your hypothetical, at the time the two people apply, neither of them is a member of the BFOQ, whereas in the case before us, at the time the application to downgrade is made, the person who applies is then the member of a BFOQ? And is that a significant difference? Maybe it is just that the statute says so. I don't know. That's the trouble with hypotheticals.
Lawrence G. Wallace: One of the two applicants--
John Paul Stevens: You hypothesize away the statutory provision.
Lawrence G. Wallace: --One of the two applicants had been subject to the BFOQ for the captain job. He had been severed from the company for that reason. If he had not been, he wouldn't be applying now for the flight engineer job. The difference is in whether he can be discriminated against differently because he before he is severed is trying to use his seniority rights to apply for the same job, and the statute--
John Paul Stevens: It seems to me your stronger argument is not that the hypothetical is the same, but rather, that the BFOQ is made for the purpose of determining eligibility to fly airplanes, not to be flight engineers.
Lawrence G. Wallace: --I agree with that completely.
John Paul Stevens: I don't know whether the language will accommodate that, but that is... if there is merit in your position, it seems to me that is the argument.
Lawrence G. Wallace: Well, the language is, like so many other things in this statute, as the Court recognized in Lorillard against Pons, the statute was a hybrid of approaches, and they spliced together approaches from various statutes, and the BFOQ approach was taken from Title 7. In Title 7, if you have a bona fide occupational qualification that you have to be a particular sex for a particular job, you never serve in that job at all, and this question of transfer rights doesn't arise, and there wasn't the kind of precise focus on the drafting of the provision that might have occurred if they had focused on this difference between the two statutes when they were borrowing the provision from the other. But there are indications that we cite and refer to in our committee reports that they thought of the BFOQ as being limited to particular occupations, and the whole thrust of the statute was to oppose the mandatory retirement or other discriminations that would prevent older workers from continuing to be a productive part of the work force if they chose to be. And I think the statute should be interpreted in light of that purpose. The words certainly lend themselves to it, as we explained in some detail in our brief. Now, I would like to, unless there are further questions on that liability issue, I would like to turn briefly to the liquidated damages provision, and the proper statutory standard for determining what constitutes a willful violation within the context of this civil provision. And I think in connection with this question, but it also relates to the other one as well, perhaps the most misleading thing about this case and the danger of this case in interpreting the pertinent statutory terms is that the facts here are so very far from the typical case that Congress had in mind when they enacted the liquidated damages provision initially in the Fair Labor Standards Act, or when they carried it over into the Age Discrimination and Employment Act. They were not thinking of relatively well to do Employees such as these pilots who already qualify for comfortable pensions. What they were thinking about initially in the Fair Labor Standards Act were people who weren't even getting the minimum wage, and perhaps in a period of high unemployment had previously been unemployed, and that if they were denied the minimum wage, it could cause great hardships that were very hard to measure. They might miss installment payments or rent payments and have to move in with relatives, or miss their insurance payments. They might have to choose between forfeiting various of these things, and they said, all of this is obscure and hard to measure, and the only way to make them whole, to compensate them, is to have this liquidated damages provision, which was considered a compensatory way of making them whole. Now, in enacting the ADEA and carrying this provision over, again Congress was thinking of workers who would be hard pressed in their personal situations by violation. When Secretary Willard Wertz, the Secretary of Labor, testified in support of the bill in the hearings, the particular example that he gave in some detail was of a 51-year-old factory worker who had been forced to drop out of high school many years earlier and worked at odd jobs, and finally worked himself up into a position in a factory, and then the factory closed, and he found himself in a position of having to apply for other jobs, saying that his education was less than high school education and he was 51 years old and wouldn't be able to get it. And then he cited--
William H. Rehnquist: Of course, those examples are always the kind that proponents of the bill give, but then Congress enacts a general provision, and it covers a lot more people than just the examples.
Lawrence G. Wallace: --That's right, but my point is that this Court's interpretation of the statutory terms are going to cover a lot more people than just the plaintiffs in this case, and that it is important to keep in mind the examples that were foremost in the Congressional mind in enacting these provisions. And if I may just finish this point, what the Secretary cited to Congress was that over a third of all men who have been unemployed 27 weeks or more, this overall hard core unemployed, are over 45, although this group makes up slightly less than a quarter of the work force. The percentage of older workers in this hard core category was 34.3 percent last year, up from 30.2 percent in '65. More than half of the nation's poor families are headed by persons 45 or over, more than a third by persons 55 or over. And it was in light of testimony of this sort and discussions of this sort that the conference report referred to the liquidated damages provision as compensatory in nature rather than a penalty on the employer, and quoted from this Court's decision in Overnight Transportation Company against Missel, which described this as the purpose of the Fair Labor Standards Act's liquidated damages provision. And it is against this background that we ask the Court to consider the standard we have urged. We don't think that Congress in enacting these provisions had in mind that an employer who chose to make a legal argument when he knew the Act applied but thought he might have a legal argument that would prevail, we think the intent of Congress was clear that in that situation, if the employer is wrong in his legal argument, it is the employer rather than the employee who should bear the loss, and the employee should be fully compensated. And that is the way the comparable limitations provision on which this was based has also been interpreted. My time has expired.
Warren E. Burger: Thank you, counsel. Mr. Fay.
Raymond C. Fay: Mr. Chief Justice, and may it please the Court, this is not a case about what type of accommodation should be given to workers of any age. It is a case about whether pilots approaching age 60 who wish to transfer to the flight engineer position are treated less favorably because of their age. The appropriate universe of pilots here to consider is all of those pilots who lose their qualifications for whatever reason and need or want to transfer to the flight engineer position. This, both in the District Court and in the Court of Appeals, was a summary judgment case. There is no dispute that all, every single one of the younger pilots who had sufficient seniority to transfer were allowed to transfer to the flight engineer position. Only the 60-year-olds were not allowed to in some instances. There were some questions from the bench about bids. It should be understood that pilots on TWA, like all airlines, move around from one position to the other, up, down, by mechanisms other than bids. TWA states that bidding is the basic mechanism in its contract for openings, but that is a term of art. That bidding applies when the airline is expanding its operations and there are new openings, usually for people to move up the ladder. In the same section of TWA's contract which governs the movement of pilots, it shows that pilots also move by other means, displacements, or bumps, as they are called, and assignments, and with respect to the questions regarding automatic downbidding rights of those other people who are disqualified from their pilot positions, such as the medically disqualified, or the disciplinary downgrades, those people don't submit bids in all instances. In some cases when a pilot goes off of the active work force because of medical disability, although that initial medical disability is unanticipated, that pilot will go through a long process of regaining his medical qualifications, and he will make an active decision once he gets recertified when to come back to work. Now, under the pilot contract he either may submit a bid or he may displace a pilot with less seniority. Now, those pilots are allowed to use their seniority rights to displace a less senior pilot. A better example is the disciplinary downgrades which TWA's head of manpower planning testified had occurred in many instances over many years. That doesn't involve a contractual provision at all. There is nothing in that contract that TWA has with its pilots that talks about disciplinary downgrades. The company simply says, we are going to punish you because you made a mistake as captain, and you are going to go back to co-pilot for two months, or you are going to go back to flight engineer for two years, or, in the instance that is in the record here, you are going to go back to flight engineer permanently.
Thurgood Marshall: But isn't that subject to the grievance procedure?
Raymond C. Fay: It is--
Thurgood Marshall: Yes, it is.
Raymond C. Fay: --Yes, it is subject to the grievance procedure, Your Honor, but we are talking about whether bidding is the appropriate universe here. Bidding is not the appropriate universe, because pilots may move around by other means. With regard to the BFOQ argument that ALPA makes, the legislative history, the 1978 legislative history in particular, is clear that all Congress was talking about in 4(f)(1) is the particular job in question. The BFOQ, if it is sought to be asserted for a position not involving a transfer, then perhaps the BFOQ exception would apply. But reading the legislative history as a whole, there is no indication that Congress had the transfer question on its mind, but similarly, there is no question that the issue of transfer is one that is covered by the Age Act, because the Age Act in Section 4(a)(1) not only talks about hiring and firing, but in Section 4(a)(2) it also talks about anything that would tend to deprive a person of employment opportunities, the conditions, the terms, and the privileges of employment. Now, so that we have a complete view of the record, I would like to bring the case back for a minute to where it began in 1978. In 1978, when TWA refused the transfer requests of Captain Thurston and three of the EEOC claimants, and required them to retire in that year, it didn't have any captains employed in the flight engineer position beyond age 60. TWA talks about the 60 people who later transferred from captain to flight engineer.
Warren E. Burger: Just what difference would that make in the whole--
Raymond C. Fay: Because when Captain Thurston asked to transfer to flight engineer, the response he got from the company was not that he didn't have a bid on file, but that he was about to reach the mandatory retirement age that had been agreed to by the union and the company. So, there was a... that stark difference in treatment because of age is plainly... is plain to see. It was not because he didn't have a bid, or hadn't submitted the appropriate papers for transfer. It was solely because of his age. Now, that practice did change a little bit later, but TWA makes it sound like nothing began until it announced that it was going to employ people past 60. The majority of the remaining plaintiffs and the EEOC claimants in this case turned 60 and were required to retire long before TWA actually employed any captains in that flight engineer position beyond age 60. Now, for those later EEOC claimants, it was not a total brick wall, but the difference in treatment was still the same. It was based on age, because all the pilots who were younger and 60 and wished to transfer, if they had sufficient seniority, they could do so. The age 60 people were not allowed to do so. Now, with regard to the seniority question, maybe one other clarifying point. The flight engineer job is a different job. It is not covered by the FAA's age 60 rule, which precludes captains and first officers from flying beyond age 60. However, there is a single integrated seniority list on TWA, and the general seniority provision on TWA says that the senior person gets the preference, and with that ingrained part of the seniority system, it is easy to see why the second circuit concluded that the plaintiffs here were not challenging the seniority system. Indeed, they were trying to use their seniority under TWA's system and under the law to obtain the flight engineer position. Judge Van Grafelin in his dissent had it backwards. Captain Thurston and the others were not trying to take a nine-year furlough or even a one-day furlough and get back into the system. They were seeking to assert their rights as pilots, senior pilots, to transfer to the flight engineer position before age 60. So, the AIPA question of whether a BFOQ applies does not even come up for those people, because they sought to use their existing seniority to transfer. Finally, the FAA's age 60 rule, of course, does not speak to employment as such at all. It only covers service as a pilot, and does not tell TWA how to run its employment business. So, the fact that the FAA's age 60 rule precluding service as a pilot applies does not preclude service from a flight engineer on TWA. Unless there are questions, I will conclude my argument.
Byron R. White: --Could I ask you, what about the Willfulness issue? What is your position on that?
Raymond C. Fay: Our position is the same as the EEOC. It is not... in our briefs we show that there is no difference under the statute for saying that willful means anything different than it means in--
Byron R. White: That issue is here, isn't it?
Raymond C. Fay: --That issue definitely is here, and I might add, Your Honor, that we supported TWA--
Byron R. White: I guess we wouldn't need to decide it if we decided there was no liability.
Raymond C. Fay: --That's right. We supported TWA on that issue--
Byron R. White: Right.
Raymond C. Fay: --in our opposition to the petition for certiorari, so we believe the case is indistinguishable from the Perini, North River Parks Associates case which EEOC has cited in its reply brief. Thank you.
Warren E. Burger: Do you have anything further?
Henry J. Oechler, Jr.: Yes. Thank you, Your Honor.
Warren E. Burger: You have four minutes remaining.
Henry J. Oechler, Jr.: If I may just briefly address the willfulness question, the statute in Section 7(b) says the liquidated damages or double damages should only be provided, only... that's the word in the statute... only provided in the case of a willful violation. Now, the EEOC says that the standard for liquidated damages is if the employer knew that its conduct was governed by the ADEA. That is all the employer has to know, and it concedes that, quote, end quote, only in the rarest of cases will an employer not know that its conduct was going to be covered by the ADEA. He is going to have to be living in a tunnel not to know that his conduct was governed by the ADEA, and in fact under the ADEA he is required to post a statute, so he certainly is going to have to know that his conduct is governed by it. Now, either the word "only" means something, and it means that there is a two-tiered level of liability, and in our brief we discuss the fact that that is what we believe the legislative history supports, or it doesn't, and we suggest that Senator Javits, when he inserted the provision about liquidated damages, it was a substitute for a criminal provision, and two circuits have held that that was meant to be punitive in nature. And yet what the EEOC says is, all you have to do is know that your conduct was governed by the ADEA, therefore we hold you liable for double damages. Now, we submit that what is required is a specific intent to violate the ADEA, and that is what was meant, that was what was meant by the insertion of that provision, because that was what... that was what Senator Javits meant by the fact that it should be punitive. Now, I do want to go back for a moment to this whole question of liability. The provisions that the plaintiffs talk about were just as available to everyone on the TWA pilot work force. They were available to Captain Thurston and they were available to everyone else. They are admittedly non-age reasons, and what they want to do is take that non-age provision and say, okay, now, add TWA a new provision that says for age I am entitled to revert to flight engineer. And we say that is apples versus oranges, as Justice Van Grafelin said. Now, the subject that counsel raised about disciplinary downgrades is addressed in Note 15 of our brief. The only instance that this disciplinary downgrade arose during the course of this entire litigation involved somebody who had a specific prior right that was given to him by a Presidential commission 20 years ago for a non-age reason. And because of that, we felt we had... because we were bound by certain arbitration provisions under the contract, we had no choice but to allow him to go down to that position. Now, TWA directed... when TWA... when the law was passed in April, 1978, TWA still continued to retire people until it adopted its policy in August of '78. Once it adopted its policy, it reinstated those people who were in the flight engineer position. If Captain Thurston had been able to bid, and there was no vacancy between April and June, but there were vacancies in the spring of '78, prior to the enactment of the law, if he had been able to bid and had gotten the flight engineer bid back in the spring of '78, TWA's director, TWA's vice president of flight operations said in his deposition at Page 268 that then he would have been considered for serving as a flight engineer, and been considered for reinstatement at that time. But when he arrived, and he was a captain, we had nothing we could do with him under the bidding procedures of the contract. If you look at JA466 of the record, you see a sample bid. In fact, you see Captain Thurston's--
Warren E. Burger: Your time has expired now, Mr. Oechler.
Henry J. Oechler, Jr.: --Oh, thank you. I am sorry. I didn't see that.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Earl Warren: -- Petitioner versus Texas.
Carl E. F. Dally: Mr. Chief Justice, may it please the Court.
Earl Warren: Mr. Dally.
Carl E. F. Dally: Before leaving and concluding my argument, I would like to make it very clear that the State of Texas relies upon the affidavit opinion sale for stating probable cause in this case. We stated in our brief and we still would contend that actually the affidavit would be sufficient even under the federal standards. And in support of that we would like to call the Court's attention to the case of Eisner versus United States found in 297 Federal Reporter. In that case a federal court has upheld an affidavit which read as follows." Information has been obtained by SA Clifford Anderson, FBI, Cincinnati, Ohio which he believes to be reliable to the effect that Sam Eisner received first which were a part of the loot from the Davidson Indiana Fur Company in Kentucky after they have been transported from Indianapolis and had knowledge that they have been stolen." This particular affidavit certainly is no stronger than the one that we have in the present case. Certiorari was denied in this case and we would offer that in support of the fact that the affidavit found in the present case may even be of such standard that it would meet the federal requirement.
Hugo L. Black: What case was that?
Carl E. F. Dally: That was the case of Eisner versus United States, Your Honor and its 297, Federal Reporter 2d, page 595 and I believe decided --
Earl Warren: Is that in your brief?
Carl E. F. Dally: It's cited in my brief, Your Honor.
Earl Warren: Cited in your brief.
Carl E. F. Dally: We would also say that the -- that this Honorable Court in their Opinion of Ker versus California, as used much of the language that would be applicable in this present case and that is that federally that the Mapp decision did not ring the bell for federalism that the states and the United States would still operate side by side, that the same standards would not be applied. We would say and we respectfully submit that the Court of Criminal Appeals of the State of Texas in approving this affidavit applied the fundamental criteria from the Fourth, Fifth and Fourteenth Amendment of the Constitution of the United States and respectfully submit that the case should be affirmed. Thank you.
Earl Warren: Mr. Woody.
Clyde W. Woody: Mr. Chief Justice, may it please the Court. One thing that I would like the Court to be cognizant of is my position so far as the hearsay is concerned. On page 11 of my brief, I'm not -- I am not attacking this proposition, this affidavit on the constitutionality of an affidavit based on hearsay. That's not my major contention. It is that it does not state sufficient facts. Now the Eisner case and the Rugendorf case that counsel has referred to do state facts distinguished from conclusions. And this Honorable Court in Nathanson versus United States, it is a matter of fact which was reaffirmed in Jones versus United States, the case that he relies on here. And in the Nathanson case, may it please the Court, here is the affidavit which this Court held inadequate and insufficient so far as this position is concerned. And here is the affidavit. Whereas, he said Francis B. Laughlin, has stated under his oath that he has cause to suspect and thus believe that certain merchandise to wit, certain liquors of foreign origin and more particular description of which cannot be given upon which is otherwise been bought into the United States contrary to law. And that said merchandise is now deposited and contained within the premises of JJ Nathanson, said premises being described as a two-storey framed building at 117 North Bartram Avenue. And the Court said this about that particular affidavit. It -- it went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts. The -- the Court went further to say that under the Fourth Amendment the officer may not properly use a warrant to search a dwelling unless the -- it has been issued upon probable cause. Now the Eisner case, there is not -- I submit -- is not employed in the Rugendorf case likewise. Now the Rugendorf case which counsel has cited, the affidavit is thusly. Agent Moore of the FBI swore that an informer who had furnished reliable information in the past, reported to the affiant that he had seen 80 fur garments on the defendant's basement a few days previously, describing them as mink, otter and beaver jackets with labels removed.And that the informer had been told the fur was stolen. Now in that particular affidavit, the Court indicated that they did not discuss this proposition of facts, the Court merely said the appellant was urging in the Rugendorf that the affidavit was based on hearsay information and therefore was insufficient. And the same proposition was before the Court in Eisner. Now these are of course two different propositions, one, hearsay and the Court has already dispose of that proposition that under some circumstances possibly, an affidavit may properly be based on hearsay. However, it must state facts as distinguished from conclusions of law as the -- if the Giordenello case is still the law of this Court and still the law of this land. And if Mapp and Ker mean what they say they mean that the Fourth Amendment is enforceable against the State with the same degree and to the same extent that they are enforceable against the federal courts then this affid -- instant affidavit is insufficient. It is inconceivable to me to believe that if a federal agent or if the Federal Government brought into this Court, an affidavit and which ordered the arrest of an individual and other person or persons unknown and that such process was issued and executed and was relied upon and that a blanket warrant such as we have here was utilized. And I submit that this is almost -- this is very, very close to the affidavit and the warrant that jus -- that the Court considered in Marcus that was decided the same day as Mapp. And two, the Justice -- two of the Justices agreed without the -- without it really being urged that this was a general warrant. And I submit that we have before us here a general warrant. It matters not I submit that the Court has spoken that the Fourth Amendment is enforceable against the States if you allow the States the right to say by their legislation, "Yes, we will follow the constitutional laws of the United States but interpret them in such a manner that they do not do so." That is what we have here and I submit that the proper procedure here would be to reverse this cause and to remand it to the Court of Criminal Appeals and to spell out with great particularity of certainty just what is required in an affidavit and search warrant. Counsel has suggested throughout that while the Federal Rules of Criminal Procedures should not be -- should not controlling on the States. Well as far back as 1926 in the Olmstead case and in 1915 in the Weeks versus United States. Long before the Federal Rules of Criminal Procedure were promulgated, we had the very same application of Rule 41 which is now Rule 41. And as a matter of fact this Court held in Olmstead that it is a -- this is a part and parcel of the Fourth Amendment the -- a motion to suppress. Now I -- I don't see -- I've failed to appreciate how imposing upon the States the requirement that they follow the Fourth Amendment and the Fifth Amendment in this manner works any hardship and this -- this argument of federalism, I submit, has no merit to indicate just the -- just precisely how the Court of Criminal Appeals has confused the issues in a very -- in one of the cases that counsel cites in Giacona. A dissenting opinion there and if I may I would like to read what -- one of the judges the Court of Criminal Appeals said, a man who's been on that court Judge Morrison for a very long time. What we overlooked originally and what they failed to give application to on rehearing is the basic concept of the right of privacy as guaranteed by the Fourteenth Amendment of the Constitution of the United States. And he underlines as interpreted by the Supreme Court, together with the fact that the Opinion in Mapp, the guarantees of that -- of that Amendment as so interpreted have been extended to those who are tried in state court. Now, at least one member of the Court of Criminal Appeals recognizes the fact that they have not been following the Fourth and Fifth Amendment as it is interpreted by this Court. And I submit that in reality, they have not been following a period. And if the Court does not now find that such an affidavit and search warrant to be void then Mapp versus Ohio, Ker versus California has no meaning whatsoever so far as the states are concerned because the states that want to circumvent these particular statutes -- these particular holdings will merely enact the statutes such as Texas has and interpret it accordingly and there will be no real protection and there will be no effective right of privacy as guaranteed by the Constitutional laws of the United States and as has been interpreted by this Honorable Court. Thank you very much.


Earl Warren: Number 200, Aida S. Kovacs versus George A. Brewer. Mr. Haimoff, you may proceed and we understand that there is no one here on the bottom side is that correct?
Louis Haimoff: That is correct, Your Honor. Mr. Chief Justice, if the Court please. This case is here on certiorari to the Supreme Court of the State of North -- North Carolina. The judgment involved is a judgment of the Supreme Court in North Carolina which denied the petition of the petitioner here, Mrs. Kovacs, to enforce in North Carolina an award of the New York Court which had -- which had awarded to her the custody of her child. The child was then eight years of age, a little girl. The case comes here on the following facts. The parties were married originally in New York where they resided. The marriage occurred in 1945. The child was born in New York in 1946. In 1950, the husband brought an action against the wife for divorce in New York and after a trial, judgment was rendered in favor of the husband against the wife. With respect to custody, the court held that while it would not have ordinarily taken the child from his mother really by reason of the misconduct which had been found in the case, nevertheless, the Court did so for the reason that he found that the mother's financial situation and circumstances with such as not to promote the interest and welfare of the child. There was another problem with respect to custody because the husband was then in the navy and has been throughout this proceeding.
William O. Douglas: This is where?
Louis Haimoff: In the navy. He was enlisted, a man in the navy.
William O. Douglas: (Inaudible)
Louis Haimoff: If he is, Your Honor, in the navy. For that reason, the court ultimately decided to award the custody of the child to the paternal grandfather who was a resident of North Carolina. And accordingly the child, he went to North Carolina and remained there with her grandfather.
William O. Douglas: The child is still in North Carolina?
Louis Haimoff: So far, as the record is concerned, yes Your Honor. In 1951 and again in 1952, Mrs. Kovacs made application to the Supreme Court in New York to modify the order which has been made and both of these applications were denied. The court presumably finding that there has been no sufficient change in her circumstances as to warrant any change of custody. In 1954, however, she married Joseph Kovacs who has been named as correspondent in the original divorce action and she went to live with him in Riverdale, New York. Based upon this change in her circumstances, a new application was made, came on to be heard, the Brewers, the grandfather, the father and son appeared by counsel submitted affidavits and upon the basis of the evidence submitted, the court modified its earlier order and awarded custody of the child to Mrs.Kovacs. With this order, the petitioner here attempted to obtain custody of the child. The Brewers however refused voluntarily to surrender the child.
William O. Douglas: Who appeared in that New York proceeding?
Louis Haimoff: The Brewer -- both of them.
William O. Douglas: Pardon me?
Louis Haimoff: Well, the proceeding was a motion in the divorce action so that Brewer, Jr., the plaintiff appeared by counsel submitted an affidavit and his father who had actual custody of the child did not appear by counsel but did submitted an affidavit in opposition to the application to modify the custody award.
William J. Brennan, Jr.: Do you mean by that, that that is just an affidavit of the grandfather the support of the son's position in the case?
Louis Haimoff: Yes, Your Honor. In other way, the motion, the application of Mrs. Kovacs was by motion in the divorce action. In other words, if the question is whether or not the grandfather was added as another party, that is not so.
William J. Brennan, Jr.: So he's never --
Louis Haimoff: He has never --
William J. Brennan, Jr.: That has been an order of the New York Court the records of the grandfather?
Louis Haimoff: Well, the order of the New York Court was in fact directed to the grandfather but --
William J. Brennan, Jr.: Did it require the grandfather to do anything?
Louis Haimoff: It did require the grandfather to surrender custody of the child since the order of the Supreme Court originally had awarded custody of the child to the grandfather. I think possibly, the legal analysis of that situation is that the grandfather is acting pursuant to court order as agent of the father, Brewer, Jr., who was in the navy taking care of the child temporarily pending his service in the navy. If he was -- I think the father ever left the navy, the custody of the child would then be turned over to him. But that never happened.
Hugo L. Black: The child would have jurisdiction.
Louis Haimoff: I beg you pardon?
Hugo L. Black: The child have jurisdiction at that time.
Louis Haimoff: At that time -- that's correct, Your Honor, which was the point of the North Carolina decision.
Speaker: (Inaudible)
Louis Haimoff: Yes, Your Honor.
Speaker: (Inaudible)
Louis Haimoff: With the grandfather.
Speaker: (Inaudible)
Louis Haimoff: Yes, Your Honor
Felix Frankfurter: You mean that's what New York decided?
Louis Haimoff: Yes, Your Honor. I don't know about the decree that contain a reference to North Carolina. But since it had appeared that the grandfather lived in North Carolina, I think that would be a proper inference from the decree.
Speaker: (Inaudible)
Louis Haimoff: Yes, Your Honor.
Speaker: In North Carolina?
Louis Haimoff: In North Carolina.
Speaker: And the grandfather was (Inaudible)
Louis Haimoff: Except to the extent that he became a party in legal theory by reason of the fact that his custody depended upon the right of the child's father to custody but in no other way.
Speaker: (Inaudible) awarded to the grandfather.
Louis Haimoff: Yes, Your Honor. The point that Your Honor makes now I see is this. How could the court have awarded custody to the grandfather if the grandfather was not a party to the proceeding?
Speaker: No.
Louis Haimoff: No?
Speaker: (Inaudible)
Louis Haimoff: He made no appearance unless his submission of an affidavit is construed to be tantamount to an appearance. Other than that, he may not.
Speaker: (Inaudible)
Louis Haimoff: I don't think so Your Honor. I don't think it materially but that's our position. May I --
William J. Brennan, Jr.: Your contention in this case maybe -- is that -- the judgment of the New York court could have been given finding effect by a North Carolina case --
Louis Haimoff: Yes, Your Honor.
William J. Brennan, Jr.: -- as against the grandfather.
Louis Haimoff: Yes, Your Honor, well --
William J. Brennan, Jr.: How do you make him -- how do you bring that about if he is not a party to the (Voice Overlap) --
Louis Haimoff: Well, the grandfather's right to custody of the child has no origin. It has no justificationIt has no basis except in the order of the New York court. Once you remove that basis for the custody of the child with the grandfather, then he has no right to it.
William J. Brennan, Jr.: Well, didn't North Carolina exercised a parents (Inaudible) jurisdiction--
Louis Haimoff: I'm coming to that, if I may, Your Honor.
William J. Brennan, Jr.: The trial was in North Carolina.
Louis Haimoff: That's exactly the question I was presented.
William J. Brennan, Jr.: Why is the custody has to originate from New York to order a subpoena?
Louis Haimoff: The jurisdiction of the State of North Carolina based upon the idea of a notion that the state has acted as parents patriotic, I consider it applies only in a case where there is no parent or were the rights of a parents are being adjudicated. The point of this whole appeal is that what we have involved here is an adjudication of the right of the parents as between the parents to the custody of the child. Now, the net effect of the New York decision was to award the custody of the child to the father. Well the reasons which I have pointed out, the Court considered it appropriate to send the child to the father's father or the child's grandfather in North Carolina. He couldn't send the child to the navy.
William O. Douglas: New York in both times -- New York in both times had jurisdiction over --
Louis Haimoff: Over the parties.
William O. Douglas: Over the parents.
Louis Haimoff: Parents, both parents in our view is what basic and necessary and nothing else is necessary.
William J. Brennan, Jr.: Well, do you mean that the North Carolina decree cannot be construed? I understand that the father in fact is in the navy all the time.
Louis Haimoff: Yes, Your Honor.
William J. Brennan, Jr.: The child has been brought up by the grandparents --
Louis Haimoff: Refer to the study --
William J. Brennan, Jr.: So the record show, the child never seen his father. Isn't that so?
Louis Haimoff: Well, so far as this record shows -- well, I don't think that's true, if Your Honor please because the divorce proceeding was brought in 1951 --
William J. Brennan, Jr.: Well, I don't mean never but I --
Louis Haimoff: Since --
William J. Brennan, Jr.: Since the grandparents have had the child.
Louis Haimoff: Since.
William J. Brennan, Jr.: So far as it appears in the record, the father has not been around.
Louis Haimoff: So far as this -- well, that isn't true either, if Your Honor please because there were affidavits in the case which was submitted which indicate the father's great love for his child and the fact that he has seen the child from time to time on this (Voice Overlap) --
William J. Brennan, Jr.: What do you think the North Carolina decree can be interpreted since the award in this instance without qualification to the grandparents, am I not correct about that?
Louis Haimoff: In New York or --
William J. Brennan, Jr.: North Carolina defense.
Louis Haimoff: Yes.
William J. Brennan, Jr.: That's without qualification --
Louis Haimoff: Yes, Your Honor.
William J. Brennan, Jr.: -- awarded the child to the grandparents.
Louis Haimoff: Yes, Your Honor.
William J. Brennan, Jr.: Well, don't you suppose that might have been an award. It could be interpreted as an award to the grandparents independent of any rights to the parents?
Louis Haimoff: That is possible but I don't think that the Court of North Carolina had any right to do it in view of the prior judgment of the New York court.
William J. Brennan, Jr.: Yes but you are faced with a problem that parent's patriotic exercise by the North Carolina courts maybe an independent basis (Voice Overlap) --
Louis Haimoff: It is -- it is an independent basis but it's not applicable here.
William J. Brennan, Jr.: All right.
Louis Haimoff: That's -- that's our view.
Earl Warren: Suppose the child had not been cared for properly by the grandparents and the courts of North Carolina had taken jurisdiction over the -- over the child to see that because adequately taken care of, do you still think that they had been obliged to recognize the New York decree?
Louis Haimoff: No, they would not. In other words, there's no question about the power, the jurisdiction of the North Carolina court, act upon the basis of circumstances which occurred subsequent to the entry of the New -- of the New York decree. There's no question about that at all. The only point that we make here is that North Carolina has no right to award custody of the child to the grandfather because Judge Stevens in North Carolina disagreed with Judge (Inaudible) in New York as to where the child wanted to be on the same fact. That's basically our position.
Felix Frankfurter: That must be on the basis that North Carolina -- that the determination by the New York court of the well-being of the -- the proper -- proper regard to the well-being of the child, physically resident in North Carolina is an adjudication -- I don't know what in personam which another full page (Inaudible) must be respect by North Carolina. That's your case, is it?
Louis Haimoff: That's our position. And our position further is that that decision has already been made by this Court in May against Anderson. In other words --
Felix Frankfurter: It has that each member of the Court doesn't so (Inaudible)
Louis Haimoff: Well, may I suggest that the reasons --
Felix Frankfurter: I hope you'll suggest that I re-read the case.
Louis Haimoff: No, you're not -- I will not --
Speaker: (Inaudible)
Louis Haimoff: There is no question. That has been raised and I've cited in the brief several New York case which squarely make that -- take that holding and that is that the presence of the child is not necessary to a jurisdiction but it seems to me that the basis and principle of an adjudication of custody which was made clear, I believe at least, and May against Anderson makes it conclusive that a custody adjudication has now been held to be a proceeding and in personam and not a proceeding in rem and that therefore the presence of the child is -- is irrelevant (Voice Overlap) --
William J. Brennan, Jr.: -- suppose in this instance, the grandparents had not been on good terms with their son, if the child was actually in North Carolina living with the grandparents as I understand it. I suppose the type of this New York proceeding that New York -- it's been made awarding custody to the father of the child and the grandparents got into a North Carolina court and got an independent award for themselves. Was the North Carolina court would have to give full faith and credit for the New York case?
Louis Haimoff: Either that of the Full Faith and Credit Clause does not apply to custody cases one way or the other.
Felix Frankfurter: What you're saying is that here, a New York court originally had the disposition of a child. They thought the welfare of the child required that it'd be handed over to the grandfather who I suppose could not have been compelled to take charge of this child. Is that right?
Louis Haimoff: That's correct.
Felix Frankfurter: Nevertheless, in -- in the human disposition of the situation, a child goes and lived with the grandparents and has lived how many years there?
Louis Haimoff: Four years.
Felix Frankfurter: How many?
Louis Haimoff: Four years.
Felix Frankfurter: Four years. And the child is there and has been there. And now because another New York judge several years later thinks that she would make a good -- what shall I say? Tender and desirable mother and such a judge, I take it for granted, is allowed to make that judgment. If a child isn't there and he does not know anything about it at a distance, that determination that's controlling upon North Carolina in theory and law as though these were a controversy about a negotiable instrument.
Louis Haimoff: Exactly. Now may I -- may I add to that, if Your Honor please that if -- if -- if that statement is not correct although it sounds extreme as it was put --
Felix Frankfurter: I want it to be accurate whether it's extreme or not, there's a difference.
Louis Haimoff: It is accurate. (Voice Overlap) and it is a necessary result of the adjudication of the decision of this Court in May against Anderson which was to the effect that a proceeding with respect to custody is a proceeding in personam. In other words, if you -- if you are dealing with the rights of individuals with respect to money or with respect to children, and if you hold that personal service on both -- on both parents, it is necessary. In order to give the Court jurisdiction, you have in effect rule that in custody cases, no distinction is to be drawn. And that once you have defined the rights of the parents, once you have held that we are concerned in custody matters with the rights of the parents then it follows that you are dealing with the personal rights of individuals, the mother and the father and that the presence of the child or the physical whereabouts of the child is irrelevant. Now, the fact that the child is not present in Court and the fact that the judge has no opportunity, let us say, to confer with the child, ought not to make a difference unless you are going to establish a different rule for an infant or for a grown child.
Felix Frankfurter: I suggest to you that May against Anderson was made possible by my concurrence and my special detailed explanation of what I understand the opinion to be because otherwise, whatever May and Anderson and sort of my concurrence had the agreement of only four members of this Court.
Louis Haimoff: I -- I am not prepared, if Your Honor please. I mean I did not prepare to reargue the question as to whether or not a custody proceeding or to be deemed to be a proceeding in rem or in personam.
Felix Frankfurter: Well, I'm not arguing that as to that question. I'm trying to say that I must decide your way because of May and Anderson.
Louis Haimoff: I don't think that that is so, Your Honor. I think that the decision has to ought to be this way because of a fact that a decision had to be made as to whether or not in custody cases, you could deprive the mother or the father of his or her rights to custody in his absence. Any party so to speak.
Felix Frankfurter: I'm suggesting to you that that is not what made a Court in that case.
Louis Haimoff: Well, now then assume --
Felix Frankfurter: That is not the ground. That is not the way I understood what the opinion of my brother (Inaudible) was.
Louis Haimoff: Well --
Felix Frankfurter: I'm not saying you -- you may not have the agreement of the Court with you as new proposition. I'm saying to you that you cannot tell us that would be an answer to such.
Louis Haimoff: Well, I don't know what I would say of any purpose by quoting the language from May against Anderson which I rely upon.
Felix Frankfurter: Well, you can quote it but all I'm saying is there are only four people who agreed to it.
Louis Haimoff: I see Your Honor.
Speaker: (Inaudible)
Louis Haimoff: They are in a very definite sense in which I assume Your Honor means that term, yes.
Speaker: Subject to --
Louis Haimoff: Subject to change.
Speaker: (Inaudible)
Louis Haimoff: I say that North -- North Carolina would not -- would have no right to fight otherwise unless it did so on the basis of a fact, unless it did so on either one of two basis (a) fact which had occurred since the rendition of the New York award or (b), upon the basis of facts which for one reason or another had not been presented to the New York Court.
Felix Frankfurter: Or (c) -- or (c) that there's no reason for changing the welfare -- the conditions of welfare under which the child live.
Louis Haimoff: Well, that's amounts to a --
Felix Frankfurter: Because New York could do that the next day after this decree, couldn't it? New York itself could.
Louis Haimoff: Yes it could.
Felix Frankfurter: But North Carolina can't?
Louis Haimoff: Well, but New York court -- but the New York court could not except on the basis of changed circumstances. In other words --
Felix Frankfurter: By change circumstances meaning the judgment of one estimable New York judge predicts on the whole -- Mrs. Kovacs isn't good a thing for the child as a mother ought to be.
Louis Haimoff: Well that --
Felix Frankfurter: It's the only ground. That's right. And the North Carolina court said, we think this -- this child is morally and emotionally so well sheltered where he is if we ought not to serve a condition.
Louis Haimoff: Well, I would like -- perhaps I want at this point, Mr. Justice Frankfurter, to refer to -- to the decision of this Court in the Halvey case where the statement was made that the -- where the statement was made after Florida decree or to be binding in New York and that the New York court ought not to change the Florida decree simply because the New York court disagreed with the Florida decision. Perhaps I could read the language because it's exactly the point I have in mind.
Felix Frankfurter: As I understand -- as I recall that, I think I wrote something there too and the whole point of that case was that you're dealing -- when you're dealing with custody, you're dealing with something very different from a negotiable instance.
Louis Haimoff: That is true in a sense Your Honor. The language I have in mind is this. The child's welfare must be the controlling consideration. Whenever a Court which can actually lay hold of a child is appealed to on behalf of the child, there's no question about that. Short of that, a valid custodial decree by Florida could not be set aside simply because a New York court, on independent consideration, has its own view of what custody would be appropriate.
Felix Frankfurter: I get that.
Louis Haimoff: In other words, it's my -- if the --
Felix Frankfurter: But here -- but here, New York is setting aside the North Carolina situation.
Louis Haimoff: Well that's -- that I think is not correct, if Your Honor please. New York --
Felix Frankfurter: But the point is, isn't it true that the child is -- there's no question -- is there any question that the child's well -- being has been preserved during these four years and that will be disturbed on the theory that --
Louis Haimoff: Well, we don't --
Felix Frankfurter: -- North Carolina must now bow to New York although the child is before the judges.
Louis Haimoff: We don't agree with that, if Your Honor please. And the -- and the New York court which originally made the order, awarding custody to the grandfather has now also reconsidered its decision and it's in line with the normal --
Felix Frankfurter: Was the child before the New York court?
Louis Haimoff: Well, I'd like to address myself to that, if I may Your Honor as to whether or not the child was before the New York court. In other words, it seems to me we ought not to -- well not to confuse but link together at the same time the question as to the legal right of the Court to make decision and the further question as to whether we agree with it or whether it acted on -- on insufficient evidence. In other words, the question it seems to me that is now being raised is how can a court make a decision with respect to custody unless the child is in court? Well now, it very often happens that such orders are made and the child is not in court. The child maybe away in school. This is a matter for the judge to -- to determine but we are not concerned with that question. That's dealing with the sufficiency of the evidence of the New York court that might be a matter that could be presented on appeal. Mr. Brewer, Jr. could have taken an appeal in New York and urge it. How could this New York court have changed the decision that was formerly made? The child wasn't even here. This is a matter that's addressed, it seems to me, to the correctness of the decision --
Felix Frankfurter: May I -- may I --
Louis Haimoff: -- not to the jurisdiction of a court to make it.
Felix Frankfurter: May I quote it to you why it is relevant to my mind? It isn't merely a question of the evidence on which the judge acted but what legal rule, what imperative requirement we should make to determination by distant tribunal abstractly considering the question without having available the kind of evidence in a normal instance, determine such a judgment. Now, the cases to which I -- you refer, I read a lot of them. They deal with the difficulty of the problem whether a child of eight years or nine years or six years or 12 years can give evidence on what basis the court can act. The cases are full of that kind of thought. But we're not considering a legal question which you're tendering quite right now that abstractly considered because the New York District Court, having no evidence before except the quality of the mother now that she's remarried to change the condition in which the child has been in the last four years as a constitutional doctrine. That's what you're tendering, right? Aren't you? Isn't that true?
Louis Haimoff: I don't -- I don't agree with that. With all due --
Felix Frankfurter: But isn't it a constitutional doctrine you're tendering?
Louis Haimoff: I am tendering a constitutional doctrine but not that one which it seems to me still addressed to the question of the correctness of the decision of the New York court. I'm not dealing with that. I'm dealing with the question of the jurisdiction of the Court to make that decision and it seems to me that does not depend and I see no authority for it anywhere on the fact that the child happens to be physically within the state. Are we dealing now with physical presence, residence or domicile?
Felix Frankfurter: I'm suggesting that in order to determine a constitutional question, we are not to determine it in abstract (Inaudible). A legal question that the child is like a negotiable instance like a bill of exchange and since the bill of exchange determines in New York and binds other state, ergo, a determination regarding the child binds all the other state. I'm challenging the basis on which we are asked to pronounce such a constitutional doctrine.
Louis Haimoff: The only -- the answer that I would like to make to that is this, that we are dealing in custody cases with the rights of the parents.
Felix Frankfurter: Is that (Inaudible)
Louis Haimoff: This I believe to be the necessary implication of May against Anderson and I believe that to be crucial to the decision of this question.
Tom C. Clark: Whether that would be the best interest of the child?
Louis Haimoff: The fact that a resolution of the conflicting interests of the parents to the custody of the child depends or turns upon the welfare of the children. It does not alter the fact that what is basically being passed upon or adjudicated is the right of either parents to the custody, care, management and companionship of the child.
Tom C. Clark: Wasn't that a constitutional right? They don't own them, do they?
Louis Haimoff: They don't own them, that is true but they are legal rights and all legal rights, all legal -- I mean in other words, there is nothing in the United States constitution in the Full Faith and Credit Clause which says that all judgments except judgments in custody matters must be respected by other states. It says --
Tom C. Clark: Are there any state that make a judgment for the custody of a child forever binding?
Louis Haimoff: No state does but there is an established -- but the fact -- but the proposition which is that a Court may modify its earlier decision assumes the jurisdiction of the court to have made its earlier decision and acts upon the basis of evidence of -- of facts which have occurred since the rendition of the early adjustment. There is no question that the New York court as in the Halvey case which presented that situation. The New York Court there on the basis of fact which have not been presented, require the Court modify the acquired decision and this Court sustained the action of the Florida -- of the New York court on the very theory that what Florida could do, New York could do. So we -- that question is not presented here because that question assumes the jurisdiction of the Court to make the original -- and also assume since the courts talk in terms of facts not previously presented and in terms of changed circumstances also assume that in the absence of those things, in the absence of changed circumstances, in the absence of evidence which had not been presented to the prior courts that -- that award would be binding and ought to be respected because otherwise, judicial proceedings with respect to custody matters are excluded or excised from the Full Faith and Credit Clause as if there has been a specific exception of that type of judgment. Now --
Tom C. Clark: Do you think there is no jurisdiction in the state where a child is determined? There is jurisdiction.
Louis Haimoff: There are two types of jurisdiction in a state where the child is physically located. There is the jurisdiction which has been referred to which was applied in the Halvey case based upon as I said the evidence not submitted or upon other facts. There is also another type of jurisdiction which is entirely independent of the jurisdiction and we have thus far have been talking about which has to do with a divorce proceeding and the incidental power of the Court which is passing upon a divorce to make awards with respect to alimony and custody. There is another jurisdiction which was set forth in the Finley case in the New York Court of Appeals and was actually the origin of the North Carolina Rule about the Reece. In that case, the Court held that the parties could not bring into the New York court a dispute which had to do with their respective claims to the custody of the children without at the same time bringing -- unless there were a divorce action. In other words, there was no independent proceeding to define the rights of the parties with respect to the child. The Court did say however that the Court -- that the State of New York has a jurisdiction as parent's patriot to take care of the child if the welfare of the child requires it. But the Court pointed out that there was nothing in that case to show that this was a kind of an emergency situation which required the Court to intervene for the benefit of the child. Now, that is the jurisdiction and that would apply whether there are no parents. It applies to orphans, to abandoned children, it has nothing to do in my opinion where the situation where you are dealing with a divorce suit, where the Court and the divorce action made an award with respect to custody and where that Court subsequently modifies it upon the appearance of the parties. It will be entirely different of course that the parties had not appeared. Based upon the appearance of the parties and then another court supposing the following day on the same facts says, “Well, we don't agree with you New York Supreme Court judge. We have our own view as to what custody would be appropriate.” I don't think that -- I mean either -- either I say the Full Faith and Credit Clause applies the custody proceedings or it does not. If it does apply, then this judgment has to be reversed.