William H. Rehnquist: We'll hear argument now in Number 96-910, the City of Chicago v. The International College of Surgeons. Ms. Solomon.
Benna Ruth Solomon: Mr. Chief Justice and may it please the Court: Respondent International College of Surgeons owns two of the last seven remaining mansions reflecting an illustrious part of history around the turn of the century in the City of Chicago. ICS sought permission to demolish all but the facades of the landmark four-story buildings and to build a 41-story condominium in its place. The city's Landmark Commission refused both the demolition permits and the subsequent requests for hardship exceptions, and ICS challenged both decisions in State court. The city removed the complaints to Federal court--
Sandra Day O'Connor: That's a little odd, isn't it? Why did the city want to take it out of State court?
Benna Ruth Solomon: --Your Honor, we find that on Federal questions the Federal courts have more expertise with the questions, they tend to see them more often, and we find that that gives us greater predictability as we try to assess litigation risks. When there is case law in the Federal courts, as there was on all of the Federal claims that ICS pled in this case, we can review that case law, and we can make a determination whether we should litigate or whether we should settle. In State court, because the cases are not so frequently litigated there, there's a paucity of case law on some subjects.
Sandra Day O'Connor: Well, this was a mix of issues. There was a... Chicago wanted presumably to... well, the respondents, I guess, had sought administrative review of the decision.
Benna Ruth Solomon: Respondents sought a variety of things, Your Honor. Respondents sought to have the ordinance declared... the landmarks ordinance declared unconstitutional, to have the specific ordinance delegating ICS's property as a landmark declared unconstitutional, to have a variety of State law claims litigated in the first instance, they had takings claims, nondelegation claims, vested rights... they had five State law claims. They also had two claims that were presented on the administrative record, so there were a variety of claims.
Ruth Bader Ginsburg: But to the extent this was brought as a review of a municipal agency decision, to the extent that this was a review of the decision of the Landmarks Commission, I was struck by the comment that the Ninth Circuit made in its recent decision that the prospect of a Federal court sitting as an appellate court over State administrative proceedings is rather jarring. Indeed, it's so jarring that I don't know of any instance of a court other than this Court sitting in direct review of a State court proceeding.
Benna Ruth Solomon: Justice Ginsburg, the Ninth Circuit case, like the Armistead case and the Fairfax County case that were also recently decided in the courts of appeals, are diversity cases. They are unlike this case. Of all the recent courts of appeals cases only this one was removed to the Federal court on the basis of Federal questions.
Ruth Bader Ginsburg: But my question was the function of lower appellate courts vis-a-vis State agencies, and even in the Federal question domain, I know of no precedent where a district court, or even a court of appeals, sits as an appellate reviewer as distinguished from... a case might come up, say on habeas, on collateral review, but to my knowledge only this Court, from the highest court of the State, acts in the direct review line, so I don't know any precedent for this Court, for a lower court, for a district court sitting in direct review of a decision of a State agency.
Benna Ruth Solomon: Our argument on that, Your Honor, is in two parts. It is first that the district court had original jurisdiction over the civil claim, over the portion of ICS's complaint that fell within the district court's original jurisdiction. ICS pled numerous Federal constitutional violations, and on the strength of those Federal constitutional violations, we removed the case to district court.
Ruth Bader Ginsburg: But when one challenges an agency action, say, a liquor license or funeral home license, one challenges a State or local agency decision and normally brings up all possible arguments. It violates the State law. It violates the State constitution. It violates the Federal Constitution. My question really is, isn't the implication of the argument you're making today that every decision of every licensing board in every city can become... can have a right of initial access to a Federal forum?
Benna Ruth Solomon: Our argument, Your Honor, rests on the plain language of section 1441, which permits--
Ruth Bader Ginsburg: Well, do I follow... I followed your argument and it seemed to me that was right. Looking at 1441(c), which requires the case to be within the original jurisdiction of the district court, then all of these cases could start out... you're removing, but you can't remove what couldn't start there, so am I correct that as you read the statute any agency decision at the State level, so long as there is a Federal claim stuck in there by the plaintiff, could be begun in the Federal court?
Benna Ruth Solomon: --Your Honor is correct. We certainly make no distinction between a case that could be begun in the Federal district court, or a case that could be removed to the district court. The language of 1331 and 1441 are certainly the same. But we don't think that that opens the floodgates, for a variety of reasons. First of all, as Your Honor points out, there has to be at least a substantial Federal question in the case, something that would make it a civil action. Now, we rely on the presence of the substantial Federal claims in this case to say that this was a civil action within original jurisdiction. We then turn to section 1367, the supplemental jurisdiction statute, which provides the district court with additional supplemental jurisdiction over all other claims that are related to the claim within the original jurisdiction of the district court. Now, in the other cases, the other courts of appeals cases that went... that were removed on the basis of diversity, that element might well be lacking. We don't make an argument here about the diversity cases. Our argument is that, under the plain terms of section 1441, the Federal allegations in this complaint were a civil action within original jurisdiction--
Sandra Day O'Connor: At what point did it become a civil action? Was it such when it was still in the hands of the commission?
Benna Ruth Solomon: --We don't make that argument, Justice O'Connor.
Sandra Day O'Connor: Well, what is your answer?
Benna Ruth Solomon: Our answer is--
Sandra Day O'Connor: Was it a civil action at that stage?
Benna Ruth Solomon: --It was not. It was a civil action when a complaint was filed in the Circuit Court of Cook County. It was... under the terms of the administrative review law at that point, it was a proceeding to review a final decision, and the Illinois supreme court has made clear, and the Seventh Circuit discloses this in its opinion, that under Illinois law additional claims may be brought to the circuit court along with the claims for administrative review.
Anthony M. Kennedy: So it becomes a civil action at the first time that it goes to a State court of general jurisdiction? I mean, is that what we--
Benna Ruth Solomon: At a minimum, Your Honor, yes.
William H. Rehnquist: --Well, isn't the term civil action kind of a word of art? You find it in a particular section of the Federal jurisdiction statute, and it may not have counterparts in State law.
Benna Ruth Solomon: Well, the term civil action, as we describe in our brief, is a historical term. The components civil and action are well-described in this Court's cases. Civil is used only in contradistinction to something that is criminal, so the case was clearly a civil action. It was clearly civil. Let me say that. It was also an action, as the Court described, for example, in the Upshur case and a variety of the other cases. An action is one before a judicial tribunal, between the parties, seeking a remedy that is provided by law. There is no question that in the Circuit Court of Cook County this was a civil action.
Anthony M. Kennedy: So that, to follow up on Justice Ginsburg's earlier questions, and she indicated that this was jarring, in California as in some other States there are certain agencies whose findings are conclusive, and review is then in the State court of appeals, so that's the point at which, when the aggrieved party goes to the State court of appeals, there could be an action in United States district... it could be removed to the United States district court?
Benna Ruth Solomon: Justice Kennedy, it might be different in some other situations, but what we have here in this case was a complaint filed in the Circuit Court of Cook County, and at that point we filed a notice of removal to--
Anthony M. Kennedy: What about the instance I explained, where you go from the agency directly to the three-judge court of appeals in California.
Benna Ruth Solomon: --I--
Anthony M. Kennedy: It's State system, and as I understand your argument, at that point the defendant could remove to a United States district court.
Benna Ruth Solomon: --I would see no basis for saying that that was something other than a civil action. If it's civil as opposed to criminal, and if it is an action, as the Court has described, as I said, in a variety of cases--
Anthony M. Kennedy: So you can remove.
Benna Ruth Solomon: --I would see no reason why it could not be, but of course that is not this case. This case was a straightforward removal from the Circuit Court of Cook County--
Ruth Bader Ginsburg: But it would be just as straightforward. So your point is, you could remove whether the State puts its review in the middle tier or in the court of first instance. They're equally removable.
Benna Ruth Solomon: --Our point, Your Honor, yes, is that any... by the plain terms of section 1441, a statute that Congress wrote providing for the removal jurisdiction, a civil action within the original jurisdiction of the--
Ruth Bader Ginsburg: Stop right there, because there in your prior statement seems to put you out of the 1441 territory, a civil action that could originally be commenced in the Federal court. You have said that it wasn't a civil action before the Landmarks Commission. It didn't become a civil action until it was commenced in a State court. Therefore, doesn't it follow that it could not have been commenced originally in the Federal court? It must be commenced in the State court.
Benna Ruth Solomon: --We don't see that, Justice Ginsburg. What we see is that at the point that ICS was attempting to decide how to obtain judicial review of the Landmark Commission's decisions denying it demolition permits and denying it hardship exceptions in part on the grounds that they alleged that it violated the Takings Clause, the Equal Protection Clause, the Due Process Clause, that the landmarks ordinance was unconstitutional on its face, it was unconstitutional as applied, at the point that they were deciding how to obtain judicial review, they could have drafted the complaint that appears in the joint appendix in this case, they could have walked down the street to the Federal district court, and they could have filed that complaint there invoking the Federal district court's original jurisdiction over the Federal claims.
Ruth Bader Ginsburg: But you just said it doesn't become a Federal case until it's first filed in a State court.
Benna Ruth Solomon: Right.
Ruth Bader Ginsburg: You now seem to be saying they could have gone from the Landmarks Commission directly into Federal court, passing any State court forum.
Benna Ruth Solomon: I'm sorry if I was unclear, Justice Ginsburg. What I intended to say is that at the point where the action is going to be filed in court, it is at a minimum at that point a civil action. It is civil in nature, and it is an action between the parties. It is seeking a remedy from a judicial tribunal. These are the factors that the Court has historic--
William H. Rehnquist: But you're not saying that someone seeking review of the Landmarks Commission could file directly in Federal court before it had gone to the State court, have you... are you? Because that's contrary to our Stude case.
Benna Ruth Solomon: --Your Honor, we do take that position, and I don't think it's counter to the Stude case, if I could explain.
William H. Rehnquist: Yes.
Benna Ruth Solomon: The Stude case, as you are aware, had two portions, one seeking an original filing in the district court and the other seeking removal on the basis of diversity. As for the removal portion, the Court indicated it could not be removed because under Federal law, regardless of how Iowa labeled the parties, under Federal law the railroad was the plaintiff, and the plaintiff could not remove. As for the other portion, the portion originally filed within... filed as a diversity action in the district court, the Court indicated that the defect in that case was simply that the railroad was attempting to obtain review only of the question of damages. It was attempting to separate the question of damages from the underlying liability. And the Court is very clear about this, because in the first portion of the Court's opinion it says, in terms, it could have been removed by the defendant if it had really been by the defendant, and that dicta in Stude, of course, became the holding of Horton, that a Federal defendant... I'm sorry, a defendant on a Federal ques... in a diversity case... excuse me again... can remove a State administrative action. That was the holding of Horton. Filed... it could file it in the district court invoking diversity jurisdiction, that it would be a civil action within the original jurisdiction of the district--
Ruth Bader Ginsburg: Horton was filed initially in the Federal court, right? It wasn't--
Benna Ruth Solomon: --Horton was filed... I misspoke, Your Honor. It was a diversity case.
Ruth Bader Ginsburg: --And the Court there said, under that Texas scheme, the administrative procedure, it's as though it didn't exist, because you start it all over in Federal court, so it wasn't a review of any administrative decision.
Benna Ruth Solomon: That is correct, Your Honor, and that is--
William H. Rehnquist: That's how... go ahead.
Benna Ruth Solomon: --That is why the parties here agree--
William H. Rehnquist: And that's how it's distinguished from Stude, was it not?
Benna Ruth Solomon: --This case is the first case to come before the Court seeking either removal or an original filing of a case that includes, as one component... and I want to be very clear about that. It includes, as one component, a portion that could... that by State law is reviewed on the record.
Sandra Day O'Connor: It-- --But as to that portion, I guess the supplemental jurisdiction statute, section 1367 of title 28, would enable the Federal district court, if, in fact, this is removable there, to decline to exercise supplemental jurisdiction over the administrative review claims.
Benna Ruth Solomon: That is, of course, correct, Your Honor. Our point is simply that it was a civil action within the meaning of 1441. It was removable because of that provision. Once removed, the district court obtained supplemental jurisdiction over all related State claims. ICS does not argue that it's administrative review claims were not claims. It does not argue that they were not related to the Federal claims, and the plain terms of section 1367 contain no qualifier for de novo or original claims.
David H. Souter: Do we have the abstention issue before us?
Benna Ruth Solomon: I don't believe you do, Your Honor, but the abstention in any event... abstention doctrine recognizes jurisdiction. The Seventh Circuit's holding, of course, was that Federal district court lacked jurisdiction over the action, because--
Ruth Bader Ginsburg: Because it could not have originally... because a proceeding to review an agency decision, in the views of the Seventh Circuit, could not originally have been commenced in the Federal court.
Benna Ruth Solomon: --I think more precisely, Your Honor, it is that because one portion of the complaint would not be reviewed de novo--
Ruth Bader Ginsburg: To the extent that it was a proceeding to review the Landmarks Commission decision, it could not have been brought in the Federal court. That was the view of the Seventh Circuit.
Benna Ruth Solomon: --And as a result, none of it could. The Seventh Circuit's view was that this was not a civil action within original jurisdiction because of the mere presence within the case of one portion that would be reviewed on the record, and we think that is faulty for a variety of reasons.
Ruth Bader Ginsburg: If you were concerned about having access to the Federal forum on the Federal question, the due process question, could you not have done before the State court something comparable to what was done in the England case? That is to say, State court, decide the State law questions. They're prior anyway, aren't they, because you would not reach a due process question unless you said that under the State Landmarks Commission law, or under the city law, you couldn't do this, so couldn't you say... preserve your interest in having the Federal question in Federal court by saying, State court, don't reach the Federal question, we want to preserve that ultimately to bring in Federal court?
Benna Ruth Solomon: Your Honor, as I understand the England reservation, it is a basis to avoid decision of the Federal claims of... if the State claims are remanded, not as an original matter within the State court, but--
Ruth Bader Ginsburg: I don't mean that, precisely that pattern. I mean the technique of saying, if you want the Federal claim in Federal court, but the State claims are logically prior.
Benna Ruth Solomon: --There are a variety of techniques that are available to the district courts to avoid deciding the State law claims. The abstention doctrines are always available. Section 13--
Sandra Day O'Connor: Well, I understood Justice Ginsburg to be interested in what the State court could do to go ahead and resolve State issues and not decide the Federal law questions, but I suppose the State court wouldn't have to refrain.
Benna Ruth Solomon: --I think that's right, Justice O'Connor. I do not know any way of saying to the State court, although these claims are present before you, and although they have not been removed--
Sandra Day O'Connor: There's no Federal rule that says, State court you have to lay off because the City of Chicago doesn't want you to hear it.
Benna Ruth Solomon: --Nor even any requirement like the Pullman doctrine that the State courts should not decide constitutional questions first.
William H. Rehnquist: Ms. Solomon, in the Stude opinion at page 581 the Court says, the United States District Court for the Southern District of Iowa does not sit to review on appeal action taken administratively or judicially in a State proceeding. Now, do you agree with that, or do you want us to repudiate that? We certainly agree with it in the context in which it was written. My only point is that it does not prevent the Federal district court from hearing the State administrative review claims in this case, and I say that for two reasons. First of all, because Stude was a de novo proceeding, whatever that language means... and we indicate in our brief what we think it means. We think it means, cannot separate the question of damages, but whatever that language means, the Court could not have been referring to a case within deferential review, because that was not what the Stude case was. Stude was a case about de novo review, and the Court subsequently made clear in Horton that any case that does require de novo review is within the original jurisdiction. Yes, but the opposite part of that was that Horton-- --Yes-- --The fair reading of Horton, it seems to me, is that if it required deferential review there would not have been original jurisdiction. I... would you say that that's a permissible reading of Horton?
Benna Ruth Solomon: I would until you get to Califano v. Sanders, Your Honor, and Califano v. Sanders clearly holds that Federal administrative review actions under the Administrative Procedure Act, which in the vast, vast majority of cases require deferential review, are civil actions within original jurisdiction under 1331. That's the holding of Califano v. Sanders, and if that is incorrect, as the Court held in Califano, there simply is no basis under which to review--
Ruth Bader Ginsburg: But it was really en passant in Sanders, wasn't it, because the main thing that was held there was that you didn't have 1331 review in these social security cases and, as I recall, didn't the Chief write separately to say there was no need to discuss 1331 at all, because the review route under the Social Security Act was 205?
Benna Ruth Solomon: --The question in Califano, Your Honor, as we understand it was, is there jurisdiction under the Administrative Procedure Act itself, and in that sense the Court did kind of back into the discussion on 1331. Perhaps that's what you mean by en passant.
Ruth Bader Ginsburg: Well, but--
Benna Ruth Solomon: The whole--
Ruth Bader Ginsburg: --what I meant was that Sanders was a social security review case, right?
Benna Ruth Solomon: --That was the factual situation, Your Honor.
Ruth Bader Ginsburg: And the Court said... the holding was you don't have 1331 available there, because you have only 205.
Benna Ruth Solomon: The holding as we understand it, Your Honor, is that you don't have administrative jurisdiction directly under the Administrative Procedure Act, and that was the question the Court granted certiorari on because it was a conflict in the circuits on that question. And the Court says, well, you know, we actually don't have to decide that any more, because since we granted certiorari the Congress has amended 1331 to delete the jurisdictional amount, and whatever impediment there might have been before, there isn't now, we read section 31 as conferring jurisdiction on the district courts to hear these administrative review cases, and--
Ruth Bader Ginsburg: Well, I don't want to quibble about what Sanders held versus what it says en passant, because you're unquestionably right that under the APA 1331 now, without the amount--
Benna Ruth Solomon: --Right, and--
Ruth Bader Ginsburg: --controversy, works, but do you think that the part when it was talking about review of Federal agency decisions had in mind at all that every municipal agency, every county agency, every State agency by virtue of that decision was going to come into Federal court initially as a civil action?
Benna Ruth Solomon: --Well, of course, the Court was construing the statute there, and we are attempting to do that here as well. We're attempting to construe the words in section 1331 which said, civil action within original jurisdiction.
Ruth Bader Ginsburg: But if it doesn't, if, as Strudesaid... and maybe Strude got this point wrong... if it doesn't become a civil action until it's lodged in a State court, then it could not have been commenced originally. It would have to be commenced originally in the State court.
Benna Ruth Solomon: I hope I haven't confused the... our argument here. The... what the cases say, and Upshur is one of the best expositions of it, is that there comes a point in the proceeding where something is a civil action, and it... at the point where it would be filed in court it could be filed in Federal court, it could be filed in State court and removed. We certainly make no argument that 1331 and 1341 should not be read as two sides of the same coin. Our point is that, under 1331, we know the district courts are jurisdictionally competent to hear deferential review actions. They hear them every day of the week.
David H. Souter: Well, but may I interrupt you there? They are competent at least on the assumptions that Califano was making, but the one feature here that Califano didn't have, and the one... I guess the feature which is perhaps more jolting to me than others, is that even though the review is deferential, it's still a deferential review which ultimately turns on making value judgments on State policy, aesthetic judgments about the character of the neighborhood here, economic judgments about hardship. And if, in fact, that is going to be a constant feature of the cases in the class that we're talking about here, so that there would be a good argument, for example, for abstention of those particular... on those particular issues, why wouldn't that be a good reason for us to recognize a different meaning for civil action so that we would not constantly be dragging these State review cases into the court only to be faced with an abstention claim?
Benna Ruth Solomon: I think, Your Honor, the simple answer is because the language won't allow it. The language says, a civil action within original jurisdiction. It makes no difference--
Ruth Bader Ginsburg: Why? The same words mean different things in different contexts. Take arising under. It means different things in the statute than it means when those very same words are used in the Constitution.
Benna Ruth Solomon: --But these are two jurisdictional statutes, 1341, and if ever there is a reason and a place to be clear about the meaning, it is in the jurisdictional statutes, otherwise you have people litigating to judgment only to find out they were in the wrong court. We don't resist the abstention doctrines as far as they go. Our point about them is simply that it is not a denial of jurisdiction in those cases. Abstention will come into play in appropriate cases, perhaps the vast majority of the cases, but--
Sandra Day O'Connor: When you talk about abstention, are you talking about exercise... about declining to exercise supplemental jurisdiction--
Benna Ruth Solomon: --I am.
Sandra Day O'Connor: --under section 1367?
Benna Ruth Solomon: As well as the... as other abstention doctrines. And with that I'll reserve the balance of my time.
William H. Rehnquist: Very well, Ms. Solomon. Mr. Brennan, we'll hear from you.
Richard J. Brennan: Mr. Chief Justice, and may it please the Court: In view of the questions the Court has put to counsel, it strikes me that the best place for me to begin is with the city's landmark ordinance, which in its specific provision of 2-120-810 says that final administrative decisions shall be appealable to the Circuit Court of Cook County under the Illinois Administrative Review Act, and what the respondents did in this case was exactly to follow that ordinance, and we filed a one-count... I mean, no count. The complaint was simply a complaint for administrative review, and the elements of that were very, very simple. We had to file two complaints for administrative review, one from the decision of the commission denying the demolition permit, the second from the commission's decision denying the economic hardship exception, and we also had to file a third action from the decision of the Chicago Plan Commission denying our application under the Chicago and Lake Michigan lake front protection ordinance, so we had three cases that we had to go to court with at that point. We were well aware that we might have exercised our Federal constitutional rights by marching down to the Federal court and filing an action under 1983. We chose not to do that, very deliberately.
John Paul Stevens: May I ask, is it your position that the complaint for administrative review that you just did... that you did file, if you just changed the caption of it as... called it civil action in Federal court under 1983, or something like that, that had exactly the same allegations in it, could you have filed it originally in the United States district court?
Richard J. Brennan: No, we could not have, Your Honor--
John Paul Stevens: Why not?
Richard J. Brennan: --and the reason we could not have is because that cause of action arises out of a final decision of an administrative agency, and therefore that case, if we tried to file it--
John Paul Stevens: Even the aspects of it in which you allege the ordinances are unconstitutional under both the Federal and State constitution on their face?
Richard J. Brennan: --If they were combined together, if that cause of action had sought review of both the adminis... the final decision and also had a count under 1983, that--
Antonin Scalia: No, I'm assuming the complaint is word-for-word the same, except the jurisdictional allegation's a little different. Say this arises under Federal law--
Richard J. Brennan: --Right.
Antonin Scalia: --and so forth and so on.
Richard J. Brennan: And we could not have filed that because this lawsuit, this dispute is not a civil action within the original jurisdiction of the district court because it comes out of, it arises out of a final decision of an administrative agency, and so the terms in the statutes, in the removal statute and the jurisdictional statute, which speak in terms of a civil action of which the court has original jurisdiction, this is not that kind of a case. It's... it--
Antonin Scalia: Why should a precisely identical case involving the Federal agency be a civil action, whereas this is not a civil action? It seems to me its actionness is exactly the same--
Richard J. Brennan: --Sure.
Antonin Scalia: --in the two situations. You may appeal to some principle of... I don't know, States ought to review their own agencies, but I don't know how you can say that they're not equivalently civil actions.
Richard J. Brennan: Your Honor, I think the answer is very clear and is very simple, and it's found in Califano. In Califano this Court found that there was jurisdiction to review decisions of Federal agencies under 1331 because Congress had amended 1331 by explicitly providing that the then-required jurisdictional amount was not necessary to bring an action against a Federal agency. There is a Federal statute that says in Califano that actions can be brought under 1331 challenging decisions of Federal administrative agencies. Ours is a State agency.
Antonin Scalia: I'm sorry, 1331 says that actions can be brought challenging decisions of Federal agencies?
Richard J. Brennan: I think that's the import of the holding in Califano.
Stephen G. Breyer: What it says in 1331 is that district courts shall have original jurisdiction of all civil actions-- --That's all it says. --arising under the Constitution.
Richard J. Brennan: Correct.
Stephen G. Breyer: And so I think the question was, or at least mine would be, which I think is the same, how can it be a civil action if what you're asking for is to review a Federal administrative agency, but suddenly it isn't a civil action when what you're asking for is to review a State agency?
Richard J. Brennan: And I believe the answer to that is that you have to look at the entire jurisdictional language, which is a civil action arising under the original--
Stephen G. Breyer: Oh, absolutely you're quite correct that a State agency is a civil action not arising under the Constitution. That is not what... or the laws of the United States.
Richard J. Brennan: --No, it says--
Stephen G. Breyer: It would be in court because it is a civil action which is removable because it is, in fact, a claim so related to claims in the action that they're part of the same case or controversy. That's why it would come in, not under 1331.
Richard J. Brennan: --Well, I think that's a 1441(c) analogy, but I think in either case the conclusion and the analysis, the correct analysis and the bar is that this civil action is not an action of which the district court has original jurisdiction because it comes out of a final decision of an administrative agency.
Stephen G. Breyer: And then now the question is, why does that make a difference?
Richard J. Brennan: Because all of the jurisdictional statutes use the phrase, a civil action of which the district court has original jurisdiction, and--
Ruth Bader Ginsburg: Are you relying on what the Strude case said about, it doesn't become a civil action until it's lodged in State court. Justice Minton thought that at that point it could be removed, but if it's... if it doesn't become a civil action until it must be commenced in State court, then it would not qualify as an action that could originally be brought?
Richard J. Brennan: --Justice Ginsburg, as I read Stude and Horton and the four circuit courts of appeals that have addressed this issue, it seems to me that the initial inquiry all four of those courts have made is, what is the nature of the action, and when the action arises to challenge a decision of a State administrative agency, it then becomes in nature an appellate case, and is not within the original jurisdiction of the--
Ruth Bader Ginsburg: But you just said you could have... you could have forgotten all about the State review proceeding, and you could have brought a 1983 action.
Richard J. Brennan: --That's correct.
Ruth Bader Ginsburg: And then you could have gone into Federal court. So suppose you just split up this complaint and you have one complaint that you want review of the land law decision. You bring that in the Cook County court. And then the other complaint is that you're denied due process, and you bring that in the Federal court. That you could have done, couldn't you have?
Richard J. Brennan: I don't believe I could have combined the two of them at all, Your Honor. I believe that by virtue of the fact that the action that we're complaining about, the final decision of the Landmarks Commission is a final decision which is being attacked in a lawsuit which challenges that decision, that that makes it a review, an appellate review, a deferential review of the decision of the Landmarks Commission, and so the 1983 action, of which the Federal district court might arguably have jurisdiction if we file that separately, would be a de novo action. It is then an... it is a civil action of which the Court has original jurisdiction.
Speaker: Mr. Brennan--
Richard J. Brennan: But this case is purely a complaint for administrative review that seeks solely and exclusively deferential review of the final decision of the Landmark--
Sandra Day O'Connor: --Well, is that true of the constitutional issues that are raised?
Richard J. Brennan: --Yes, it is, Justice O'Connor.
Sandra Day O'Connor: How is that?
Richard J. Brennan: Because the constitutional issues still arise out of the decision and the ordinance and the statutes under which that decision is made. Under Illinois administrative review law, when the... when that... those constitutional issues, State or Federal, get to the Circuit Court of Cook County, they are entitled to be reviewed by a de novo standard of review, but nevertheless, the action itself is not a de novo action. The nature of the action is one which is--
Sandra Day O'Connor: No, but those constitutional law issues are resolved de novo. We just don't know how the administrative review part is going to come out. Now, why couldn't the Federal court, if the case is removed to Federal court why can't the Federal court judge decline to exercise jurisdiction over these related State claims?
Richard J. Brennan: --Because he does not have jurisdiction to hear the constitutional claims, and the reason for that is that the nature of the complaint, the nature of the lawsuit that is filed, the essential facts and elements of it, are--
Sandra Day O'Connor: Well, I know that's your position, but if you're wrong, presumably the district court judge could simply decline to exercise jurisdiction over these State law matters.
Richard J. Brennan: --Theoretically he could, Your Honor, but... but I guess what I'm really saying, I mean, reduced to its simplest terms, is that the fact that when the plaintiff comes to court, and in their complaint they're complaining about this final decision of an administrative agency, that's the lawsuit that's filed following that action. The nature of that lawsuit, whatever caption it's put under, whether it's in one count or two count, whether it includes 1983 claims or not, it is nevertheless a cause of action that arises out of a final decision of an administrative agency, and for that fact and that fact alone it then is not within the original jurisdiction--
Stephen G. Breyer: If that's your view, I'd like you to expand, if you would, please, on your response to Justice O'Connor. You said the word theoretically, sort of underlining theoretically, and I thought that was important because I think one of the problems is whether this would lead to a flood of reviews of State court administrative cases in Federal court. And what I'd like you to respond to is the suggestion, no, because the State administrative claims can be remanded in any instance where a judge has decided the Federal question, where they predominate, or for any other fairly good reason, and by the way, if the judge in the Federal court needs to know the answer to the State question before he can answer the Federal one, Pullman abstention with an England reservation if necessary, or if it's really going to mix up the State court system--
Richard J. Brennan: --Yes.
Stephen G. Breyer: --Burford abstention. So we have Burford, Pullman, England, and three clauses in the supplemental jurisdiction--
Richard J. Brennan: Right.
Antonin Scalia: --We can make up another one, if necessary. I mean, it's-- [Laughter] That's why I picked up on your word theoretically, because it seems more than theoretically.
Richard J. Brennan: And thank you for raising that, because it really gets to what I think is the important opportunity that the Court has in this case, and that is an opportunity to avoid, if you will, all of the litigation that comes under the arising under cases, as to whether or not this is an action arising under, and the abstention cases. The much better rule as a matter of judicial policy that I think this Court should adopt is the rule that says, we do not have... Federal district courts do not have appellate jurisdiction to review final decisions of administrative agencies.
Antonin Scalia: So--
Richard J. Brennan: So that jurisdictional rule to the practitioners is very clear. We don't get into all the arguments that we can in abstention cases.
Antonin Scalia: --Well, we can't hold that as you just put it, because we have held that we have jurisdiction to review administrative agencies.
Richard J. Brennan: Excuse me.
Antonin Scalia: Federal administrative--
Richard J. Brennan: State... thank you.
Antonin Scalia: --And now-- --Yes, but then you have to tell me why Federal versus State makes one be an action whereas the other isn't an action, or makes one be civil whereas the other isn't civil. I mean, we have to squeeze this theory within the text of the statute, and you haven't given me a, you know, a gimmick to do that.
Richard J. Brennan: Well--
Antonin Scalia: So I'd... it's easier to invent a new abstention. [Laughter]
Richard J. Brennan: --There is no gimmick in the statute, because when you're looking at the jurisdictional issue you're necessarily looking for where is jurisdiction found, where is jurisdiction conferred on the district court in the first instance. Limited jurisdiction. Burden is on the plaintiff who's attempting... the party who's attempting to get into Federal court to show that there is Federal court jurisdiction. Those are all well-settled principles.
William H. Rehnquist: But--
Richard J. Brennan: And the--
William H. Rehnquist: --But the district court does have jurisdiction over a civil action. We have held that an appeal from a Federal administrative agency to the district court is a civil action. You're saying it should be different if it's a State admin... now, say why, just directly, if you would.
Richard J. Brennan: --Because there is no statutory authority for the district court's to have jurisdiction over State administrative--
William H. Rehnquist: But there was no specific jurisdiction for them to have jurisdiction over appeals from Federal agencies. That was found to be a civil action, was it not?
Richard J. Brennan: --It was found to be a civil action in Califano when the court found that the 1976 amendments to 1331, in essence in the legislative history, and it's set forth clearly, I think, in footnote 4 of the opinion to Califano, basically says Congress amended the statute and took... and added a provision which says that actions under 1331 can be filed as arising under actions against Federal agencies because they removed the prior--
Antonin Scalia: So the legislative history causes 1331 to have in it some imaginary language, this applies only to Federal--
Richard J. Brennan: --No.
Antonin Scalia: --a review of Federal administrative action.
Richard J. Brennan: The existing jurisdictional statutes, any one of the three first provisions of 1441, the removal statute, never speak to the issue and never have any... do not have any language in them that supports the idea that district courts have jurisdiction over civil actions within their original jurisdiction where there are State appellate reviews involved.
Ruth Bader Ginsburg: The question was, in Califano was review or not, not review which court, because if it was going to be any court it was going to be the Federal court.
Richard J. Brennan: Well, exactly, because it was the action of a Federal agency, and the suit was filed against the Social Security Administration.
Ruth Bader Ginsburg: But you conceded that if you had divided up your complaint... you want review of the land law commission in State court, you want your Federal questions in Federal court... that you could have done that, so why can't the city remove at least to the extent that you have a divisible complaint?
Richard J. Brennan: Well--
Ruth Bader Ginsburg: And then say to the district court, we can remove the part that's pure Federal, and for the rest, the State claims, district court you can either exercise supplemental jurisdiction or remand those. Why couldn't the city say, at least to the extent that there are Federal claims here, it's removable?
Richard J. Brennan: --Because 1441(c) says whenever a separate and independent claim or a cause of action within the jurisdiction conferred by section 1331 is joined with a nonremovable action, and you don't... we never pass the first test. This is never an action under 1331, because under 1331 it must be a civil action within the original jurisdiction of the district court.
John Paul Stevens: Moreover, isn't it true, as I read the complaint, that most of your Federal claims are... overlap State law claims that would be based on precisely the same factual disputes?
Richard J. Brennan: Yes, that is true, Justice Stevens.
John Paul Stevens: So that you couldn't really say there's a series of Federal claims involving facts A, B, and C, and State claims involving D, E, and F. The same facts are going to be involved in both the State and Federal claims. Is that not right?
Richard J. Brennan: That's true.
Antonin Scalia: Mr. Brennan, let me try another way of getting where you want to go, which seems to me more feasible. This case is a... these State administrative proceedings are appealable to State courts under a State statute.
Richard J. Brennan: Correct.
Antonin Scalia: Which says they will be appealable to a State court.
Richard J. Brennan: The city's ordinance expressly provides for that.
Antonin Scalia: Federal review of Federal administrative action is conducted under statutes... the APA... that give Federal courts review, or under special appeals statutes that give Federal courts review, or under mandamus, and injunction before the APA. We used to review them just under our general mandamus authority. But I don't... did we ever have mandamus authority to mandamus State officers? I doubt it. So maybe what we're talking about here is not so much a jurisdictional defect as a lack of cause of action that the State law created this cause of action against the State agency, and it limited the bringing of that cause of action to State courts. Now, normally a State cannot do that. If you create a cause of action I'm sure it can be... you can bring it in Federal as well as in State courts, but perhaps a different rule should apply where the cause of action is a cause of action for review of, effectively mandamus review of State officers. That's what's going on here.
Richard J. Brennan: I think that analysis is sound, Justice Scalia, and I think it's sound because it begins with the point that this cause of action arises in a State statute in a city ordinance, and for us to have marched down to Federal court and tried to file it there, most judges in the Northern District of Illinois would have dismissed it sua sponte on the grounds that this is not a Federal case. There is no Federal jurisdictional statute that--
Ruth Bader Ginsburg: Are you suggesting that in Sanders, which had its own jurisdictional provision, the 1331 was for cases where there was... the nonstatutory review cases, cases where there was not a specific statute that said, for example, Railroad Retirement Board decisions go to the D.C. Circuit, not the district court? No specific statute. But here you're saying you do have a specific statute, only it's a State statute, so therefore the 1331 does not supplant a specific provision any more than it supplanted 205 in the social security case.
Richard J. Brennan: --I think I'm saying two things, Justice Ginsburg. The first thing I'm saying is that in Califano the Court found that there was jurisdiction to review the Federal agency because of the amendment that was made in 1976 to 1331. The Court did not address at all the issue of whether the Federal courts have original jurisdiction over State administrative agency actions, and my basic point is that there is no Federal statute that one can point to which clearly intends to give the district courts appellate jurisdiction over final decisions of State administrative agencies, and that would include those cases where there is some Federal constitutional claim in them. Another reason why that rule makes a great deal of sense is that in all these administrative review cases, whether they come out of liquor agencies or aviation authorities or zoning authorities, the Federal constitutional questions should not be addressed until the plaintiff has failed to prevail on any of the State law issues.
Stephen G. Breyer: I... that's... I don't know if Justice Scalia's idea is so sound. The... I think what you're trying to do is to carve out some kind of special box for State administrative law cases, and I don't know how you do it. You're talking about the word appeal, as if that might do it. Then you talk about discretionary review as if that might do it. But a State could have a law saying all State laws applicable to State government officials are always determined through an appeal to a court, so it can't just be the word appeal. It would then be possible to immunize every State government action.
Richard J. Brennan: But--
Stephen G. Breyer: It can't just be the question of discretionary review, because I don't even know what that is, discretionary review. I mean, you're trying to simplify it, but it seems to me you're going to complexify, if there is such a word.
Richard J. Brennan: --Well, Stude stands for the proposition--
Stephen G. Breyer: Yes.
Richard J. Brennan: --that State legislatures cannot enact laws that will confer jurisdiction on Federal courts, and I don't think there's any dispute about that.
Stephen G. Breyer: No dispute about that.
Richard J. Brennan: The... it seems to me that the correct jurisdictional analysis is, what Federal statutes gives the Federal court--
Stephen G. Breyer: Right, and they're saying what does it is 13--
Richard J. Brennan: --jurisdiction over this complaint for administrative--
Stephen G. Breyer: --1441, 1367. That's the answer.
Richard J. Brennan: --Right, and 1367, which the city curiously relies on, not on 1441(c).
Stephen G. Breyer: Both. No, (b)... (a). Go ahead. Sorry.
Richard J. Brennan: It doesn't do it for them because you can't get over the original hurdle in 1367, which is that the Federal court... it must be a civil action of which the district courts have original jurisdiction, and--
Anthony M. Kennedy: Has the Congress provided, under the Education with... for Disabilities Act, review from State administrative agencies in the United States district courts?
Richard J. Brennan: --I don't know, Justice Kennedy.
Ruth Bader Ginsburg: That's a wholly Federal law scheme, and the States are used... State offices are used to administer it, but the law is Federal.
Richard J. Brennan: --Yes, and in the Ninth Circuit's opinion in Shamrock Motors they cite two RTC cases which get into this whole area of what happens when legislatures might deliberately, if you will, attempt to confer jurisdiction, and I think under the communications law somebody told me there are some of those. But I--
Anthony M. Kennedy: But they... it seemed to me that might help you in one sense, that if Congress wants this sort of scheme, whether it's Federal law or State law or a combination, it can... it can provide so by specific exemption, and that would follow your legislative history argument with reference to Califano.
Richard J. Brennan: --That's--
Anthony M. Kennedy: I don't know if that gets you there.
Richard J. Brennan: --Well, that's true, Justice Kennedy, but I still contend that the point that gets me there that says that the district court does not have jurisdiction in this case is that there is no provision in the U.S. Code in the removal statute or in the jurisdictional statutes which says or suggests, directly or indirectly, that district courts have jurisdiction.
John Paul Stevens: Well, but you really--
Richard J. Brennan: --to review appellate decisions of State administrative agencies.
John Paul Stevens: --It seems to me your argument really begs the question. It doesn't necessarily mean you're wrong, but the question as I see it is whether this is a civil action arising under the Constitution and laws and so forth of the United States. And it seems to me you might arguably take the position that there's a distinction between civil actions arising, et cetera, on the one hand and Federal claims on the other, and it may well be that an action that arises under a State statute like this, even though it includes Federal claims, does not arise under the Federal, so forth and so on, within the meaning of that provision. If you don't take that position, I don't know how you get to your destination.
Richard J. Brennan: Well, I get to my destination by saying that 1331 speaks about the district courts having original jurisdiction--
John Paul Stevens: Right--
Richard J. Brennan: --of civil actions, and this is not a case involving original jurisdiction, and going back to Stude, and Horton, and the four cases that have been decided by the four circuits, it seems to me what the court in each one of those cases has done, as well as other cases that are cited in the brief, is they look at what they characterize as the nature of the action, and nature of the action as it's used there is, does this case come out of a dispute which grows out of a final decision of a State administrative agency? Is it an appellate decision of its nature, or is it a de novo decision?
William H. Rehnquist: --How do you distinguish Sanders in that event, because surely there was a final agency action there.
Richard J. Brennan: Sure, and I don't think... it doesn't appear to me that Sanders as filed was necessarily an appellate action. There are two reasons that I think Sanders is distinguishable. The first is that while there was a decision of the Social Security Administration, the action that was filed was really a de novo action that challenged that decision, secondly in Sanders is distinguishable, because there you're talking about Federal court jurisdiction over Federal administrative agencies, and I'm not troubled by that, and I don't think the Court is troubled by that. That's not our case. Our case is review of State administrative agencies.
William H. Rehnquist: Yes, but it's one thing to say the facts are different here, but you also have to say that... and it makes some difference that the facts are different. Just to point out to a difference that doesn't really make... a distinction that doesn't make much difference I don't think gets you there, and so if you're relying on the fact that this is an appellate proceeding in the district court, I think you have to distinguish Sanders in a way that you haven't. If you're relying on the definition of civil action or something else, that needn't bother you.
Richard J. Brennan: Well, if... I guess what I would suggest, Mr. Chief Justice, is that Sanders does not in any way support the proposition that the city is arguing here that State... that Federal district courts should have jurisdiction over cases which are of their very nature appeals from State administrative agencies.
John Paul Stevens: Yes, but your key distinction should not be the distinction between appellate and original, but rather between arising under Federal law on the one hand and arising under State law on the other. It seems to me you might make a colorable argument that this case, notwithstanding the presence of Federal claims, really arises under the State administrative review statute, and therefore it doesn't come within 1331.
Richard J. Brennan: That's true, Justice Stevens, and that's the second point in our brief, and we make that point, that if you... that if this Court were to hold that for some reason the court does have jurisdiction, then it doesn't arise under, and if we lose on that, then we get--
John Paul Stevens: If it doesn't arise under, they don't have jurisdiction.
Richard J. Brennan: --Right. If there are no further questions--
William H. Rehnquist: Thank you, Mr. Brennan. Ms. Solomon, you have 3 minutes remaining.
Benna Ruth Solomon: Thank you, Mr. Chief Justice. I'd like to make two brief points in rebuttal. The first is that our primary submission here is in reliance on section 1441, which allows for removal of any civil action within original jurisdiction, and with the reference to the Federal constitutional allegations in the complaints which would be reviewed de novo as to the law and fact in the Circuit Court of Cook County. As ICS concedes, that portion, at least, they could have filed in Federal court.
Ruth Bader Ginsburg: I believe their position was that it wouldn't satisfy... at least that was the implication, I think, of Justice Stevens' question, that it wouldn't satisfy a separate and independent claim. If they're right about the State part being nonremovable by itself--
Benna Ruth Solomon: We--
Ruth Bader Ginsburg: --then the... there is no separate, separation between those two because they're so tied together by the facts.
Benna Ruth Solomon: --1441(c) we think comes into play only if 1441(a) is not sufficient, and we think 1441(a) is sufficient. Civil action within original jurisdiction coupled with supplemental jurisdiction under 1367, and that--
John Paul Stevens: What's your response to my argument? Do you understand it?
Benna Ruth Solomon: --Arising under--
John Paul Stevens: My suggested reading, that although the claim is a Federal claim, that the viewing the action as a whole as distinguished from claims in the supplemental jurisdiction statute... you use the word claims, not actions... that the action itself didn't arise under the Federal law.
Benna Ruth Solomon: --Our response to that quite simply is the Gully test, the Gully test of arising under any right or immunity as in the claims that <ICS> [= ICS] alleged in this case, the Federal constitutional claims would be decided solely by reference to the Federal Constitution. They're not decided as a matter of State law. The arising under cases, where a court considers a State cause of action and finds that it does not arise under, as we read the cases are limited to two circumstances, first where the plaintiff actually forgoes any Federal claims, and ICS did nothing if not plead numerous Federal constitutional claims. The second is the situation in Merrell Dow, where Federal law intentionally precluded a right of action, or there was no Federal right of action, and there was a Federal right of action for each and every constitutional allegation that ICS pled in its complaint. The only basis on which the court of appeals dismissed the entire case was that the mere presence in the complaint of some few claims that would be reviewed on the record required it to remand the entire case. Even ICS does not embrace that theory of contagion, and for good reason, because the Federal claims were within the district court's original jurisdiction, and the State law claims were within the district court's supplemental jurisdiction, and they were all properly decided in the district court. Thank you.
William H. Rehnquist: Thank you, Ms. Solomon. The case is submitted.
Speaker: The honorable Court is now adjourned until tomorrow at 10 o'clock.


Earl Warren: Number 19, Robert F.Kennedy, Attorney General of the United States, Appellant, versus Francisco Mendoza-Martinez. Mr. Davis, you may proceed.
Thomas R. Davis: Mr. Chief Justice, may it please the Court. This case is here on direct appeal from a judgment of the Southern District of California under 28 United States Code 1252 and it's here on direct appeal because that Court held invalid a statute of Congress, Section 401 (j) of the Nationality Act of 1940, providing that person subject to the draft who leave the country for the purpose of evading draft are expatriated, lose their nationality and Section 1252 provides for direct appeal to this Court from the judgment of any court of the United States holding invalid a statute of Congress. As the Court will no doubt recall, the case has been here twice before at the October term, 1957. The case was remanded after the decisions in the Perez and Trop cases relating to expatriation for foreign voting and expatriation for desertion. At that time, the District Court held the statute unconstitutional and it was again appealed by the Government directly to this Court. After the argument of the case, the Court sua sponte, found in the record a lurking question of collateral estoppel which it thought beclouded the record and it remanded the case to the District Court with permission to the parties to amend the pleadings to raise that issue. And the case was so remanded and as I shall stand in a min -- state in a minute, that issue was resolved adversely to the appellee by the District Court and the District Court again held the statute unconstitutional and the Government again brought the case here. Now, in this posture of the case, there are two issues before the Court. One is the non-constitutional issue on which the Court remanded the case the last time. That is the issue of collateral estoppel because Mendoza-Martinez, the appellee had been convicted of draft evasion in 1947. And the question is, whether that conviction for draft evasion in 1947 collaterally estops the Government in this case from claiming that he lost his citizenship as a result of Section 401 (j) of the Nationality Act. And the other question is the same question which has been twice here before that is the validity of the statute itself and that issue in and of itself comes here unencumbered by any dispute as to the facts because the facts had been stipulated below both on the prior occasions and on this occasion and Mendoza-Martinez has agreed that he did leave the country and remain abroad for the purpose of evading the draft. I should state at the outset for a moment that there follows this Number 20, a Court case which has a relationship to this case. In that, there was presented in that case the constitutionality of the successor provision in the 1952 Act. This case arises under the 1940 Act. The successor provision, as I will try to point out in that case, is in the respect pertinent here is the same as Section 401 (j) with which we are dealing. But there are nonconstitutional issues in the Court case which are different from the non-constitutional issue in the present case. And there is one further fact which I should mention at the outset which may have some significance and may not which does differentiate the court case from the present case, because this appellee is a dual national, that is since birth, he was a national of both Mexico and the United States. The Court in the next case so far as we know is only a national of the United States. Now, the facts are very simple.
William J. Brennan, Jr.: Now, before you get to them Mr. Davis, this is a one judge tentative to one constitutionality --
Thomas R. Davis: Yes, but --
William J. Brennan, Jr.: -- the court was a three-judge.
Thomas R. Davis: Yes.
William J. Brennan, Jr.: Why wasn't there three-judge court required here?
Thomas R. Davis: The answer Mr. Justice is that a three-judge court is only required when an injunction is sought against the enforcement or operation of an act of Congress, an injunction as the words of the statute.
William J. Brennan, Jr.: Well, what was sought by this complaint?
Thomas R. Davis: Declaratory judgment.
William J. Brennan, Jr.: Well, is that so, at page 23.
Thomas R. Davis: Well, may I go into that for a moment, Mr. Justice. I have two answers. And one is that as this case was brought originally and if the Court will look at the record of the 1957 term I have examined, the amended complaint which came to the Court at that time as solely for declaratory judgment.
William J. Brennan, Jr.: You mean we don't have the amended complaint here?
Thomas R. Davis: You don't have the first amended complaint. It was unfortunately never printed.
William J. Brennan, Jr.: Why would it -- well now, what is before us? The second or one --
Thomas R. Davis: Yes, but I'm quite --
William J. Brennan, Jr.: -- concerned about it is --
Thomas R. Davis: Yes, but what I'm trying to say is that that was amended after the case was remanded at the preceding -- by the preceding decision of the Court and which consent was only given to the parties to amend with respect to the issue of collateral estoppel. And my first point is that this amendment of the complaint at that time when the case was remanded before was not pursuant to the Commission which this Court had given in the 1959 term and it's remanded only on the issue of collateral estoppel. So that this amendment of the complaint to ask for an injunction against the deportation order which is on page 23 of the record was not -- it's pursuant to the mandate of this Court and therefore it was not a proper amendment. That's my first point in that.
William J. Brennan, Jr.: But where -- how do we know all this? From what --
Thomas R. Davis: Well, the mandate of the Court is in the record. The mandate of the Court of the 1959 term is in the record.
Tom C. Clark: Are there any more amendment --
Thomas R. Davis: At page -- at page 20, it is ordered and adjudged by this Court, that this Court be in the same as hereby remanded to the District Court with permission to the parties to amend the pleadings if they so desire to put in issue the question of collateral estoppel and to obtain an adjudication upon it. As I read that, it gives consent to one amendment of the complaint or one subject. It does not give consent to other amendments of the complaint. That is my first answer --
William J. Brennan, Jr.: Well -- is this second amended complaint before us is part of the record upon which we have to decide this case?
Thomas R. Davis: Yes, but one of my -- my statement, Mr. Justice Brennan, is that this amendment was an improper amendment which the Court need not pay attention to in deciding this case. I have other answers but that's my first one. And the second answer --
Felix Frankfurter: A very wise man once said, “One good answer is enough.”
Thomas R. Davis: But obviously, Mr. Justice Brennan may not be satisfied with that answer --
Potter Stewart: Naturally, obviously, I can assure you, he's not satisfied.
Thomas R. Davis: Then I would go on --
Felix Frankfurter: I didn't say that your -- the answer you've given me is (Voice Overlap)
Thomas R. Davis: I -- I under --
Felix Frankfurter: Let me ask you a better one.
Thomas R. Davis: I understand, Mr. Justice. The second answer I have --
Earl Warren: Aren't you going to give us -- tell us why that isn't -- why it isn't a proper amendment.
Thomas R. Davis: Because the Court remanded the case only to amend the case -- amend the pleadings with respect to collateral estoppel. And this amendment asking for an injunction in addition to a declaratory junction does not relate to the issue of collateral estoppel, has asked for another type of additional relief going to the whole case.
William J. Brennan, Jr.: Let me get this clear Mr. Davis. You're telling us now that this prayer at page 23 of the second amended complaint asking that defendants are enjoined and restrained. You say there was no such prayer in either the original complaint --
Thomas R. Davis: I don't --
William J. Brennan, Jr.: -- or the first amended complaint?
Thomas R. Davis: I don't know about the original complaint but the First Amendment complaint which I have seen in the record of the Court at the 1957 term which was first here did not contain this paragraph four.
Potter Stewart: That would also be the record that was before us in the 1959 (Voice Overlap) --
Thomas R. Davis: That is right.
William J. Brennan, Jr.: Well, that might explain why none of us saw the possibility of the three-judge court question with that matter.
Thomas R. Davis: I think actually --
William J. Brennan, Jr.: Perhaps why you didn't see it too.
Thomas R. Davis: I think actually -- I think it doesn't exist even apart from this Mr. Justice.
William J. Brennan, Jr.: I know you do.
Thomas R. Davis: For the reason --
William J. Brennan, Jr.: On the face of this complaint.
Thomas R. Davis: No, even on the face of the complaint.
William J. Brennan, Jr.: Alright. But it --
Thomas R. Davis: The reason is that the Court -- that the Court has indicated that a three-judge court is to be convened only where there is to be an injunction against the enforcement of a federal statute and the mere asking for an injunction in other respects or the mere asking for the invalidation of the statute so a declaratory judgment doesn't trigger the three-judge court provision. Now this --
William J. Brennan, Jr.: Is there any case on that latter proposition?
Thomas R. Davis: Well, yes. The case that I'm about to cite to Your Honors is the case of Flemming against Nestor which was decided two terms ago in an opinion by Mr. Justice Harlan.
William J. Brennan, Jr.: Harlan.
Thomas R. Davis: And we think it's quite close for this reason. There was in that case -- the Social Security Administration had denied social security benefits to Nestor because he had been deported for certain reasons and under the statute he was no longer entitled to benefit. He attacked the constitutionality of that provisional statute. And of course, he was denied relief by the administrators. And he brought suit in the District Court not asking for a three-judge court, but under the special provision of the Social Security Act which provides a review by a single-judge. And, he -- the question -- this Court preserved the hearing on the merits, the issue of whether there should have been a three-judge court. And the Court decided on that time that in that particular -- in that kind of case, where he was seeking a review of the denial of benefit even though it was --
William J. Brennan, Jr.: That was of an administrative decision.
Thomas R. Davis: That's right and the same is true here, because this is being brought under Section 503 of the Nationality Act. Perhaps, if I complete my statement of the Flemming case or the Nestor case, I'll be able to show the analogy, which we think exists. The Court there said that even though the District Court, the single-judge court, had the power to pass on the constitutionality of the statute in reviewing the denial of benefits, it didn't seek -- the case didn't seek an injunction against the operation of the statute as a whole, and therefore, a one judge court was proper, and it upheld the jurisdiction of the District Court and went on to the decide the merits. Now, the analogy that we think exist in this case, that this is too, also, being brought under a special provision of the statute, Section 503 of the 1940 Act which provides for a declaratory relief against denial to citizenship claims by the administrators.
William J. Brennan, Jr.: Well, except this, Mr. Davis. If we had only this complaint before us, why isn't this complaint in fact seeking a declaration that he was a citizen and in addition, an injunction enforcing that declaration, not merely as in Flemming and Nestor, the reversal of an administrative action?
Thomas R. Davis: Well, I think in --
William J. Brennan, Jr.: On the face of this complaint, why isn't that what this complaint is?
Thomas R. Davis: I think in Flemming and Nestor that -- that -- I do not recall that they ask for an injunction in addition though they may have. I'm not sure about that. But what they --
William J. Brennan, Jr.: My recollection --
Thomas R. Davis: What they basically ask for was a determination that the statute was invalid, and therefore, that the administrator was wrong. Here, what is being asked is for a declaratory judgment, in fact, the very first -- said portion of the complaint on page 21 says “This is an action for a declaratory judgment under the.”
William J. Brennan, Jr.: How much is it true? It's a declaratory judgment that he is a citizen and the relief of an injunction against the enforcement of the deportation orders on the ground that he is a citizen, not merely a reversal of an administrative decision, is it?
Thomas R. Davis: Yes, but compared to the complainant in the court came where they ask for an injunction against the enforcement of the statute and enforcement of the statute not only an injunction against the enforcement of a particular administrative decision. I do not recall at the moment whether in Flemming and Nestor, though it may have been, but I don't recall, they added on to their original review relief provision -- request for relief. And they're -- and also to enjoin the Secretary --
William J. Brennan, Jr.: I don't think so. You may be right but --
Thomas R. Davis: I'm not --
William J. Brennan, Jr.: I think all they asked in Flemming and Nestor was for a judgment and I'm quoting “affirming, modifying or reversing the administrative decision”.
Thomas R. Davis: I'm not certain --
William J. Brennan, Jr.: I thought that's all I ask.
Thomas R. Davis: -- whether they had it or not, but I think it would have made a difference if they had. I think that if they had sought -- follow the statutory proceeding of the Social Security Act and had asked for what they ask that had then added a catch off phrases here asking for an injunction against the secretary to prevent him from enforcing the statute against it or denying relief.
William J. Brennan, Jr.: Well, certainly again --
Thomas R. Davis: Yes sir.
William J. Brennan, Jr.: On the face of this amended complaint, what's asked is an injunction against enforceable deportation letter.
Thomas R. Davis: Well, that's a different thing from an injunction against the enforcement of the statute. As I think --
William J. Brennan, Jr.: Well, deportation orders have to rest on the constitutionality of facts.
Thomas R. Davis: Well, yes, yes. I agree with that. But, if I come back --
William J. Brennan, Jr.: Well, I don't see how that is an enforcement -- an injunction against the enforcement of the statute.
Thomas R. Davis: I come back to the thing I said before Mr. Justice Brennan that where there is a statutory proceeding, a special statutory proceeding such as existed in Flemming and Nestor, and as we think exist here, a special statutory proceeding will have more to say about this in the next case, but it applies here where there is a statutory proceeding for review, in here it's called the declaratory judgment type of action.
William J. Brennan, Jr.: Well, it is a declaratory judgment though under the general declaratory statute.
Thomas R. Davis: No, this is not.
William J. Brennan, Jr.: 1503 (a)?
Thomas R. Davis: This is under the special provision.
William J. Brennan, Jr.: 1503 (a)?
Thomas R. Davis: 1503 (a) of Title 8 --
William J. Brennan, Jr.: That is a special --
Thomas R. Davis: -- is a special provision.
Potter Stewart: Which in turn refers to the (Voice Overlap) declaratory judgement statute?
Thomas R. Davis: Yes. But it provides a special provision.
Potter Stewart: Right.
Thomas R. Davis: And our argument is that whether there is a special provision of that kind --
William J. Brennan, Jr.: It's not from a special -- not from administrative declaratory.
Thomas R. Davis: Well, it is only triggered if there has been an administrative denial. It is not precisely the same as the kind of review you have in a labor board case but you can just start it. If you think you want a declaration of your nationality, you have to had an administrative -- a final administrative denial of your plan, and that triggers the special statute and when you -- when a review proceeding is brought under this -- a special statute of that kind as in Flemming against Nestor, and where you are really seeking a review in reverse of an administrative determination of nationality as it's true in Flemming against Nestor, we think that --
William J. Brennan, Jr.: If I accept your words and your description that's what it is, that's -- that's an accurate descriptive you are having.
Thomas R. Davis: Well --
William J. Brennan, Jr.: You have to get the administrative determination.
Thomas R. Davis: Yes.
William J. Brennan, Jr.: But then you have to get a judicial review by a way of declaratory judgment and I suggest that if you answer that, a prayer for injunctive relief has certainly this second amended complaint. Then you do raise the question of the application of 2283 and the requirement for three-judge court.
Thomas R. Davis: Mr. Justice, I'd say again that if in the Nestor case, the plaintiff there had raised -- and there had said four after the review proceeding and declaratory judgment and we seek an injunction against the Secretary's denying benefits to may -- on the ground of the invalidity of the statute. I think that the decision of the Court would not have been any different than it was, and that the Court would have said that a single-judge could properly have -- hear the case.
Felix Frankfurter: Am I right in saying that underlying your specific argument is the assumption, the starting point that the three-judge court provision must be strict according to the letter enforced and no argumentative consideration, something just as good as that.
Thomas R. Davis: I think that is in the course of decisions of the Court that the Court --
Felix Frankfurter: But at the bottom of it --
Thomas R. Davis: The Court has indicated that there can be determinations of unconstitutional --
William J. Brennan, Jr.: Well, let's see. Let's say for example, suppose we don't have this particular problem but one just relies under the declaratory judgment action --
Thomas R. Davis: I think --
William J. Brennan, Jr.: -- to attack the constitutionality of the federal statute. And all he seeks is a --
Thomas R. Davis: Declaratory judgment.
William J. Brennan, Jr.: -- that was all that was done in this case, is a declaration of unconstitutionality of the federal statute, that in that way, you can get around the requirement --
Thomas R. Davis: I think that has always been the interpretation --
William J. Brennan, Jr.: But that hasn't -- that -- has this Court ever held that?
Thomas R. Davis: No, I think the issue is never been decided but I think that has been the course of interpretation.
William J. Brennan, Jr.: Well, that's a rather easy way to get around the three-judge requirement, isn't it?
Thomas R. Davis: Well, the Congress provided an injunction because they were interested in not stopping the wheels of administration from going. An injunction has an effect which is declaratory judgment.
William J. Brennan, Jr.: No, tell me. Tell me, if there's a declaratory judgment that an act of Congress is unconstitutional, is there any member of the executive department charge of this enforcement that would in fact enforce it?
Thomas R. Davis: Oh, yes. I think --
William J. Brennan, Jr.: Sure he would.
Thomas R. Davis: -- I think that that he would enforce (Voice Overlap) the particular case.
William J. Brennan, Jr.: It's a judicial determination that is unconstitutional.
Thomas R. Davis: Yes, if it were decided by a lower court, yes.
Speaker: But it has been -- the defense argument about it (Inaudible).
Thomas R. Davis: That made me. I'm not aware of that. But I think --
William J. Brennan, Jr.: I'm not aware of any either.
Thomas R. Davis: -- and I think that's one reason why the Congress passed 28 U.S.C. 1252 providing for a direct appeal, because where there -- and that's not limited to injunctions that can cover declaratory judgments any kind of civil proceedings.
William J. Brennan, Jr.: But what was the idea of a three-judge court?
Thomas R. Davis: I think the idea originally, and of course it came in with relations to state -- of state legislation. It came in long before there were a declaratory judgment or at least before they come long before the federal declaratory judgment passed. And the common way of proceeding in those cases was to enjoin a state from enforcing a particular statute. Of course, it was only -- the only people who could take, what shall I say, benefit of it were the plaintiffs and those incriminated.
William J. Brennan, Jr.: This is the long way around to saying that the Congress didn't want single-judges declaring state statutes or preventing the enforcement of state statutes in the grounds of unconstitutionality by enjoining their enforcement.
Thomas R. Davis: No, I think that Congress didn't care about single-judges saying that state statutes were unconstitutional. It didn't want single-judges to enjoin the operation of the statute, so that the entire administrative procedure or whatever it was under the statute would come to halt. I think that that's true. Then, I think history is also showing that there is kind of narrowing in the eyes of Congress of the impact of the three-judge court provision, so that as time went on, and it was applied to the federal government later, and then as time went on, this Court indicated that there could many decisions of unconstitutionality without have -- without a three-judge court by a single-judge court. And then in 1937, in the New Deal days, the Congress put in its provision that I stressed, the 1252, where a single-judge could do it because they understood that there would be proceedings where a single-judge would hold the statute of un -- unconstitutional of federal statute. They want a quick review, but I think that the difference -- there is a difference between quick review in this Court which they didn't want, and provision for a hearing by a three-judge court which they were willing to leave in the terms of which it had classically been an injunction against the operation or enforcement of the statute. That Mr. Justice is our position.
William O. Douglas: On the merits, are there any decisions apart from the lower court ruling in this case that a resident alien who leaves for the purpose of evading the draft and returns could be prosecuted for evading the service?
Thomas R. Davis: Resident alien? No. There are no -- it could be prosecuted. I don't know. I haven't looked up the decisions relating to resident aliens. I do not know.
William O. Douglas: They're the ones that --
Thomas R. Davis: No.
William O. Douglas: But you say in your brief would be subject to prosecution?
Thomas R. Davis: We say that both citizens and resident aliens would --
William O. Douglas: Yes.
Thomas R. Davis: -- I come then to the collateral estoppel issue which --
William O. Douglas: Yes but --
Thomas R. Davis: -- which you are talking Mr. Justice.
William O. Douglas: Is this the only decision -- Judge Jertberg's decision. Is that only one --
Thomas R. Davis: I don't think Judge Jertberg's decision has to do with resident aliens. I think it has to do with the man who was a citizen and then left the country and lost his citizenship under Section 401 (j) which was enacted in 1944. There are other decisions --
William O. Douglas: But I thought we have to decide the resident alien point in this case.
Thomas R. Davis: No, I don't think you'll have to decide the resident alien point, Mr. Justice Douglas. The only possible relevance (Voice Overlap) --
William O. Douglas: (Voice Overlap) collateral estoppel, don't you?
Thomas R. Davis: Estoppel and if I may expatiate a little on that which is the other uncons -- nonconstitutional issue in the case, our -- let me recall. The Court raised this issue sua sponte, gave permission to the parties to amend the pleadings and send the case back. The appellee did amend his complaint to raise this issue. There was no hearing in the District Court in the sense that there was oral evidence or affidavits. There was an oral argument by the parties, and Judge Jertberg decided against the appellee. He rejected the issue of the defense of collateral estoppel and he put it that way. And, of course, we think he was correct. Now, the facts with relation to that are all in the indictment in criminal judgment of the -- in the earlier 1947 proceeding. And they appear in the record and that it appears the 2426 and the judgment of 2728. What happened in 1947 is that there was this indictment returned. The defendant pleaded guilty to count one of the indictment, count one was a provision that charged him with evading service in the draft by going to Mexico and remaining there until on or about November 1st, 1946. But it's very important, I think, for the issue of collateral estoppel that the indictment didn't charge that he was a citizen of the United States. It said as you will see on page 24, Franc Martinez-Mendoza, a male person within the class made subject to Selective Service under the Selective Service and Training. And the reason why that was said was that the Selective Service and Training Act related not only to citizens of the United States, but to resident aliens. It covered all citizens and resident aliens, and it was common to phrase indictments in the term -- in the general terms. And so -- now, what happened -- what happened was that the defendant pleaded guilty --
William O. Douglas: There is no -- would be no collateral estoppel if he was a resident alien.
Thomas R. Davis: There would be no -- we think there was no collateral estoppel even he were a citizen as I will to try to point out which I think it was, but I think there's -- the whole problem of collateral estoppel arises from, I think, the definition of that principle is very different from res judicata which says that if you have the same cause of action, anything that was or could have been raised in first cause of action is conclusive. Collateral estoppel is different. It provides that the parties are bound only by those issues which were actually litigated in the earlier case or were necessarily included in the judgment. And since clearly here, the causes of actions are different, it's the doctrine of collateral estoppel that applies. As I will try to show in the next few minutes, neither branch of the doctrine of federal estoppel applies here. It wouldn't actually put in litigation -- litigation the issue of citizenship because the government's indictment didn't say anything about the citizenship. He was a male person subject to the Act, and he pleaded guilty, and the judgment is in the same term. So, the issue of citizenship was never put in litigation.
Felix Frankfurter: He could have put it, couldn't he?
Thomas R. Davis: He could have put in litigation but he did not, because --
Potter Stewart: He could have, how?
Thomas R. Davis: He could have put it by pleading not guilty and denying that he was subject to the Act.
Potter Stewart: Denying he was a male person?
Thomas R. Davis: No, subject to the Act.
Earl Warren: Mr. Davis, when did he leave the country?
Thomas R. Davis: 1942.
Earl Warren: 1942?
Thomas R. Davis: 1942.
Earl Warren: And when was the Act amended to apply to aliens?
Thomas R. Davis: 1944.
Earl Warren: So, at the time he did leave --
Thomas R. Davis: Yes.
Earl Warren: -- he could have only have applied to a citizen.
Thomas R. Davis: Or resident aliens.
Earl Warren: No, I thought you said in 1944.
Thomas R. Davis: Yes but --
Earl Warren: It was amended 1922.
Thomas R. Davis: Oh, I'm sorry. You mean the Expatriation Act for the part. So, the Selective Service Act applied to resident aliens all along.
Earl Warren: Oh, I thought that's --
Thomas R. Davis: No, I'm sorry --
Earl Warren: -- that's when amended.
Thomas R. Davis: No, it applies from the beginning to resident aliens.
Earl Warren: Yes.
Thomas R. Davis: Or this from any time it's relevant to this case. It applies to resident aliens as well as to citizens. The issue was not actually put in litigation. Now, was it necessarily decided by the judgment? And I think, it's important to say that the rule is generally stated that it has to be clearly necessarily decided not a mere matter of speculation. The --
Potter Stewart: Before you proceed, I'm a little confused, I guess. But, how could he have put this question an issue in this criminal case?
Thomas R. Davis: I think that --
Potter Stewart: If it were a -- if it was a criminal offense whether or not he was a citizen as I understand you.
Thomas R. Davis: Well, I think that he -- it would have got in much good to put it an issue because he would have been liable even if he were just a resident alien before he went to Mexico. And -- but if he thought that for other purposes, it was important for him to get a decision in the litigation that he was or was not a citizen, I think he could have put an issue by asking for bill of particulars.
William J. Brennan, Jr.: But he could no have been a resident alien when he went to --
Thomas R. Davis: Well, he was a resident.
William J. Brennan, Jr.: When he went in 1942, there was nothing which stripped him of his American citizenship.
Thomas R. Davis: No, but he was a resident of the United States.
William J. Brennan, Jr.: Oh, he was an American citizen in 1942.
Thomas R. Davis: Well, yes. What I'm saying to Mr. Justice Stewart is that if he thought it was necessary to get himself a determination in the criminal case as to whether he was a citizen or not, he could have raised that issue. I don't think it would have done him any good in the criminal case.
Speaker: This is not at all relevant to his guilt or innocence of the offense.
Thomas R. Davis: That is the basis why I think that there was no collateral estoppel here.
Felix Frankfurter: Well then, is that quite so, he might have attacked the -- the mere fact that he was in the United States doesn't prove he was a resident alien.
Thomas R. Davis: That's true. I think as a matter of fact, he was.
Felix Frankfurter: That's isn't the question.
Thomas R. Davis: Yes.
Felix Frankfurter: But lawyers -- wouldn't they do things that are not so. Because --
Thomas R. Davis: Yes.
Felix Frankfurter: -- they think they're not so.
Thomas R. Davis: Yes, you are quite --
Felix Frankfurter: They might challenge it on both grounds.
Thomas R. Davis: That's right. I think as a matter of fact, it was done no good because the fact --
Felix Frankfurter: That isn't the question.
Thomas R. Davis: Yes. He could have.
William O. Douglas: Would a resident alien be relieved from responsibility if he ceased to be a resident?
Thomas R. Davis: But the whole gist of this offense occurred in 1942. That's the gist of the offense when he was clearly a resident alien or fairly a citizen. Before the Expatriation Act occur for the past in September 27th, 1944. That's the gist of the offense. That's the gist of count one as shown by the other two counts which the District Judge in the criminal case thought cast light on the first count.
William O. Douglas: I just assumed that an alien who left the country who had been a resident would cease to be a resident -- of the resident on leaving.
Thomas R. Davis: Not necessarily at all. This Court has held that in the Chew against Colding case that a man who was a resident and was debarred at the port from coming back was still a resident of the United States because he had lived here so long, and there was no showing that he had given up his residence, so that -- it isn't true at all, I think, Mr. Justice.
William O. Douglas: Was there any facts in this case to indicate that if he had the -- treated as an alien, that he still have the purpose to maintain his residence here?
Thomas R. Davis: There were no facts because there was a -- this was a plea of guilty. But, the point I'm trying to make, Mr. Justice, is that he would have been guilty of this offense even if he gave up his residence when he went abroad because he was at the time he was in the United States subject to the draft as a citizen or as a resident alien, and that by going abroad, he did not absolve himself from the criminal offense which had already been committed. I should -- some question has been raised by the appellee as to the use of the language in the indictment and that they remain until on or about November 1946. I would like to say it was -- we think that those words were unnecessary for the indictment. There were surplusage, but if they hadn't been there if it just said, and they remain, the indictment would have been a good indictment. I will also that we do not think that we, the government, would have been able to rely upon this criminal conviction as res judicata for the period up to November 1st, 1946, if the tables had been turned. That is I don't think that we would have been able to rely upon this indictment and the conviction as showing that this man had gone abroad for the purpose of evading the draft, and remain there up to and until November 1st, 1946. My time is up.
Earl Warren: Mr. Davis.
Bruce J. Terris: Mr. Chief Justice, if the Court please. I find myself in the very peculiar position of barely supporting my opponent with whom I have contested this issue so long on the first question before us, because I join with him in asserting that this properly should have been a one-judge court. In addition to the contentions ably advanced by Mr. Davis, may I also inquire whether the true task is not what in excessive zeal, I may have included in the prayer of the complaint, but rather what the trial judge in his considered judgment put in his judgment. And, in this particular case as it happens, some of what I'm saying is ex cathedra now, the record could easily be augmented to show what I'm about to say. I submitted a proposed judgment which included all of the injunctive relief which I thought was proper in the case. The United States attorney objected, citing a case in our own Ninth Circuit, which I think is relevant here, although I'm not sure I can pronounce it but Ng Kwock Gee versus Dulles 221 F.2d 942. And the gist of that case was at the Court, in similar circumstances, rejected the attempt of counsel to obtain injunctive relief. And so in our case, Judge Jertberg wrote to us, and said that he thought the United States Attorney was correct, and that I have been excessively zealous perhaps in the drafting of my proposed judgment, and in his own office, drafted a modified judgment in which he was very careful to omit any reference whatever until injunctive relief.
John M. Harlan II: Could I have the page number of that unpronounceable case?
Bruce J. Terris: Yes, Your Honor. I have it as 221 F.2d 942.
John M. Harlan II: 942 thank you.
Speaker: I take it, you have considered and rejected, that you disagree with the Solicitor General, and then you disagree with the right and you could have another goal, wouldn't you?
Bruce J. Terris: Your Honor, I have considered that. We're here for the --
Speaker: You have not, I guess.
Bruce J. Terris: We're here for the third time. I know that the Court has heard the constitutional contentions which are involved here time and time again. I earnestly assert that it is time now to reach the question. By saying that though --
William J. Brennan, Jr.: These were really a three-judge case. I gather we couldn't read it. There's no jurisdiction in the judgment below if this should have been a three-judge court.
Bruce J. Terris: That might be, Your Honor.
William J. Brennan, Jr.: That might be? It would be, wouldn't it?
Bruce J. Terris: In another words, the Court would not have jurisdiction if we had had three-judge.
William J. Brennan, Jr.: We have a jurisdiction to say that the lower court had no jurisdiction, and we have to say it had no jurisdiction.
Bruce J. Terris: It could have been a three-judge court.
Felix Frankfurter: Anyhow, you don't want to embrace that opportunity.
Bruce J. Terris: I do not, Your Honor.
William J. Brennan, Jr.: I'm not surprised.
Bruce J. Terris: This procedure of a Circuit Court of Appeals in this case rejecting the attempt of counsel to obtain more relief than the action entitled them to happen in Hall versus Welch. I'm having to cite orally, because I think Your Honor -- Your Honors understand that I received a very late communication concerning this question, just about a day before I left from California, Hall versus Welch 185 F.2d 525. I thoroughly agree with Mr. Davis that the assertion of that the word “injunction” should somehow be enlarged by judicial construction to include an action for declaratory relief simply because derivatively or contingently, there may also be an impact on federal officers. I think that assertion is entirely correct and I concur with them in it. I have looked at the F.2d reports on Trop and Perez, and it does not appear clearly whether injunctive relief was sought, but it does seem quite clear that a single-judge sat in both cases. And I would urge again that what is really determinative here is not what counsel sought, but what the Court gave.
Speaker: Do you think that the stipulation appearing particularly at record 35 has any significance while your stipulation issue the fact would apply within the issue that the law would apply?
Bruce J. Terris: Well, I'm certainly bound by it, Your Honor, yes.
Speaker: Well, I don't think it's about an injunction.
Bruce J. Terris: No, it doesn't. Thank you.
William J. Brennan, Jr.: You did the (Inaudible) that reviewed the statute if it reaches the case thoroughly, reaches it by merely or even merely with your application for an injunction. That's the way the statute reads from the fact what the judge gave or anything else to which it's stipulated has nothing to do with it.
Bruce J. Terris: Well, Your Honor, we could think of it this way, in terms of different counts of the same complaint. A court can reasonably assume jurisdiction of a particular count and try it and validly try it and reject taking jurisdiction over another count and there would be no essential difference between that and what has happened here. I know that the hour is late. I believe that the constitutional issues have been exhaustedly briefed, but I would like to speak on the other nonconstitutional issue which has emerged from the Court sua sponte, and that is this question of collateral estoppel. The Solicitor General has, in my opinion, avoided the essential question here with almost unbelievable deafness. There is a basic fact before the Court which is agreed upon and stipulated, too. And that is, that in 1944, when this Section 401 (j) was passed, Mendoza was a nonresident alien. He was in Mexico, because he had gone there in 1942. Now, when Judge Yankwich of our Southern District subsequently tried him and found him guilty, he found him guilty of a continuing offense not from 1942 to 1944 on this statute would have made him a nonresident alien, and thus, not open to or rather available for Selective Service. But Judge Jertberg found him guilty of a continuing offense from 1942 until 1946. And I assert in closing if the Court please, it's says --
Potter Stewart: It's a guilty plea, wasn't it?
Bruce J. Terris: Yes, it was, Your Honor. He pleaded guilty to it, and if that constitutes an admission, I can't imagine in what context it constitutes an admission. Because the judgment of conviction made after all of the proceedings where true, reincorporated the same finding, is it hypertechnical? Is this is a piece of logic that has no real flesh and blood significance? Judge Jertberg had to decide the extent of punishment for a man who had committed an offense over a given period of time. If it had been two years instead of four years, I urge that it is a reasonable and proper inference that he would have taken a lesser period of time into consideration.